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In re Estate of Cook

Supreme Court of Arizona

June 19, 1945

In the Matter of the Estate of William Walter Cook, Sometimes Known as W. W. Cook, deceased;
WILLIAM CHARLES COOK (Whose True Name is Carlos Guillermo Calles), VIRGINIA COOK LOPEZ (Whose True Name is Virginia Lilia Lopez), and JOSEPHINE LILY COOK, by Her Guardian Ad Litem PAUL M. ROCA (Her True Name Being JOSEFA LILIA CALLES), Appellees LUCILE MacCALLEN and FLORENCE DeWITT, Appellants,

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge.

Judgment reversed with directions.

Mr. Leon S. Jacobs; Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellants.

Messrs. Moore, Romley & Roca, for Appellees.

Udall, Superior Judge. Stanford, C. J., and Morgan, J., concur. LaPrade, J., having disqualified, the Honorable Levi S. Udall, Judge of the Superior Court of Apache County, was called to sit in his stead.


Udall, Superior Judge.

Page 798

[63 Ariz. 80] We believe a resume of the proceedings had in the trial court on this will contest, together with the factual background, will make for clarity in understanding the three simple issues involved on this appeal.

William Walter Cook, better known as Billy Cook, and hereinafter referred to as the decedent or testator, was born in California in the year 1859. He was married prior to coming to Arizona in 1885. His wife died in the year 1923 and he never remarried. A son, their only child, died at the age of fourteen or fifteen years. Shortly after coming to Arizona he formed a partnership with his brother-in-law, and they engaged in the ranching and cattle business and subsequently acquired some 3000 acres of potential farming land in the vicinity of Glendale, Arizona. Upon the dissolution of the partnership he became the owner of the valley ranches, and in their operation and development he became so financially involved that he was frequently in danger of losing all his possessions. When the ranch was sold in 1937 to Dean Stanley for some $ 92,600 his financial troubles were over. He also owned at various times some city property in Phoenix, which included the family home at 141 East Palm Lane.

The testator first met the two sisters, who are the appellants (hereinafter referred to as they were in the lower court as defendants), in the year 1924. Subsequent to his wife's death he rented his home and boarded and roomed with a Mrs. Lewis (now Kinsey). [63 Ariz. 81] From the fall of the year 1927 the testator lived under the same roof as the defendants, first at their residence on Sixth Street, as a roomer and boarder. Later, in 1932, at his insistence they all moved into his old home on East Palm Lane, where they were joined by Miss Elizabeth Arnold. The living expenses were shared by the occupants. During all this period, on numerous occasions, the defendants came to the testator's financial aid by loaning him substantial sums of money, or by endorsing his notes at the bank so that he could borrow from it directly. Doubtless in appreciation for these financial favors, as well as for the care and attention they were bestowing in making a suitable home for him, during his lifetime he conveyed outright to them considerable property, both city lots and farming land, and eventually, by the terms of his will, he purportedly left them his remaining estate.

The testator died suddenly at his home in Phoenix on February 6, 1943. The defendants, who had been named as joint executrices of his will, immediately filed their petition to probate the will. Thereupon the three parties, designated here as the appellees, and in the lower court as contestants or plaintiffs, filed their written contest to the probate of said will. They alleged that they were the "sole surviving children

Page 799

and the sole heirs at law of said decedent . . . and are persons interested in said will and in the estate of said decedent."

Two grounds of contest were specified, viz.: (1) Lack of testamentary capacity; and (2) undue influence by defendants. The answer to the second amended contest denied: (1) Contestants are the children and sole heirs at law of deceased; (2) lack of testamentary capacity of deceased; and (3) undue influence by defendants.

The answer affirmatively alleged: (1) That the plaintiffs were not legitimized or adopted as the children [63 Ariz. 82] of deceased under any law of Arizona; (2) that they lacked legal capacity to contest said will; (3) that the Court was without jurisdiction to entertain the contest for the reasons specified in (1) and (2), supra; (4) that the plaintiffs were guilty of laches, in that neither they nor their mother took any action to establish their parentage under the laws of Arizona during the lifetime of the deceased.

A lengthy jury trial followed and at the conclusion of the presentation of evidence and after the parties had rested, the defendants moved the court to instruct a verdict in their favor upon the grounds that the evidence was insufficient to establish (a) that any of the plaintiffs were the children or heirs at law of testator, (b) or to sustain either ground of the contest. Counsel having stipulated that one phase of the ...

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