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In re Harris' Estate

Supreme Court of Arizona

March 2, 1931

In the Matter of the Estate of MARY C. HARRIS, Deceased.
v.
J. I. NEEDHAM, G. W. NEEDHAM, R. Y. NEEDHAM, WALTER NEEDHAM, OSCAR NEEDHAM, MATTIE MALONE, CLARA HALBROOK, MRS. ELIZA HAMILTON, MISS RUBY HAMILTON, MRS. LILLIE CHATHAM, MRS. E. C. WILSON, MRS. LUTHER EARL, MRS. PAULINE APPERSON, MRS. GEORGE D. MASCHO, MR. C. G. NEEDHAM, MR. J. I. NEEDHAM, MR. A. J. NEEDHAM, MRS. BEN RICHARDS, MRS. ALONZO LEW-ALLEN: All Heirs of DAVID NEEDHAM, Deceased; All Heirs of ALFRED NEEDHAM, Deceased; All Heirs of JOHN NEEDHAM, Deceased; All Heirs of MARY C. HARRIS, Deceased, Except Appellants; and Z. O. BROWN, Administrator, Appellees BELLE WINNINGHAM, KALETA NOBLE and MURL NOBLE, a Minor, by KALETA NOBLE, Next Friend, Appellants,

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment reversed and cause remanded, with instructions.

Messrs. Favour & Baker, for Appellants.

Messrs. Cornick & Crable, for Appellees.

OPINION

Page 268

[38 Ariz. 2] LOCKWOOD, J.

This is an appeal from an order denying the admission to probate of an alleged holographic will. The facts in the case are not in dispute, and may be briefly stated as follows:

Mary C. Harris, hereinafter called decedent, died in Prescott, Arizona, November 10, 1929. Her husband, John Harris, predeceased her about a week. Mrs. Harris left surviving her as heirs a number [38 Ariz. 3] of brothers and sisters of the half and whole blood, and several nephews and nieces, the children of two deceased brothers. A petition for probate of the document in question was filed by Belle Winningham, a sister of decedent, and the petition was duly set for hearing. Before the date of the hearing there were filed certain objections by heirs to the probate of the will. These objections state that they are made on behalf of all the heirs except Belle Winningham, but Kaleta Noble, who is one of the heirs, and Murl Noble, her daughter, hereinafter called appellants, have since denied that they knew anything about the objections, and alleged that they gave no authority for the filing thereof so far as they were concerned.

The testimony taken at the hearing establishes beyond a doubt that the instrument in question was in the handwriting of the decedent, but the court made an order denying admission of the instrument to probate as a will on the ground, as stated in the order appointing an administrator, "because the intent of said decedent as expressed in such will is deemed so vague and indefinite that the terms thereof are impossible of performance."

The first question we have to consider is whether or not appellants are in a position to maintain this appeal. It is urged by appellee that, since they objected to the probate of the will, and since the objection was sustained, they cannot now appeal from a judgment in their favor. The sufficient answer thereto is that appellants deny they had ever given authority to anyone to file objections on their behalf, and repudiate such objections, and there is nothing in the record which shows that such authority ever did exist.

The next objection is that Murl Noble, who is admitted to be a minor child, may not appear through a next friend, as she does in this appeal, but under [38 Ariz. 4] the Arizona statutes should appear through either a general guardian or guardian ad litem. This is at most a mere irregularity, not going to the jurisdiction of the court, and in section 3734, Revised Code of 1928, it is provided:

"Whenever it shall appear to any court in any action or proceeding before such court, that the interests of a minor are involved, and that said minor has not appeared therein by a guardian, the court shall forthwith appoint a suitable person to act as guardian ad litem for such minor to protect the interests of such minor in such action or proceeding."

Following such statute, this court has appointed Kaleta Noble, the mother of the minor child, guardian ad litem for the purposes of these proceedings. We hold, therefore, that appellants have the right to bring this matter before us for review.

The next and vital point in the case is whether or not the instrument in question is a legal will. That instrument reads as follows:

"John when I Die I want Belle to Have all my clothes if I Die first and some of my Bed clothes you Keep Enough for one Bed to Keep you Warm and I Want you to give Belle money to live on and my Fancy Work Pillow cases and Sheets theres no use you Keeping them all for some one Will tak them and you wont Know where they ever Went now you give Belle these things for they wont Do you any good I Know theres some folks that Would ...


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