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In re Estate of Monaghan

Supreme Court of Arizona

May 17, 1943

In the Matter of the Estate of Robert J. Monaghan, Deceased,
v.
RICHARD H. KENNERDELL, Appellee ELIZABETH G. MONAGHAN, Appellant,

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. H. S. McCluskey and Mr. Thomas A. Flynn, for Appellant.

Messrs. Cornick & Carr, Mr. Wallace W. Clark and Mr. Ozell M. Trask, for Appellee.

OPINION

[60 Ariz. 347] STANFORD, J.

This is a case of the contest of a will, the ground for contest being that the decedent lacked testamentary capacity to make the will.

The will was executed April 18, 1940, and testator, Robert J. Monaghan, died on or about the 10th day of May, 1941, at Phoenix, Maricopa County, Arizona. On May 17, 1941, Richard H. Kennerdell, the person named executor in the will in question, filed the will [60 Ariz. 348] for probate in said county. The hearing on probate proceedings was set for June 3, 1941, and on May 26, 1941, the appellant filed an opposition to probate the same, and the matter of the contest was heard before a jury, the case having been set for trial in September, 1941. On June 3rd an affidavit of bias and prejudice was filed by the executor causing the case to be transferred from the division of the court of Judge J. C. Niles to the division of the court of Judge M. T. Phelps.

The following was the interrogatory submitted to the jury at the close of the case:

"Was the deceased, Robert J. Monaghan, of sound and disposing mind on April 18, 1940, when he executed the instrument filed herein for probate as his last will and testament? (Answer yes or no)."

The jury answered in the affirmative in rendering its verdict.

The fourth paragraph of the will reads as follows:

"Fourth: I give, devise and bequeath to my wife, Elizabeth G. Monaghan, from whom I have been permanently separated for four (4) years or thereabouts, the cash sum of ten ($10.00) dollars. I represent that in June, 1936, or thereabouts my said wife and I entered into a property settlement agreement which said agreement is of record in the office of the county recorder of Yavapai County, Arizona."

That there was a settlement of personal property between the parties hereto as

Page 391

follows, except signatures and notary acknowledgement:

"The undersigned, R. J. Monaghan and E. G. Monaghan, his wife, have this day agreed on a complete cash and chattel settlement, satisfactory to both parties, it being understood and agreed that the only community property ...


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