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In re Estate of Brashear

Supreme Court of Arizona

December 11, 1939

In the Matter of the Estate of EUGENE BRASHEAR, Deceased.
v.
FANNIE GLASCOCK and CHARLES B. WARD, Administrator, Appellees FRANK DONER and ANNA MAE McFARLAND, Appellants,

APPEAL from an order of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Order affirmed.

Messrs. Cox & Moore and Mr. B. L. Hibbert, for Appellant Frank Doner.

Mr. Albert R. Smith, for Appellant Anna Mae McFarland.

Mr. Robert DeWolf and Mr. Floyd M. Stahl, for Appellees.

OPINION

[54 Ariz. 431] LOCKWOOD, J.

Frank Doner and Anna Mae McFarland, hereinafter called petitioners, filed their petition for the probate of the will of Eugene Brashear, hereinafter called deceased, in the superior court of Maricopa county. Fannie Glascock, hereinafter called contestant, filed grounds of opposition to the probate of the will, setting up four objections thereto which, in substance, amounted to an allegation that the will was not executed in the manner required by law. The matter came on for trial before the court sitting without a jury, and oral and documentary evidence [54 Ariz. 432] was introduced by both parties. Thereafter the court sustained the objections to the admission of the will to probate, and Charles B. Ward was appointed administrator of the estate of the deceased. No findings of fact were requested nor made. We must, therefore, assume that the court found every fact necessary to support its judgment. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587. And if there is any substantial evidence which would support such presumed findings, we must sustain them. Warren v. Mosher, 31 Ariz. 33, 250 Pac, 354, 49 A.L.R. 1311; Aldous v. Intermountain B. & L. Assn., 36 Ariz. 225, 284 P. 353.

The real question before us is whether there is any reasonable evidence to sustain the conclusion which the trial court necessarily must have reached that the will offered by petitioners for probate was not executed as required by section 3637, Revised Code of 1928, which reads as follows:

"Form and execution; holographic. Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator, or by some other person by his direction and in his presence, and shall, if not wholly written by himself, be attested by two or more credible witnesses, above the age of fourteen years, subscribing their names thereto in the presence of the testator. When it is wholly

Page 748

written by the testator, the attestation by subscribing witnesses is not necessary."

We think the evidence would reasonably sustain the conclusion that the actual facts surrounding the execution of the will were as follows: At the time of the execution of the will the deceased was eighty-five years of age, but of sound mind. At his request, George W. Vaughn, who for many years had been a friend of deceased, prepared the will in question which left substantially all his property to his niece, Anna Mae McFarland, [54 Ariz. 433] one of the petitioners herein. The terms of the will were given to Vaughn by the deceased and Frank Doner, another friend of the latter. Thereafter the will was signed by the deceased and three witnesses, Henry Hendricksen, Mrs. Myrtle Miles and her daughter, Gladys Miles. So far the evidence is undisputed, but a sharp conflict appears over the time and manner in which the will was signed by the deceased and the witnesses.

It is agreed by both petitioners and contestant that when Gladys Miles signed the will it was not in the presence of the testator, and that she cannot be considered as a witness within the meaning of section 3637, supra. Myrtle Miles testified she was called over to the home of deceased, which was across the street from her residence, and found there deceased, Vaughn and Doner. She continued her testimony as follows:

"Q. Now, when you got there I believe you said Mr. Brashear told you this was his will. A. Yes, sir.

"Q. Then did you sign it? A. Yes; Mr. Vaughn explained where I should sign it. They had a little table out there and I signed it and passed the time of day with Mr. ...


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