APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment reversed and case remanded with directions.
Messrs. Cusick & Lyons, for Appellants.
Mr. Arnold T. Smith, for Appellee.
[60 Ariz. 217] ROSS, J.
The question we are to decide is whether the deceased Ethel Rose Welch left a valid will. If she did, her wishes as to the disposition of her property as therein expressed are controlling, otherwise her property will descend according to this state's laws of descent.
Deceased was murdered in her home, located at 823 W. Congress Street, Tucson, Arizona, some time during the night of September 12, 1941. The following morning a police officer, of Tucson, made an examination of her home, which consisted of three rooms. The middle room was used as a kitchen and bath and the back room for sleeping purposes. He stated that in both of these rooms the furniture and things were disarranged and scattered about; that her body was in a clothes closet in her bedroom; that in the front room "things were very orderly and neat and clean." In a desk in this room the officer found a legally executed will by deceased, properly witnessed, dated Chicago, March 29, 1932, and an unexecuted and undated one (probably written in Tucson) changing the executrix and some of the legatees. Both the executed will and the unexecuted one were torn in two, the tear being lengthwise and near the center of the sheet of paper on which each was written.
The estate consisted of personal property valued at $500 and the proceeds of insurance policies, payable to the decedent's estate, valued at approximately $3,000. The instrument, which we shall call the will, disposed [60 Ariz. 218] of decedent's property to her sister Helen L. Welch, her brother Arthur James Welch, her grandfather Arthur Henry Welch and to Marie Dufault (no kin), a long-time intimate friend and companion. Helen L. Welch was named therein as executrix. If the will is sustained, the legacy left therein to Dufault and the grandfather would lessen the amount going to the heirs at law, the sister and brother. The contest is over the legacy to Dufault and the grandfather and is between the administrator with the will annexed, Clampitt, and the heirs at law. The grandfather is taking no part in the controversy. The administrator with the will annexed seeks to sustain the will, while the heirs at law contend decedent left no will but died intestate.
Upon the assumption that decedent died intestate, the heirs at law requested the court to appoint Honorene M. Parker administratrix, which was done November 12, 1941, and thereafter she qualified and entered upon the duties of her office.
March 17, 1942, appellee Clampitt filed a petition for the probate of the above described instrument as the last will of decedent, for his appointment as administrator with the will annexed and for revocation of the letters of administration issued to Parker. This petition was resisted, under section 38-210, Arizona Code 1939, upon the grounds above indicated, that is, that Ethel Rose Welch died intestate. However, after a trial extending through June 9, 10 and 11, 1942, during which a full hearing was had and considerable evidence taken, the court took the case from the jury and admitted said instrument to probate, appointed Clampitt administrator with the will annexed and issued letters to him, and revoked the letters of administration theretofore issued to Parker.
The appellants, the sister and brother of decedent, being dissatisfied with the court's rulings during the trial and especially with its ruling sustaining the will, [60 Ariz. 219] have appealed. We shall in the course of this opinion refer to them as contestants and to the administrator with the will annexed as contestee.
The contestants first complain of the admission of the depositions of the subscribing witnesses to the will and of the attesting notary public, on the ground that no notice of the taking of such depositions was given to them, or the administratrix, or her attorneys. At the time the commission to take the depositions was issued (March 17, 1942) and at the times of their taking, no one had appeared to contest the will. The record shows that the heirs named in the will, one of whom was named executrix, were given notice of the hearing of the petition for probate of the will, as provided in section 38-207; that no contest of the will was filed until April 10, 1942, and that no protest against the use of the depositions was filed until the day of trial, June 9, 1942. The statute governing the taking of depositions
of subscribing witnesses, section 38-209, was followed and the objection to their use was properly disallowed. The new Rules of Civil Procedure, Rule 27 (a) (1), (2) and (3), now sections 21-710, 21-711 and 21-712, that provide ways of perpetuating the testimony of persons for future use under the circumstances therein enumerated, as an inspection thereof shows, have no reference to the evidence in a pending action, and contestants' reliance ...