APPEAL from an order of the Superior Court of the County of Greenlee. E. W. McFarland, Judge. Order set aside and cause remanded with instructions.
Messrs. Knapp, Boyle & Thompson and Mr. Arthur Henderson, Mr. H. Earl Rogge, for Appellant.
Mr. Jack Choisser, for Appellees.
[54 Ariz. 219] LOCKWOOD, J.
On May 29, 1937, the superior court of Greenlee county entered an order admitting
to probate a certain instrument hereinafter set forth as the last will and testament of Frances Wilkins, deceased, and appointing John C. Coleman, hereinafter called appellant, as the executor thereof. Thereafter a petition for revocation of the probate of the will was filed and afterwards amended. In the amended petition it was alleged that Frances Lee, Sadie Carlson, Quentin Schmitt, Edward Schmitt, William Schmitt, Albert Schmitt and Marna Magnuson, hereinafter called appellees, were the next of kin and heirs at law of Frances Wilkins; that the instrument above referred to had been admitted to probate as her last will and testament, and urging a number of reasons why the probate should be revoked, among them being that the form of the will was improper according to law. A demurrer to the petition to revoke and a motion to strike certain allegations therefrom were argued, and submitted to the court, and an order was finally made reciting:
[54 Ariz. 220] "That the form of the purported will of Frances Wilkins, deceased, heretofore admitted to probate, is improper and defective according to law, in that nowhere in said instrument does the name of the testatrix appear; that the contest of said purported will and the prayer of the petitioners should be sustained."
and revoking the order admitting the will to probate and the testamentary letters theretofore issued to the appellant. Thereafter this appeal was taken.
There is but one question for our consideration on the appeal, and that is whether the purported will was in proper form according to law. It reads as follows:
"March 30, 1937
"To Whom It May Concern:
"Being of rational mind & believing that my illness may be my last I hereby offer this as my last will;
"That John C. Coleman, of Morenci, Arizona, be the Administrator of my estate in its entirity, without bond;
"That Mrs. Frances Lee, Bucoda, Washington, my niece, be left sum of $10.00; Sadie Schmidt, another niece the sum of $1.00; Quentin Schmidt, my nephew, $5.00; Albert Schmidt another nephew $5.00; William Schmidt, another nephew $5.00 and each other nephew or niece $1.00 each.
"And all my other property is to be left to my personal friend, who has been so kind to me during the past seven or eight years, John C. Coleman.
"Signed by my mark this 30th day of March, 1937; in presence of Marcia Daniels; Eleanore F. ...