NEWHALL et al.
Snell, Wilmer, Walsh & Melczer, of Phoenix, for appellants.
Clark & Clark, of Phoenix, for appellee.
De Concini, Justice. Udall and Stanford, JJ., concur. La Prade, Chief Justice (dissenting). J. Mercer Johnson, Superior Court Judge, concurs.
Note. Justice PHELPS having presided at the trial of this cause, the Honorable J. MERCER JOHNSON, Judge of the Superior Court of Pima County, was called to sit in his stead.
De Concini, Justice.
[69 Ariz. 260] Mary McGill Luke died in January, 1939, leaving a witnessed will dated August 4, 1928, which appointed her sister, Sarah C. McGill, executrix. Her will was admitted to probate February 8, 1945, in Maricopa County, Cause No. 19135. She left fifteen heirs. Sarah C. McGill was the sole devisee. Helen Newhall, another sister residing in Chicago, died in that city in 1944. The latter left a will bequeathing one-sixth of her estate to each of plaintiffs in this action, appellants herein, viz.: Franklin D. Newhall and Agnes Newhall, who bring this action as heirs. Franklin D. Newhall acts also in the capacity of administrator of the estate of Helen Newhall, deceased.
Plaintiffs first filed an action in the Superior Court of Maricopa County, being Civil Cause No. 55554, the file of which is not here on appeal, although the minute [69 Ariz. 261] entries of the court in that case are a part of the record by stipulation of counsel. The lower court dismissed plaintiffs' complaint in that action on May 8, 1946. The defendant, appellee, here maintains that said dismissal is res judicata and judgment of the lower court in the probate matter (Cause No. 19135) should be affirmed because of the dismissal of plaintiffs' complaint in Action No. 55554.
It appears from the meager records we have here in action No. 55554 that the court was without jurisdiction of that cause under our holding in Re Estate of Hesse, 62 Ariz. 273, 157 P.2d 347, except to dismiss it; and therefore the same is not res judicata.
Plaintiffs filed petition for determination of heirship in the probate matter, August 16, 1946. Twelve relatives by consanguinity of Mary McGill Luke filed a renunciation in favor of Sarah C. McGill, sister of deceased. Both sides made a motion for judgment on the pleadings and stipulated there was only one issue to be decided and that was whether or not the disposing clause of the will was valid. The will is set out haec verba below:
"The Last Will and Testament
"In the Name of God, Amen. I, Mary McGill Luke of the State of Arizona County of Maricopa, State of Arizona, being of sound and disposing mind and memory, do make, publish and declare this my last Will and Testament, hereby revoking and making null and void all other last Wills and Testaments by me made heretofore.
"First -- My Will is that all my just debts and funeral expenses shall be paid out of my Estate, as soon after my decease as shall be found convenient.
"Second -- I give, devise and bequeath to my sister, Sarah Campbell McGill all my real and personal property to be cared for and disposed of according to my personal directions to her.
"I nominate and appoint same Sarah Campbell McGill of Phoenix, Arizona as Executrix of this my Last Will and Testament.
"In Testimony Whereof, I have set my hand to this, my Last Will and Testament, at Phoenix, Arizona this 4th day of August, in the year of our Lord, One Thousand Nine Hundred twenty-eight.
"Mary McGill Luke.
"The foregoing Instrument was signed by the said Mary McGill Luke of Phoenix -- Arizona in our presence and by her published and declared as and for her Last Will and Testament, and at her request, and in her presence, and in the presence of each
other, we hereunto subscribe our Names as Attesting Witnesses, at Phoenix, Ariz. this 4th day of August, 1928.
"Estelle Holman Resides at Phoenix, Ariz.
"Maggie Malone Resides at Phoenix, Ariz.
[69 Ariz. 262] "Sections 1204 to 1225, Revised Statutes of Arizona, 1913, Chapter XIX, Title ...