In re Estate of Hesse, Civil 4618

• Decision Date: 28 March 1945
• Docket Number: Civil 4618
• Citation: 157 P.2d 347,62 Ariz. 273
• Parties: In the Matter of the Estate of Catherine Hesse, Deceased: v. DANIEL J. GERCKE, Bishop of the Roman Catholic Church of the Diocese of Tucson, as Executor, and ROMAN CATHOLIC CHURCH OF THE DIOCESE OF TUCSON, a Corporation Sole, Appellees ELIZABETH McNUTT, Appellant,
• Court: Arizona Supreme Court

157 P.2d 347

62 Ariz. 273

In the Matter of the Estate of Catherine Hesse, Deceased:

ELIZABETH McNUTT, Appellant, v. DANIEL J. GERCKE, Bishop of the Roman Catholic Church of the Diocese of Tucson, as Executor, and ROMAN CATHOLIC CHURCH OF THE DIOCESE OF TUCSON, a Corporation Sole, Appellees

Civil No. 4618

Supreme Court of Arizona

March 28, 1945

APPEAL from a judgment of the Superior Court of the County of Pima. Arthur T. LaPrade, Judge.

Judgment affirmed.

Messrs Krucker, Fowler & Dodd, of Tucson, Arizona; Mr. Charles E Taintor, of Los Angeles, California, for Appellant.

Messrs O'Dowd & O'Dowd, and Mr. Clifford R. McFall, for Appellees.

Udall, Superior Judge. Stanford, C. J., and Morgan, J., concur. Arthur T. LaPrade, J., having disqualified, as he was the trial judge, the Honorable Levi S. Udall, Judge of the Superior Court of Apache County, was called to sit in his stead.

OPINION

Udall, Superior Judge.

Catherine Hesse at her death on March 20, 1941, at the age of 76 years, left a will bearing date of April 25, 1939, and a codicil dated October 30, 1940. The codicil merely changed the amount of one specific bequest. These two documents were admitted to probate as her last will and testament on April 15, 1941. Shortly before a year expired Elizabeth McNutt, one of two sisters of decedent, instituted a contest alleging undue influence by persons unknown, and incapacity to make a will.

Upon plaintiff's (parties will be referred to as they were in the trial court) demand the will contest was tried before a jury, and upon the conclusion of plaintiff's case the court granted defendants' motion for an instructed verdict, finding the will to be valid. Thereupon the court entered judgment sustaining the will, from which judgment this appeal was taken.

Some procedural questions are raised: Paragraphs 8 and 9 of the petition to contest attack the validity of specific bequests to the Roman Catholic Church, which are contained in clauses 6, 7, and 8 of the will. The bulk of the estate is purportedly disposed of therein, one being the residuary clause which is most bitterly attacked. The gist of this attack is that an invalid trust is attempted to be created; that there is no qualified trustee to take; that the beneficiary is not a corporation sole; that there is no separation of the legal and equitable title between purported trustee and beneficiary; that the purported trust violates the rule against perpetuities; that the cy-pres doctrine has no application; that a resulting trust is created in favor of petitioner. Then she alleges that if these provisions of the will are declared invalid that the property would then pass to petitioner and others under the law of descent and distribution as if the decedent had died intestate.

While the conclusion last stated is doubtless correct, the trial court refused to permit the reading of these paragraphs of her petition to contest, or the corresponding paragraphs of the answer, to the jury and also refused to permit the introduction of any evidence in support of these allegations. The reason given by the court for these rulings was that no question of fact was involved, that it was purely a question of law, and that furthermore none of these matters had to do with the legality or validity of the will; that in this will contest proceeding the court was not concerned with the interpretation or effect of specific provisions of the will. These rulings form the basis of two assignments of error.

Manifestly the ruling of the trial court was correct in all respects, for the reason that our statute (Arizona Code Annotated 1939, Secs. 38-201 to 38-226) governing probate and contest of wills expressly limits the issues that may be raised on a will contest to those involving (1) testator's competency to make a will, (2) his freedom at time of execution of the will from duress, menace, fraud or undue influence, (3) due execution and attestation of the will by testator and subscribing witnesses, and (4) any other substantial ground affecting the validity of the will (Sec. 38-210); and expressly requires the court to admit the will to probate, if satisfied, from proof or facts found by jury, that (1) the will was duly executed; and (2) the testator when he executed the will was of sound mind and not acting under duress, menace, fraud or undue influence (Sec. 38-213). Thus, by the express provisions of those two sections the jurisdiction of the court is limited to determination of "the factum of the instrument" -- the will.

