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In re Estate of Nolan

Supreme Court of Arizona

December 9, 1940

In the Matter of the Estate of THOMAS C. NOLAN, Deceased
v.
GRACE I. HUMPHRIES, also Known as GRACE NOLAN, Individually and as Executrix of the Estate of THOMAS C. NOLAN, Deceased, Appellee HONORA M. NOLAN, Appellant,

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

Mrs. E. G. Monaghan and Mr. Thomas A. Flynn, for Appellant.

Messrs. Fennemore, Craig, Allen & Bledsoe, for Appellee.

OPINION

Page 386

[56 Ariz. 355] LOCKWOOD, J.

This is an appeal from a judgment of the superior court of Maricopa county, denying the petition of Honora M. Nolan to revoke a probate of will and confirming the order previously made admitting the will in question to probate. No transcript of the testimony was filed, the appellant preferring a statement of facts under sections 3866-3869, 3871 and 3873, Revised Code of 1928. Considering the evidence set forth in the statement in the strongest manner in support of the judgment, the material facts necessary for its review are as follows:

On August 5, 1903, Thomas Nolan, hereinafter called decedent, was married to Honora M. Nolan, hereinafter called petitioner, and they lived together as such husband and wife until the middle of June, 1931. About the year 1926 Grace I. Humphries, hereinafter called respondent, became acquainted with decedent and petitioner while she was teaching school in Prescott, Arizona. A strong friendship sprang up between the parties, which developed into a warmer feeling on the part of decedent at some time prior to March 10, 1931. On that date he made a holographic will, which reads as follows:

"March 10th, 1931

"This being my last will and testament I will and bequeath all my real and personal property to my future wife, Grace I. Humphries, now residing in Globe, Arizona; the income from my Nebraska farm to go to my mother during her life.

"Said Grace I. Humphries to be appointed administratrix without bond.

"THOMAS C. NOLAN."

and sent a copy to respondent. A few months previous to this time he had informed her that he was in [56 Ariz. 356] love with her, and was having trouble with his wife, but did not in any manner intimate to her that he intended to leave her his property, nor was the matter discussed between them before the execution of the will. The first time that she saw him, after she received a copy of the will, she objected to the fact that he had mentioned her therein as his future wife, saying he was putting her in a bad light by leaving her his property, to which he replied that he wanted her to have everything he owned, as he had already made a division of community property with his wife. Respondent never at any time promised to marry him if he would make a will in her favor, nor asked him to make such a will, nor discussed the subject at all. It was, so far as the evidence shows, entirely of his own desire and volition that he made the will in the form in which it was made. Decedent and his wife separated some time in the summer of 1931, and in the spring of 1932 he filed an action for divorce in the superior court of Yavapai county, which was dismissed on his motion. On June 2, 1932, a decree of divorce in favor of decedent was entered in the Court of the First Instance of the District of Bravos, State of Chihuahua, Mexico, and on June 4, 1932, decedent and respondent were married at Las Cruces, New Mexico. After this marriage they went to West Point, Nebraska, where they lived until the time of his death, although they made frequent trips to Arizona for the purpose of visiting friends.

It was in evidence that decedent was in good health at the time his will was made, that he was a man of strong character, firm in his decisions, and not easily swayed nor influenced. At that time he was proximately fifty-four years of age, while respondent was about twenty-eight. We shall refer to such other testimony as appears in the record as is necessary from time to time.

[56 Ariz. 357] There is no question that the will was written entirely by decedent, and that with one possible exception it was in ...


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