In re O'CONNOR'S ESTATE.
CAMERON et al KELSEY
Reversed with directions.
Frank J. Barry, Jr., James V. Robins, Nogales, for appellant.
Nasib Karam, Nogales, for appellees.
Phelps, Justice. Udall, C. J., and Stanford, J., concur. La Prade, Justice (dissenting in part, concurring in part). De Concini, J., joins in Judge La Prade's dissent.
[74 Ariz. 249] This case involves two appeals, one from the order and judgment of the trial court adjudging the will of Emma M. O'Connor, deceased to be invalid upon the ground (1) that she was mentally incompetent to execute the will on the date of its execution; and (2) that it was executed as the result of undue influence being exercised upon the deceased by Harry W. Kelsey, sole beneficiary under the will. The second appeal is from the order of the trial court appointing a general administrator of the estate of said deceased during the pendency of the will contest, upon the ground that [74 Ariz. 250] the court was without jurisdiction to make such appointment, and that said appointment is therefore null and void.
The facts are that deceased was the surviving spouse of Judge W. A. O'Connor who died in 1933. She and Judge O'Connor were married in 1901. Kelsey married Nellie Walker, sister of Mrs. O'Connor, in 1902. The Kelseys acted as best man and bridesmaid respectively for the O'Connors and the O'Connors acted in the same capacity for the Kelseys when they were married.
The O'Connors and Kelseys were very close in their family ties. Nellie Kelsey died in 1915. At the time of her death the Kelseys owned the home now belonging to the estate of the deceased. At that time Kelsey stated to the O'Connors he could never live in the house again. He then turned the keys over to them and later conveyed the property to the O'Connors as a gift subject to a mortgage in the sum of $ 3,250 which the O'Connors paid.
During the life of Judge O'Connor both he and the deceased frequently stated to many of their friends who testified at the trial in this case, that they (the O'Connors) wanted Kelsey or Kelsey and Edith, his second wife, to have the property here involved upon the demise of the O'Connors. They also made this fact known to the Kelseys on many occasions. After Judge O'Connor's death, Mrs. O'Connor continued throughout her life to express the same desire and intention both to the Kelseys and to her friends, stating in connection therewith, that it was the wish or desire of her husband also that the Kelseys should have the property. After Judge O'Connor's death the Kelseys took care of all of Mrs. O'Connor's business including the performance of minute errands. Mrs. O'Connor trusted Mr. Kelsey implicitly and relied upon him to look after her affairs and her confidence was not misplaced. There is no question but that the relation between them was fiduciary in character. Mrs. O'Connor procrastinated grievously in attempting to carry out her oft-expressed desire and intention of herself and Judge O'Connor that the home property should go back to Kelsey.
The deceased kept the vacant rooms of her home rented which furnished her a small income. Among those who occupied a room in the home was a school teacher by the name of Engleman who during his four years residence in the home, became quite friendly with Mrs. O'Connor and was much interested in her welfare. When the school term ended in May 1947 he told the Kelseys and Gladys Cameron, a niece of Mrs. O'Connor and one of the appellees herein, that in his opinion Mrs. O'Connor, who was then about 80 years old, should not be left in the home alone. The evidence disclosed that Mrs. O'Connor was afraid and kept her doors securely locked even when the rooms were full of occupants. The nieces and nephews could not or did not do anything about the matter and the Kelseys went over and slept in the home of Mrs. O'Connor at night from May 23, 1947, [74 Ariz. 251] until the last week in August. They would return to their own home in the morning and after preparing and serving their breakfast Mrs. Kelsey would return to the O'Connor home and perform housework for Mrs. O'Connor until 12 o'clock each day and on some occasions would remain as late as one, two or three o'clock in the afternoon. During the last week in August 1947, pursuant
to a verbal arrangement with Mrs. O'Connor, the Kelseys moved into the O'Connor home and lived there continuously thereafter until the death of Mrs. O'Connor in March 1948.
