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In re Estate of Biehn

Supreme Court of Arizona

February 13, 1933

In the Matter of the Estate of JENNY ADAMSON BIEHN, Deceased.
v.
IRENE BIEHN COLLIER, as Administratrix of the Estate of JENNY ADAMSON BIEHN, Deceased, and IRENE BIEHN COLLIER, Appellees CHARLES H. COOK BIBLE SCHOOL and TUCSON INDIAN TRAINING SCHOOL, Appellants,

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Messrs. Clark & Clark, for Appellants.

Mr. Robert H. Williams and Mr. Samuel White, for Appellees.

OPINION

Page 1113

[41 Ariz. 404] ROSS, C. J.

This is an appeal from an order or judgment of the superior court of Maricopa county revoking and annulling the probate of the will of Jenny Adamson Biehn and the letters of administration with the will annexed theretofore issued to Irene Biehn Collier.

The deceased was a resident of Maricopa county, and on May 1, 1930, died, leaving an estate of real and personal property in said county valued at approximately $20,000. On May 22, 1930, Irene Biehn Coller, representing herself as the daughter of the deceased and the only heir at law, filed her petition in said court asking for letters of administration and at the same time presented to the court an instrument bearing date October 16, 1929, which she alleged she believed "to be the last will and testament of said deceased . . . holographic in character and entirely in the handwriting of said testatrix." Thereafter, on June 11, 1930, the date noticed for a hearing of such petition, the court heard testimony in proof of the will, and certified as follows:

"That said Jenny Adamson Biehn died on the 1st day of May, 1930, in the County of Maricopa, State of Arizona; that at the time of her death she was a [41 Ariz. 405] resident of the said county and state. That the said annexed will was wholly written, dated and signed in the County of Maricopa, State of Arizona, by the said testatrix in her own handwriting, and by her own hand, and that the same was duly executed by the said testatrix on or about 16th day of October, 1929, at which time it bears date. That said decedent at the time of executing said will, as aforesaid, was of the age of twenty-one years and upwards, was of sound and disposing mind, and not under duress, menace, fraud or undue influence, nor in any respect incompetent to devise and bequeath her estate."

Thereafter letters of administration with the will annexed were duly issued to said Irene Biehn Collier, who thereupon took charge of the estate.

On April 30, 1931, she filed a contest of said will, on the ground that it was not written, signed, and dated entirely by the deceased; that it was not proved according to law; that it was not intended to be a will, and that its execution was obtained by undue influence and fraud. Thereafter, on June 2, 1931, she filed an amended petition making a part thereof an agreement of adoption, dated May , 1899, between the Christian Home, a corporation, of Council Bluffs, Iowa, and George W. Biehn and Mrs. George W. Biehn (Jenny Adamson Biehn), his wife, the material part of which reads:

"That the Christian Home, the said party of the first part, by virtue of the authority vested in it by the laws of the State of Iowa, as a Home for the Friendless, incorporated under the laws of Iowa, as aforesaid, does hereby give, consent and surrender to the said Geo. W. Biehn and Mrs. George W. Biehn, his wife, parties of the second part, Mabel Irene Neese, born Feb. 5-1897, for the purpose of adoption; . . . And the said Geo. W. Biehn, and Mrs. Geo. W. Biehn, his wife, parties of the second part, do hereby adopt said child on conditions and limitations above set forth, to all of which they heartily agree. The names of the child henceforth shall be Irene Biehn, [41 Ariz. 406] and the said child shall have all the rights, privileges and responsibilities, which would pertain to said child were they (she) born unto the said parties of the second part in lawful wedlock. . . ."

It is alleged that under said agreement the contestant was received into the home of said George W. Biehn and Jenny Adamson Biehn and reared as their adopted daughter; that she was taught to call them father and mother and that they treated her as their natural daughter; that when she was capable of understanding she was informed by them that she was their adopted daughter, and that thereafter she was represented by them to their friends and acquaintances to be their adopted daughter; that she fully performed on her part the contract of adoption until the death of her said foster parents, by bestowing upon them love and affection and rendering to them obedience and services such as is usual and becoming a natural daughter; that on September 1, 1916, at the age of 19 1/2 years, she married Stanford F. Collier, but that the relation of parents and daughter was not interrupted, but continued until her parents died.

It is also alleged that said Jenny Adamson Biehn, deceased, left no heirs of her body, no adopted child other than contestant, and no surviving husband, father, mother, brothers or sisters, or their issues, at her demise, and no next of kin residing within the state of Arizona except the contestant.

She prayed for the specific performance of the agreement of adoption, and that the legatees and devisees in the will, to wit, Irene Biehn Collier and her children, Stanford F. Collier, Jr., 12 years old, Sara Jane Collier, 9 years old, and William Thayer Collier, 2 years old, Cook Bible School of Phoenix, and the Tucson Indian Training School of Escuela, ...


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