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Ackerman v. Kaufman

Supreme Court of Arizona

June 5, 1944

ABRAHAM ACKERMAN, Appellant,
v.
JUDAH A. KAUFMAN, as the Executor of the Estate of Annie Kaufman, Deceased, Appellee

APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.

Mr. V. L. Hash, for Appellant.

Messrs. Conner and Jones, for Appellee.

OPINION

[61 Ariz. 347] McALISTER, C.J.

This is an action by Abraham Ackerman against Judah A. Kaufman, as executor of the estate of Annie Kaufman, deceased. Both parties were residents of Pima County, Arizona, and Annie Kaufman died on September 3, 1940, and Judah A. Kaufman was appointed executor of her estate on the 25th day of September 1940, and qualified as said executor on that date.

The complaint of Abraham Ackerman, the brother of Annie Kaufman, is as follows:

"...

"II. That the defendant, Judah A. Kaufman, is a resident of the County of Pima, State of Arizona. That the said defendant, Judah A. Kaufman, was appointed Executor of the Estate of Annie Kaufman, deceased, in probate case No. 8054, by the Superior Court of the State of Arizona, in and for the County of Pima, on the 25th day of September, 1940; and that said defendant was appointed Executor of said Estate of Annie Kaufman, deceased, by said Court on the 25th day of September, 1940, and qualified as said Executor on said date.

"III. That said Annie Kaufman, deceased, died while having and owning real property and personal property situated in Pima County, Arizona, and did leave a will and testament which was destroyed and never probated after her death. That the will and testament now on file in said Probate Case No. 8054 is not the true will of said Annie Kaufman, deceased. That said substitution was fraudulently made for the purpose of defrauding this plaintiff of his share of said estate of Annie Kaufman, deceased.

"IV. That said Judah A. Kaufman did utter, publish and pass, as true and genuine, a fraudulent will, purporting to be the last will and testament of Annie Kaufman, deceased, and collected the sum of $43,887.27, [61 Ariz. 348] by filing the said will for probate in the Superior Court of the State of Arizona, in and for the County of Pima, on September 13, 1940.

"V. That the plaintiff did not discover the fraud and the fact that said Judah A. Kaufman did utter, publish and pass as genuine and true, the said fraudulent will, until the 12th day of March, 1942; and this plaintiff did not know before this date that said will was fraudulent.

"VI. On September 13, 1940, the will of Annie Kaufman, deceased, was filed for probate in the Superior Court of the State of Arizona, in and for the County of Pima; said will bearing the date of July 2, 1940. That the plaintiff, Abraham Ackerman, while in the Clerk's office of said Superior Court, after the filing of said will of said Annie Kaufman, deceased, the same having been filed at the request of said Judah A. Kaufman plaintiff Abraham Ackerman, examined the will of said Annie Kaufman, and then and there found the will to be merely signed in Jewish writing, which, when interpreted into English then read 'HIA ITA.' Two inches to the left of and on the same line with the written signature 'Hia Ita,' there was a scratching around three or four times, in ink, in the shape of an egg.

Page 364

"VII. That on March 12, 1942, the plaintiff, Abraham Ackerman, examined the will of Annie Kaufman, deceased, while in the said Clerk's office, and discovered that the signature of Annie Kaufman, deceased, had been changed from 'Hia Ita' in Jewish writing, to 'Annie Ita,' also in Jewish writing; and under the signature 'Annie Ita' in Jewish was the signature of Annie Kaufman which was written in English. The oval-like scratching around was not present as it was when plaintiff first saw the will on file in said Clerk's office. Then plaintiff knew that the will and testament on file in said probate matter -- In the Estate of Annie Kaufman, deceased, was and is a ...


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