Schade's Estate, In re

• Decision Date: 13 April 1960
• Docket Number: No. 6554,6554
• Citation: 87 Ariz. 341,351 P.2d 173
• Parties: In the Matter of the ESTATE of Elsie SCHADE, also known as Elsa Schade, Deceased.
• Court: Arizona Supreme Court

Page 173

351 P.2d 173

87 Ariz. 341

In the Matter of the ESTATE of Elsie SCHADE, also known as Elsa Schade, Deceased.

No. 6554.

Supreme Court of Arizona.

April 13, 1960.

Garland, Sanders & Martin, Las Cruces, N.M., for appellants.

Anderson and Smith, Safford, for appellee.

STRUCKMEYER, Chief Justice.

In July of 1954, Herbert Schade, appellee, hereinafter called proponent, petitioned the Superior Court of Greenlee County, Arizona, for admission to probate of a purported lost will of his mother, Elsie Schade, also known as Elsa Schade. The petition was opposed by appellants, Karl W. Schade, a brother, and three married sisters, Margaret Broadwell, Louise Perry, and Charlotte Newell, all natural children of Elsie Schade, hereinafter called contestants. The will was admitted to probate pursuant to the following facts:

In December of 1929, one Eugene Schwab, a real estate agent residing in Clifton, Arizona, at the instigation of Elsie Schade, drafted this instrument:

'Last Will and Testament of Elsie Schade.

'I, Elsie Schade, wife of Karl M. Schade, residing at Clifton, Greenlee County, State of Arizona, declare this to be my last will, hereby rovoking all wills and testamentary papers heretofore made by me.

'I devise and bequeath all the estate and effects whatsoever and wheresoever, both real and personal, to which I may be entitled, or which I may have power to dispose of at my decease, unto my dear husband, Karl M. Schade, residing with me at Clifton, Greenlee County, Arizona, absolutely; and I appoint him sole executor of this my last will, and guardian of our infant children.

'I desire and direct that he be exempt from giving any surety or sureties on his official bond as executor.

'In Witness whereof I have hereunto set my my [sic] hand this ___ day of Dec., 1929.

'Testatrix

'Signed by the said Testatrix, Elsie Schade, as her last will, in the presence of us, at her request, and in her presence, and in the presence of each other, we have hereunto subscribed our names as witnesses.

'Witness

'Witness'

The instrument is an unsigned copy from the files of Eugene Schwab. The original has never been produced.

Elsie Schade died on November 20, 1943. At that time, her husband, Karl M. Schade, was still alive. He, however, passed away on March 13, 1946, without having attempted to probate his wife's estate. Contestants, in their statement in opposition to probate of the will, raised four issues:

1. That the purported will was not duly executed by Elsie Schade.

2. That it was not properly attested by subscribing witnesses.

3. That the copy was not a true and correct copy of the original will.

4. That if the will was properly executed and attested and established as a true and correct copy of the original, still the original was not in existence at the time of Elsie Schade's death.

The issues so raised are in substance the issues presented to this court on appeal, there being fundamentally here questioned the sufficiency of the evidence to sustain the judgment of the court below.

On issues 1, 2, and 3, the evidence is without conflict and plainly justifies their withdrawal by the trial court from consideration of the jury. In this jurisdiction it is procedurally proper for a court to instruct a verdict in favor of a party where to have ruled otherwise would have permitted the jury to draw speculative inferences not based on probative facts. Casey v. Beaudry Motor Company, 83 Ariz. 6, 315 P.2d 662. For the same reason, issues presented by pleadings should not be submitted if unsupported by evidence. Nor do we think that the rule is modified by the statute, A.R.S. § 14-353, requiring that issues of fact involving validity of the execution and attestation of a will by decedent or subscribing witnesses be submitted to a jury. Where the issue is speculative, no question is presented for the jury's determination.

The evidence in favor of the validity of the execution and attestation and of the terms of the will is clear and unambiguous. Eugene Schwab, draftsman of the instrument and a subscribing witness, testified that he was well acquainted with Elsie Schade for much of her life, having attended both her wedding and her funeral; that in 1929 he drew a will for her which read and signed in his presence and in the presence of one Karl Claus, now deceased; that she was then of sound mind and acting of her own free will; that the will was executed in the presence of the subscribing witnesses and by the subscribing witnesses in the presence of each other and in the presence of Elsie Schade; that she then left with the original will which he never saw again. He further testified that the carbon copy introduced in court was made at the same typing operation as the original, and that it is an exact copy, incorporating the provisions of the original will. A carbon copy of a will, when supported by oral testimony that it is an exact copy of the original, is admissible as secondary evidence to establish the making and the contents of a will that has been lost or destroyed. In re Auritt's Estate, 175 Wash. 303, 27 P.2d 713.

