APPEAL from a judgment of the Superior Court of the County of Pima. Arthur T. LaPrade, Judge.
Messrs. Krucker, Fowler & Dodd, of Tucson, Arizona; Mr. Charles E. Taintor, of Los Angeles, California, for Appellant.
Messrs. O'Dowd & O'Dowd, and Mr. Clifford R. McFall, for Appellees.
Udall, Superior Judge. Stanford, C. J., and Morgan, J., concur. Arthur T. LaPrade, J., having disqualified, as he was the trial judge, the Honorable Levi S. Udall, Judge of the Superior Court of Apache County, was called to sit in his stead.
Udall, Superior Judge.
[62 Ariz. 275] Catherine Hesse at her death on March 20, 1941, at the age of 76 years, left a will bearing date of April 25, 1939, and a codicil dated October 30, 1940. The codicil merely changed the amount of one specific bequest. These two documents were admitted to probate as her last will and testament on April 15, 1941. Shortly before a year expired Elizabeth McNutt, one of two sisters of decedent, instituted a contest alleging undue influence by persons unknown, and incapacity to make a will.
Upon plaintiff's (parties will be referred to as they were in the trial court) demand the will contest was tried before a jury, and upon the conclusion of plaintiff's case the court granted defendants' motion for an instructed verdict, finding the will to be valid. Thereupon the court entered judgment sustaining the will, from which judgment this appeal was taken.
Some procedural questions are raised: Paragraphs 8 and 9 of the petition to contest attack the validity of specific bequests to the Roman Catholic Church, which are contained in clauses 6, 7, and 8 of the will. The bulk of the estate is purportedly disposed of therein, one being the residuary clause which [62 Ariz. 276] is most bitterly attacked. The gist of this attack is that an invalid trust is attempted to be created; that there is no qualified trustee to take; that the beneficiary is not a corporation sole; that there is no separation of the legal and equitable title between purported trustee and beneficiary; that the purported trust violates the rule against perpetuities; that the cy-pres doctrine has no application; that a resulting trust is created in favor of petitioner. Then she alleges that if these provisions of the will are declared invalid that the property would then pass to petitioner and others under the law of descent and distribution as if the decedent had died intestate.
While the conclusion last stated is doubtless correct, the trial court refused to permit the reading of these paragraphs of her petition to contest, or the corresponding paragraphs of the answer, to the jury and also refused to permit the introduction of any evidence in support of these allegations. The reason given by the court for these rulings was that no question of fact was involved, that it was purely a question of law, and that furthermore none of these matters had to do with the legality or validity of the will; that in this will contest proceeding the court was not concerned with the interpretation or effect of specific
provisions of the will. These rulings form the basis of two assignments of error.
Manifestly the ruling of the trial court was correct in all respects, for the reason that our statute (Arizona Code Annotated 1939, Secs. 38-201 to 38-226) governing probate and contest of wills expressly limits the issues that may be raised on a will contest to those involving (1) testator's competency to make a will, (2) his freedom at time of execution of the will from duress, menace, fraud or undue influence, (3) due execution and attestation of the will by testator and subscribing witnesses, and (4) any other substantial ground affecting the validity of the will (Sec. 38-210); and expressly [62 Ariz. 277] requires the court to admit the will to probate, if satisfied, from proof or facts found by jury, that (1) the will was duly executed; and (2) the testator when he executed the will was of sound mind and not acting under duress, ...