Vermeersch's Estate, In re

• Decision Date: 15 February 1973
• Docket Number: No. 10745,10745
• Citation: 506 P.2d 256,109 Ariz. 125
• Parties: In the Matter of the ESTATE of Rosalle Eva VERMEERSCH, Deceased. The VALLEY NATIONAL BANK OF ARIZONA, as Special Administrator of the Estate of Jules L. Vermeersch, Appellant, v. Rosalie M. LEWIN, Appellee.
• Court: Arizona Supreme Court

Page 256

506 P.2d 256

109 Ariz. 125

In the Matter of the ESTATE of Rosalle Eva VERMEERSCH, Deceased.

The VALLEY NATIONAL BANK OF ARIZONA, as Special Administrator of the Estate of Jules L. Vermeersch, Appellant, v. Rosalie M. LEWIN, Appellee.

No. 10745.

Supreme Court of Arizona, In Division.

Feb. 15, 1973.

Rehearing Denied March 13, 1973.

R. G. Langmade and Moore, Romley, Robbins & Green, by Elias M. Romley and Hiram A. Cannon, Phoenix, for appellants.

Cunningham, Goodson & Tiffany, Ltd., by John F. Goodson and O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by James H. O'Connor and Harry J. Cavanagh, Phoenix, for appellee.

HAYS, Chief Justice.

This is an appeal from a jury verdict in favor of the contestant of the probate of the will of Rosalie Eva Vermeersch. Her husband, Jules L. Vermeersch, as the executor named in the will, filed the original petition for probate on June 30, 1969. Rosalie Marie Lewin, the adopted daughter of Mr. and Mrs. Vermeersch, contested the validity of the will on the grounds of testamentary incapacity and undue influence. Mr. Vermeersch later declined to act as executor, for medical reasons, and the alternative executor named in the will, The Valley National Bank of Arizona, was appointed as executor. The Proponent (appellant) on appeal is The Valley National Bank of Arizona, as the alternate Executor-Designee and as the Guardian of the Estate of Jules L. Vermeersch, an incompetent. The contestant (appellee) is Rosalie M. Lewin, the adopted daughter.

The questions presented on appeal are substantially as follows:

(1) Was the evidence below sufficient to support the court's finding Mrs. Vermeersch lacked testamentary capacity and was acting under undue influence when she executed her will;

(2) Was it error to admit evidence concerning the will, the testamentary capacity and the susceptibility to undue influence of Mr. Vermeersch;

(3) Was it error to allow the trial court to cross-examine Kathryn Jackson and Jewel Dillehay; and

(4) Was it error to refuse to give proponent's requested instructions.

The facts which were brought out during some five and one-half weeks of trial are somewhat involved and show a unique family situation. Mr. and Mrs. Vermeersch moved to Arizona in 1923 from New Orleans and joined Mr. Vermeersch's parents in Phoenix. That same year they adopted Rosalie who had been born as a result of an affair between Mr. Vermeersch and a family friend in Louisiana. In Phoenix, Mr. Vermeersch began his machinery business which grew into a community estate worth approximately one million dollars. Kathryn Jackson, the secretary, was employed in 1923 and was continuously employed by Mr. Vermeersch until he was adjudged incompetent after the completion of the trial.

Kathryn's role during this time went beyond that of a secretary. She sold repair parts, maintained the inventory and sold equipment. The business was on the south side of East Van Buren Street in Phoenix and the family homes were directly across the street on the north. It was a family business and, although Kathryn lived separately with her sister, Jewel Dillehay, Kathryn was part of the family. Some testimony indicates that Kathryn and Mr. Vermeersch took trips together and slept together. Some testimony indicates that Kathryn was bossy and that Mrs. Vermeersch was jealous of her. Other testimony shows Kathryn as a loyal friend and employee of the entire family. Kathryn kept the books and as time went on assumed more and more duties in running the house. She hired and fired housekeepers and did the shopping for the house, as well as for Mrs. Vermeersch's clothes. In later years, she prepared the family income tax statements.

Mrs. Vermeersch was 12 years older than Mr. Vermeersch and the evidence indicates he loved her in a protective way. She was devoted to him. Mr. Vermeersch's parents lived in a house immediately to the west of Jules and Rosa Vermeersch. When his parents died, Mr. Vermeersch moved into the west house and, though he visited her daily, he never again lived in the east house with his wife.

Although there were a number of family quarrels, Mrs. Vermeersch appears to have accepted Rosalie and loved her as her own daughter. The Vermeersches were an old-country Catholic family and Rosalie was not allowed to dress and date like her high school contemporaries. In 1940 she rebelled and married Alfred Allison against her family's wishes. The marriage was not a happy one, but she stayed married to Mr. Allison until 1954 for the sake of her parents and grandparents. In 1960 Rosalie married Burt Lewin and was divorced from him in 1969. Although Rosalie's relationship with her father was stormy at times, he was extremely found of her, talked about her constantly, and visited her frequently, especially during her marriage to Burt Lewin. Rosalie did not see her mother as frequently, although Mrs. Vermeersch had family dinners with the Lewins on holidays.

In November 1967, Jules Vermeersch was involved in an automobile accident. The hotly-disputed events, crucial to this appeal, date from this point. Mr. Vermeersch was seriously ill after the accident and Rosalie wanted her father to come to her house to recuperate when he was well enough to leave the hospital. Mr. Vermeersch thought his daughter was trying to get his money and was afraid she was going to try to kidnap him. He was discharged at his wife's request on December 17, 1967, and taken, accompanied by several deputy sheriffs, to his own home. Guards were hired so that Rosalie and her attorney could not get into the house. Kathryn, the secretary, was taking care of Mr. and Mrs. Vermeersch and is alleged to have manipulated them into believing that Rosalie was only after their money. Kathryn was in charge and only those people she allowed were permitted to see the Vermeersches.

On December 19, 1967, Rosalie filed a petition to have her father declared incompetent and to have a guardian appointed for his estate. A restraining order was issued to prevent Mr. Vermeersch from having access to his bank accounts and other assets. He was bitter about his daughter's attempt to have him declared incompetent. The matter of Mr. Vermeersch's competency and ability to handle his affairs was tried and he was found competent and capable of taking care of himself and managing his property without assistance. He was found not likely to be deceived or imposed was found not likely to be deceived or imposed upon by artful or designing persons.

On the night of January 9, 1968, when Mr. Vermeersch was again in the hospital, the contestant, her husband, two security guards, a private detective, and the contestant's daughter cut through the fence around the Vermeersch house and tried to get in to see Mrs. Vermeersch. Mrs. Vermeersch Rosalie was trying to kidnap her and told them to go away.

While Mr. Vermeersch was still in the hospital in January, 1968, he called his attorney and told him that his wife wished to change her will. It is her new will, exeuted on January 23, 1968, which is the subject of this lawsuit.

An examination of the events surrounding the actual making of the will is necessary to determine if the evidence below was sufficient to support the court's finding that Mrs. Vermeersch lacked testamentary capacity and was acting under undue influence when she executed her will. Policy favors testacy and it is the duty of the court to carefully examine a verdict finding a will invalid and to set aside such a verdict where it appears the evidence is not clearly sufficient to support it.

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