Morris' Estate, In re

• Decision Date: 28 September 1971
• Docket Number: CA-CIV,No. 1,1
• Citation: 15 Ariz.App. 378,488 P.2d 1015
• Parties: , 49 A.L.R.3d 1214 In the Matter of the ESTATE of Ruth B. MORRIS, Deceased. Robert H. ALLEN, Guardian of the Estate of Beth B. Eakin, an incompetent, Appellant, v. Virginia ROYCE et al., Appellees. 1597.
• Court: Arizona Court of Appeals

Page 1015

488 P.2d 1015

15 Ariz.App. 378, 49 A.L.R.3d 1214

In the Matter of the ESTATE of Ruth B. MORRIS, Deceased.

Robert H. ALLEN, Guardian of the Estate of Beth B. Eakin, an incompetent, Appellant, v. Virginia ROYCE et al., Appellees.

No. 1 CA-CIV 1597.

Court of Appeals of Arizona, Division 1.

Sept. 28, 1971.

Allen, McClennen & Fels by John V. Fels, Phoenix, for appellant.

Ryley, Carlock & Ralston by John C. Ellinwood, and James D. O'Neil, Phoenix, for appellees Royce, Ewing, Widle and Speer.

Hughes, Hughes & Conlan, by John C. Hughes, Phoenix, for appellee John C. Hughes.

Gary K. Nelson, Atty. Gen., by Ralph E. Willey, Asst. Atty. Gen., Phoenix, for appellee Arizona Board of Regents.

Kaplan, Wilks & Abrams by Richard B. Wilks, Phoenix, for appellees Walker, Walker and Stokley.

HATHAWAY, Judge.

The decedent's last will and testament, a typed will executed by her and attested by two witnesses, was admitted to probate together with a holographic codicil. The holographic codicil was not witnessed.

The decedent provided in her will that her entire estate, with the exception of a scholarship trust, was to go to her sister, Beth Eakin, the appellant. She further provided that should her sister predecease her, then the portion to which her sister would have been entitled was to go to appellees, Grace Walker, Virginia Royce, Alice Ewing, Nora Widle and Ruby Speer. The will was modified by the following pertinent paragraph from the holographic codicil:

'To my sister, Beth Burns Eakin, I leave any property I own and one-third of cash. The rest of cash, after last expenses, to be divided equally among those friends and cousins mentioned in will.'

This appeal is from the court's decree determining heirship and upholding the effectiveness of the holographic codicil. Three questions are presented for review. First, does the unwitnessed holographic codicil revoke the legacy to Beth Eakin contained in the witnessed will. If so, then we must determine whether any portion of the expenses is chargeable against Beth Eakin's one-third of the cash, and finally, whether certain items were properly classified as 'cash.'

In considering the major issue presented, whether an unwitnessed holographic codicil can revoke a legacy provided in a witnessed will, we must bear in mind A.R.S. § 14--126, relied upon by appellant and which provides:

'A will or any clause or devise therein may be revoked only by:

1. A subsequent will, codicil, or declaration in writing Executed with the same formalities as the will revoked.' (Emphasis added)

It is appellant's contention that since the codicil in question was not witnessed, it was not 'executed with the same formalities as the will revoked.' No Arizona cases have dealt with the problem. The best authority appellant has been able to present in support of her position appears to be controlled by a specific statute providing that no holographic will without subscribing witnesses '* * * shall be pleaded in bar of a will subscribed in due form as prescribed will this act.' Ark.Stat.Ann. § 60--104 (1947); Parker v. Hill, 85 Ark. 363, 108 S.W. 208 (1908); McPherson v. McKay, 207 Ark. 546, 181 S.W.2d 685 (1944).

Appellees have examined the predecessor statutes of A.R.S. § 14--126 to explore the meaning of the statute and the legislative intent as it relates to the problem. The statute is traced from the Revised Statutes of Arizona, Title XIV, § 3236 (sec. 5) (1887), taken from Revised Statutes of Texas, Title XCIX, Art. 4861 (1879). Identical language was carried into the Arizona Revised Statutes in 1901 and 1913, the only change being an additional clause in § 4216 (sec. 5) of the 1901 Code providing for revocation by subsequent remarriage.

The Revised Code of Arizona of 1928 adheres to the following language in the equivalent sections of Chapter 83:

' § 3637. Form and execution; holographic. Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator, or by some other person in his direction and in his presence, and shall, If not wholly written by himself, be attested by two or more credible witnesses, above the age of fourteen years, subscribing their names thereto in the presence of the testator. When it is wholly written by the testator, the attestation by subscribing witnesses is not necessary.

