Pohndorf's Estate, In re

• Decision Date: 18 November 1969
• Docket Number: CA-CIV,No. 1,1
• Parties: In the Matter of the ESTATE of Bessie POHNDORF, Deceased. Edgar M. POHNDORF, Appellant, v. The VALLEY NATIONAL BANK OF ARIZONA, As Executor of the Estate of Bessie Pohndorf, Deceased, Appellee. 924.
• Court: Arizona Court of Appeals

Page 508

461 P.2d 508

11 Ariz.App. 29

In the Matter of the ESTATE of Bessie POHNDORF, Deceased.

Edgar M. POHNDORF, Appellant, v. The VALLEY NATIONAL BANK OF ARIZONA, As Executor of the Estate of Bessie Pohndorf, Deceased, Appellee.

No. 1 CA-CIV 924.

Court of Appeals of Arizona, Division 1.

Nov. 18, 1969.

W. Francis Wilson, Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, by Ozell M. Trask, Phoenix, for appellee.

HOWARD, Judge.

This is a contest of a will after probate action, pursuant to A.R.S. § 14--371 et seq. The trial judge refused to submit the case to the jury after the close of the contestant's case and granted the contestee's motion for a directed verdict. The contestant, Edgar M. Pohndorf, the adopted son of deceased, Bessie Pohndorf, appeals from an order granting the motion for a directed verdict. The appellant attacked the will in the lower court alleging undue influence, incapacity to make a will and improper execution of the will. Appellant presents the following questions for review:

'A. Does the testimony concerning the Execution of the will admitted to probate present a question that should have been submitted?

B. Are all of the wills taken together, all of the other evidence and all of the inferences that may be drawn therefrom capable of raising a question as to the validity of the will sufficient to require a trial court to have submitted this matter to the jury?

C. Do the undisputed facts surrounding the $10,000.00 check to testator's 'niece' raise an issue as to whether testator had sufficient mind and memory to intelligently understand the nature of the business in which she was engaged to comprehend generally the nature and extent of property which constituted her estate and which she intends to dispose of and to recollect the object of her bounty?'

Viewing the evidence in the light most favorable to the appellant we find that the deceased, Bessie Pohndorf, died in Phoenix, Arizona, on September 6, 1966, at the age of 82 years. She was survived by her adopted son, Edgar Pohndorf, who is the contestant-appellant in this case. At the time of her death, Bessie Pohndorf, was of the Jewish faith and had always been of that faith since birth. After the death of her husband, difficulties arose between the deceased and appellant. She told him that she was not going to lease him anything in her will because she had already given him enough during her lifetime. The testatrix and her husband had in fact, made gifts of substantial amounts of money to the appellant during their lifetimes. Prior to executing the will in question the testatrix had executed at least three other wills. She had also made statements to various people that she did not like appellant because he did not like Jews. Approximately eighteen months prior to executing the will which is at issue the testatrix gave Pearl Schultz, a grandniece, and her husband the sum of $10,000.00. The mother of Pearl Schultz' father and the testatrix were sisters. When Pearl Schultz was young, the testatrix had wanted Pearl to come and live with her. Pearl's mother was afraid that the deceased might try to adopt her and refused to allow Pearl to go with the testatrix. The testatrix gave the $10,000.00 to Pearl as Pearl's 'rightful share' explaining that she was going to divulge something to her that she had never divulged to anyone, namely, that there had been a sister of the testatrix named Linda who had migrated with the testatrix to the United States; that Linda had married a man who had dealt with furs or holdings in Alaska and that Linda had passed away; that Linda had no children and when she died the testatrix took care of the burial and had the body sent to Seattle; that she took care of all of Linda's estate and that actually Pearl's father was a nephew to Linda and was rightfully entitled to an inheritance from this estate which he never received.

The attesting witnesses stated that the testatrix could write her name and read figures but there is some question as to whether or not she could actually read English. Prior to execution and attestation by the witnesses, the will was read aloud to her by her attorney. The attorney explained to her the meaning of various provisions of the will and the will was signed by her in her own hand. At the time she signed the will she did not appear to be in fear of anyone or acting under the influence of anybody. She seemed to be well-oriented with respect to her surroundings and what she...