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In re Gary's Estate

Supreme Court of Arizona

October 31, 1949

In re GARY'S ESTATE.
v.
GARY DE LANEY

Page 816

We hold the appellant's assignments of error are well taken. The judgment is reversed in accordance with the principles herein enunciated.

Morgan & Locklear, of Prescott, attorneys for appellant.

Charles E. McDaniel and John R. Franks, of Prescott, attorneys for appellee.

De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.

OPINION

De Concini, Justice.

Page 817

[69 Ariz. 230] This is an appeal from an order and judgment of the trial court denying the petition of plaintiff and granting judgment in favor of the defendant.

The facts as testified to by appellant, plaintiff below, and her uncle are as follows: Katie Gary De Laney (appellant) was born out of wedlock in Dixon County, Tennessee, in 1895. Deceased, Ambrose Gary, hereafter known as deceased, was her natural father. For about ten years after the birth of appellant decedent took [69 Ariz. 231] no notice of her and so far as the records disclose made no claim that he was her father. However, appellant's mother's family knew that he was her father.

When appellant was about ten years of age, decedent went to appellant's grandmother and her uncles with whom she had been living since her birth and stated to them that he was her father; that he felt he owed her the duty of supporting and educating her. He said he desired to do so as well as have her inherit his estate or a child's share of his estate. In order that he might accomplish this end he asked that he be permitted to adopt her and let her take his name. The grandmother and the uncle then living with the grandmother, as well as another uncle who had married and lived in the neighborhood, refused to accede to the request. Deceased made similar requests extending over a period of five to six months and they finally agreed with decedent that he might adopt appellant on the conditions that he stated, that is, that she was to assume his name, that he was to be responsible for her support and education and that she was to inherit his estate or a child's share thereof. Appellant's mother died when appellant was only three or four years old.

Decedent was working with the Western Union Telegraph Company at the time as a lineman and lived in railroad cars that were transported from place to place in that section of the country. He arranged with appellant's grandmother for appellant to continue to live with her and paid her $ 10 per month for appellant's support, also brought her clothing etc. He took her on trips with him. She gave him filial affection, devotion, association and obedience. This arrangement continued for approximately two years when decedent discontinued such support and abandoned the appellant. Deceased then married a young woman in the community and moved West. Appellant wrote him on several occasions and endeavored to ascertain why he had abandoned her, but she received no response. On one occasion she sent her picture to him by registered mail and received a registered receipt, but heard nothing from him.

Decedent's first wife died, and subsequently, in 1923, he married Ella Gary, appellee herein, in Tuscon, Arizona. At the time of their marriage they each had some small amount of money which they used jointly in purchasing a place, and at the time of decedent's death in the latter part of 1945 or the early part of 1946 they had accumulated community property of the appraised value of approximately $ 25,000. The decedent executed a will in 1924 which was admitted to probate in the probate court of Yavapai County, February 15, 1946, in which he devised to his wife all of his property of every kind and character, except that he made a special bequest to appellant in the sum of $ 10.

Appellant brought this action to revoke the will and to have the oral agreement between [69 Ariz. 232] her and her grandmother and decedent ...


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