In the Matter of the Estate of JAMES MORRISON, Also Known as SCOTTY MORRISON, Deceased.
ELIZABETH JACK, Appellee TONY KOMADINO, Appellant,
APPEAL from a judgment of the Superior Court of of County of Mohave. J. W. Faulkner, Judge. Judgment reversed and cause remanded for a new trial.
Mr. Carl D. Hammond, for Appellant.
Mr. E. Elmo Bollinger and Mr. Charles P. Elmer, for Appellee.
[55 Ariz. 505] ROSS, C.J.
Tony Komadino appeals from a judgment and order refusing to admit to probate the will of James (Scotty) Morrison, and to issue to him letters testamentary. Komadino's petition was opposed by Elizabeth Jack, the mother and sole heir at law of the decedent, upon the grounds:
(1) That the language used in said will is insufficient to constitute a testamentary disposition of property.
(2) That said paper was never executed as or for a will and was never intended by said deceased to be his last will.
(3) That said instrument was not entirely written, dated and signed by the hand of the testator himself, in this, that no part thereof was written by the hand of the said James Morrison, deceased, nor is the signature [55 Ariz. 506] thereon "James Morrison" the signature of the said testator.
(4) That at the time the said James Morrison, deceased, made and subscribed said alleged will he was not of sound mind or memory, or in any respect capable of making a will.
(5) That the petitioner and his wife, Kattie Komadino, devisees and legatees under the will, procured such will through undue influence and by furnishing the testator with food, wines and liquors; by promising him that they would support and care for his mother the rest of her life; by representing to him that the estate if willed to them would escape inheritance and other taxes under the laws of Great Britain, of which Empire Elizabeth Jack was a citizen. That under such promises the decedent wrote the will while he was in petitioner's home and while under the influence of intoxicating liquors to such an extent that he believed the representations.
The grounds of opposition stated above were put in issue by general and special denials. The case was tried before the court with a jury. There were submitted to the jury four interrogatories as follows:
"1. Was said purported will wholly written by the testator, James Morrison, and signed by him in his own hand?
"2. Was said purported will executed by the testator, James Morrison, as or for a will and intended ...