§ 3638. Revocation; marriage. No will made in conformity with the preceding section, nor any clause or devise therein, shall be revoked except by a subsequent will, codicil or declaration in writing Executed with like formalities, or by the testator destroying, cancelling or obliterating the same or causing it to be done in his presence. * * *' (Emphasis added)

The above two sections were picked up in identical language in Arizona Code Annotated 1939 §§ 41--102 and 41--103. After the 1939 Code was revised, the foregoing provisions appeared in the following form in Ariz.Rev.Stat.Ann. (1956):

' § 14--121. Form and execution of wills

Except as otherwise provided by law, every will shall be in writing and signed by the testator, or by some other person by his direction and in his presence, and shall, if not wholly written by the testator, be attested by two or more credible witnesses who are fourteen or more years old, subscribing their names thereto in the presence of the testator.

§ 14--122. Effect of legacy or devise when legatee or devisee is subscribing witness * * *

§ 14--123. Holographic will

A holographic will is one entirely written and signed by the hand of the testator himself. Attestation by subscribing witnesses is not necessary in the case of a holographic will.

* * *

* * *

§ 14--126. Revocation of will

A will or any clause or devise therein may be revoked only by:

1. A subsequent will, codicil or declaration in writing executed with the same formalities as the will revoked.

2. Destruction, cancellation or obliteration of the will by the testator or caused by him to be done in his presence.'

In the statutes preceding Ariz.Rev.Stats.Ann. (1956) holographic wills are accorded equal weight, reliability and formality as a witnessed will. Any apparent modification of their equality caused by the Code revisors would be ineffective. Ariz.Rev.Stat.Ann. § 41--1304.02 provides:

'The director of the Arizona legislative council * * * shall not alter the sense, meaning or effect of any act of the legislature, but may renumber sections and parts of sections; rearrange sections, articles, chapter and titles; change reference numbers to agree with renumbered sections, articles, chapters or titles; substitute the proper section, article, chapter or title for the terms 'the preceding section', 'this article', 'this act' and like terms;. * * * The director shall not undertake to make any change of existing laws, it being the intention of this section that the director shall in no manner assume to exercise legislative power.' (Emphasis added)

See Peterson v. Central Arizona Light & Power Co., 56 Ariz. 231, 107 P.2d 205 (1940); City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 164 P.2d 598 (1945); State v. Datsi, 11 Ariz.App. 132, 462 P.2d 825 (1969).

Our statutes were taken from Texas. Counsel indicate that the Texas courts have not dealt with the problem. The following cases, however, if not holding, strongly suggest that the Texas courts have accorded holographic testamentary instruments the same legal efficacy as attested instruments. Further, those courts have apparently construed the language 'like formalities' to mean complying with the due formality and legal requirements necessary to validate the subsequent instrument itself and as not referring to the formalities attending the execution of the prior instrument. See Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244 (1924); Sien v. Beitel, 289 S.W. 1057 (Tex.Civ.App.1926); Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App.1948); Baptist Foundation of Texas v. Buchanan, 291 S.W.2d 464 (Tex.Civ.App.1956); Covington v. McDonald, 307 S.W.2d 335 (Tex.Civ.App.1957); Bell v. Burton, 370 S.W.2d 18 (Tex.Civ.App.1963), modified, 380 S.W.2d 561 (Tex.1964); Huckaby v. Huckaby, 436 S.W.2d 601 (Tex.Civ.App.1968). The Texas cases are in accord with the general rule that holographs and witnessed wills are of equal weight and formality. See In re Smith's Estate, 31 Cal.2d 563, 191 P.2d 413 (1948), where the testatrix effectively revoked a witnessed will by writing across an unexecuted carbon copy that it was revoked and null and void, and by dating and signing the holographic revocation; In re Cazaurang's Estate, 42 Cal.App.2d 796, 110 P.2d 13, (1941), where a holograph was revoked by a witnessed will and then revived and revised effectively by a subsequent holograph. Also see In re Wallace's Estate, 100 Cal.App.2d 237, 223 P.2d 284 (1950); In re Holmes' Estate, 191 Cal.App.2d 285, 12 Cal.Rptr. 629 (1961); In re Sargavak's Estate, 41 Cal.2d 314, 259 P.2d 897 (1953); In re Salmonski's Estate, 38 Cal.2d 199, 238 P.2d 966 (1951); 2 W. Page, Wills § 21.37, at 400 (rev. ed. 1960); 57 Am.Jur. Wills §§ 466, 651 (1948); 50 A.L.R.2d 11, 50 (1958). Cases in jurisdictions other than California dealing with the subject are: Hessmer v. Edenborn, 196 La. 575, 199 So. 647 (1940); In re Paul's Estate, 12 Misc.2d 194, 175 N.Y.S.2d 93 (Surr.1958); Northcross v. Taylor, 29 Tenn.App. 438, 197 S.W.2d 9 (1946); Ward v. Curry's Executor, 297 Ky. 420, 180 S.W.2d 305 (1944).

We are satisfied that under the Arizona statutes a holograph and a witnessed will are of equal formality, and that the holographic codicil here effectively modified the witnessed will.

The trial court held that all bequests were charged with their 'proportionate share of the expenses.' Appellant urges that the wording in the codicil shows an intent that the sister's portion was to come from the gross estate and that this intent is demonstrated through the careful placing of 'after last expenses' in the codicil which we again set forth to...