The disinterested witness, Ernest Schade, a cousin, testified positively and unequivocally:

'Q. I'll hand you Contestant's Exhibit number '1' for identification, and ask you if that appears to be a copy of the will which Mr. Karl M. Schade displayed to you?

* * *

* * *

'A. This is the main body, this is an exact copy.

'Q. Now, Mr. Shade [sic], fixing the time when you saw this will, was it before or after the death of Elsa M. Schade? A. I would say a month after Mrs. Schade died.

'Q. * * * I wonder if you would indicate * * * you have stated that you saw Mrs. Schade's signature on that will? A. Yes.

'Q. Would you indicate the position where the signature was on that copy, Mr. Shade [sic]? A. On the first line.

* * *

* * *

'Q. Now, were there any other signatures on the will? A. A fellow I knew very well by the name of Karl Claus was on the second line as a witness.

'Q. Any other signatures on there?

A. And Eugene Schwab * * *.'

Similarly, the disinterested witness, Meta Schade, wife of Ernest Schade, testified:

'Q. Mrs. Shade [sic], when did you see this will? A. A month after Mrs. Schade died.

* * *

* * *

'Q. What signature did you see? A. Elsa Schade, Karl Claus, and Eugene Schwab.

'Q. I'll hand you Contestant's Exhibit number '1' for identification, and ask you if that appears to be a copy of the will which you saw.

* * *

* * *

'A. This is the same Will I saw that Karl Schade showed me."

Likewise, the disinterested witness, Carl Crawford, testified:

'Q. At any time when you were home, and on one of those visits, did Karl M. Schade show you a will? A. Yes.

* * *

* * *

'Q. And, was there signatures on that Will? A. There were.

'Q. And whose were on the Will? A. Elsie Schade's.

'Q. And, do you remember the witnesses? A. Schwab and Claus.'

While the witness did not read the will and hence could not say that the copy was a true copy, the testimony establishes the existence of a signed, subscribed will after the death of Elsie Schade.

Opposed to these disinterested witnesses' testimony is that of the contestants Charlotte Newell and Margaret Broadwell, and of Margaret Schade, wife of contestant Karl W. Schade. Margaret Schade testified:

'Q. When was the first time that you ever heard of Mrs. Schade having a will? Having made a will? A. Well, at one time when Mrs. Schade and I were looking for some papers, I saw what was an unsigned, that looked like a piece of paper that was unsigned, that could have been a form will.

'Q. Did you read it at that time? A. I glanced at it.

'Q. You say it was unsigned? A. What I saw was.'

The witness could not identify the unsigned paper which she 'glanced at' as the will originally prepared by Eugene Schwab. Hence, the testimony does not contradict the positive statements found in proponent's case.

Charlotte Newell testified:

'Q. Now, when you saw this document, that was after your mother's death? A. Which one are you referring to?

'Q. When you were snooping? A. Yes, as far as I remember that was after my mother's death.'

* * *

* * * 'Q. Was that signed or unsigned? A. As far as I remember it was unsigned, but I can't say it was or wasn't.'

Here again the testimony if far too equivocal to permit more than a speculative conclusion.

The testimony of Margaret Broadwell taken at a former hearing was introduced:

'Q. The question was asked, 'Well, now, you knew your mother had a will when she died, leaving this property to your father. You knew that, didn't you?' The Answer: 'I am in the same position as Charlotte, just being there at the house and looking around and seeing something, but I don't remember what it was.'

"Q. And you saw your mother's signature on it? A. I don't remember."

We are in accord with the trial court's opinion that there was no reasonable testimony which would permit the jury to intelligently return a verdict contrary to proponent on the first two issues.

Contestants further argue that the statute A.R.S. § 14-321, subd. B providing that a lost will shall not be established unless its provisions are clearly and distinctly proved by at least two credible witnesses was not complied with. It is sufficient to say that the testimony of three of proponent's witnesses manifestly does satisfy the statute.

At the conclusion of all the evidence, one special interrogatory was submitted to the jury:

'Was there an original Will signed by Elsa Schade, or Elsie Schade * * * in existence at the time of the death of Elsa Schade?'

To this interrogatory the jury returned an answer in the negative. However, on motion of proponent and on reconsideration of the evidence, the court below entered judgment n. o. v., admitting the will to probate, it being the court's opinion that the existence of the will was established by competent, positive testimony, substantially uncontradicted.

As against the testimony...