This is what some authorities term the old common-law issue of devisavit vel non. 1 Bancroft Prob. Practice, Secs. 131, 132, 133, page 239 et seq. Sporn v. Herndon, 190 Okl. 149, 121 P.2d 602.

The prior holdings of this court have drawn a distinction between the validity of the instrument as a will and how much effect can be given its terms.

In the case of In re Estate of Harris, 38 Ariz. 1, 296 P. 267, we pointed out that if the instrument shows animo testandi and complies with all statutory requisites that it should be admitted to probate as a will even though all of its terms are not capable of being enforced. In the later case of In re Estate of Monaghan, 60 Ariz. 346, 137 P.2d 390, we quoted from 28 R. C. L. 377, which correctly outlines the scope of the functions of the probate court when a will is propounded for probate and sets forth the matters that are not concluded by a decree admitting a will.

The same rule obtains in other jurisdictions having statutes practically identical with ours. In Re Cook's Estate, 173 Cal. 465, 160 P. 553; Mantz v. Gill, 147 Okl. 199, 296 P. 441, 445; In re Schmidt's Estate, 15 Mont. 117, 38 P. 547.

A "will contest," strictly speaking, is any kind of a litigated controversy concerning the eligibility of an instrument to probate as distinguished from the validity of the contents of the will. The question of a will or no will valid under the law is the sole issue on a contest proceeding. Legal questions involved in the construction or meaning of a validly executed will are not grounds of contest. For instance, would it not be a travesty on justice to deprive some person of a legacy in a validly executed will by denying it probate merely because there happened to be some invalid provision contained therein.

It would appear that here the plaintiff has mistaken the scope of a will contest. She should raise these questions during probate as an incident to the statutory proceeding to determine heirship, (Secs. 38-1518 et seq., Arizona Code Annotated 1939) then the could would have jurisdiction to construe the will, 3 Bancroft's Probate Practice 1954, Sec. 1200, or the validity of a clause may even be attacked on a petition for final distribution, as we pointed out in the case of Lowell v. Lowell, 29 Ariz. 138, 240 P. 280.

The plaintiff next assigns as error that the court directed a verdict upholding the validity of the will without requiring that all of the subscribing witnesses to the will and codicil who were present in the county be produced by the proponents of the will and examined, or their absence accounted for. The meager record before us shows that this was not required of defendants.

Were this contest an opposition to probate of a will in the first instance, as is provided for under Sec. 38-210, Arizona Code Annotated 1939, the statutory requirement (Sec. 38-212) for the production of the subscribing witnesses or accounting for their absence would apply, for the reason that at that stage of the proceedings there are really two matters before the court: (1) A petition for the probate of the will, which is an ex parte proceeding in rem, with the burden upon the petitioner to prove the material allegations of his petition. (2) A contest of the probate of the will which, while a proceeding in rem, is also an adversary proceeding, where the burden of proof is upon the contestant to establish the grounds of his contest. Bancroft Probate Practice Vol. 1, Sec. 204, page 367.

In passing, it is interesting to note that the California Supreme Court has held the preliminary proof of the subscribing witnesses under (1) supra, is for the court, and not for the jury, unless the court directs otherwise. In re Latour's Estate, 140 Cal. 414, 73 P. 1070, 74 P. 411.

However, this is a petition to revoke probate already had under Sec. 38-216, Arizona Code Annotated 1939 et seq., and we think the better rule is that the preliminary prima facie showing having already been made it need not be repeated. It has sufficient force to fix the burden of proof on the contestant as to all matters purportedly adjudicated. As the Montana court stated In re Silver's Estate, 98 Mont. 141, 38 P.2d 277, 280, "the contest (after probate) is not tried upon issues tendered by the petition for probate and joined by the plea of contestant; it is tried upon issues tendered by the contestant and joined by answer of the proponents. . . ." For other cases and text statements supporting our view that there is no merit to this assignment see: Jones v. Denton, 192 Okl. 234, 135 P.2d 53; In re Stone's Estate (Cal. App.), 133 P.2d 483; 68 C. J. 995, Sec. 760.

Apparently Oregon is the only one of the Western States that follows the archaic procedure of granting a trial de novo. There, under circumstances such as these, the original establishment of the will is held for naught and it must be re-probated. In re Johnson's Estate, 100 Or. 142, 196 P. 385, 1115.

Furthermore the grounds of contest here alleged did not attack "the sufficiency of the proof" to establish the will in the first instance, which is one of the statutory grounds, (Sec 38-216, Arizona Code Annotated 1939), and for that reason alone this contention should be rejected as not within the...