Mrs. O'Connor became seriously ill on December 3, 1947, and never fully recovered from such illness. She would get better at times but the improvement was only temporary. She was in bed most of the time after December 3 but would frequently get up for her meals until a couple of weeks before her death. Mr. Kelsey testified he never at any time requested Mrs. O'Connor to will her property to him but said that on December 15, 1947 she "was eating breakfast and I was having a cup of coffee with her, I had had my breakfast. She had always called me Kelse. She said, 'Kelse, I think I am going to die * * *'" and asked him if he wanted her to make a will. He asked her in turn if she wanted him to have her property and upon her answer in the affirmative, he then said "I want you to make a will."
On the same date, upon request of deceased, Kelsey went to the office of Honorable Duane Bird to convey Mrs. O'Connor's request to him to come to her home for the purpose of making the will. Mr. Bird had been Mrs. O'Connor's attorney for many years but he was out of town and Mr. Kelsey went to the office of the Honorable Frank J. Barry, another prominent Nogales attorney, and succeeded in persuading him to draw the will. Mr. Kelsey told Attorney Barry that Mrs. O'Connor wanted all of her property to go to him. Without consulting Mrs. O'Connor, Barry drew the will accordingly and on the following morning, after having made arrangements through Kelsey for witnesses, he took the will to her home for her execution.
Mr. Barry testified at the trial that immediately upon returning to his office he made a note or memorandum of his conversation with Mrs. O'Connor at the time he presented the will to her for her signature and proceeded to testify from his notes. He said:
"* * *. I told her that Mr. Kelsey had informed me she wanted to make a will and he stated she was to leave everything to him, and I asked her if she could read it, that I had the will with me, and she took the will and she looked at it, and said 'Do you want me to read it aloud?' and I said 'Yes, that would be a good idea,' and she began to read it clearly and distinctly. I was rather surprised she could read so well, and she began to read until she came [74 Ariz. 252] down to the first clause, and she halted after reading it.
"Q. Will you read the first clause so that the jury will know? A. (Reads) 'Having in mind that my deceased husband, William A. O'Connor, on many occasions expressed a wish that at the time of my death all property then owned by me should go to Harry W. Kelsey, who was the husband of my deceased sister, Nellie Walker Kelsey, and who has always been kind and good to me, I give, devise and bequeath all that I die possessed of to said Harry W. Kelsey.'
"Q. What did she say after she read that? A. She stopped when she came to that clause which referred to the leaving of the property to Harry Kelsey and said 'I don't understand that. I don't remember that. You know I have a sister Nellie.' And then I said to her, 'Don't you know that your sister Nellie has been dead for many years?' and she said, 'No, I do not.' I said 'Oh, yes, she has. I can get her death certificate for you from Phoenix in a few days.' She said 'But I don't want to put you to that trouble.' I said 'Don't you remember she had an unusual disease called pellagra, and that she died many years ago?' and she said 'Yes, I think I remember now. She was the wife of Harry W. Kelsey, as it says here. Ever since the death of Mr. O'Connor, Mr. Kelsey has been like a brother to me. I remember now Mr. O'Connor said everything should go to Mr. Kelsey because we owed a lot to him. He was very good to us. My husband said it would not amount to much, anyway.
* * *
A. Then she continued reading the will, and when she came to Clause 2 --
"Q. Will you read this? A. (Reads) 'In making this will I have in mind the children of my deceased brothers, William H. Walker, Harvey S. Walker, and Robert Walker, but to said children I do not leave anything for the reason above given.' When she read that clause she said 'Why, they don't need any help. They are all grown up.' I said to her then, 'Mrs. O'Connor, I knew your husband very well and regarded him as one of my closest friends. I certainly would not want to influence his widow to do anything she didn't want to do. Now you can keep this will and read it over, and if it is not what you want to do, don't sign it, but while I don't want to urge you to make your will I would suggest that you do so. If this will is not satisfactory tell me what you want, to whom you wish your property to go, or call in some other lawyer and have him prepare a will according to your wishes.' She said 'I don't understand anything about business. My husband always took care of anything.' I said 'Do you want to talk [ILLEGIBLE WORD] Harry? If [74 Ariz. 253] you do I will call him in, and I will come back later, if you want me, or I will wait here a few minutes if you want me.' and she said 'I don't want to detain you,' and I said 'I will stay,' and I went out where Mr. Kelsey was and said Mrs. O'Connor wanted to talk to him, and while he was in the room I engaged in conversation with Mr. and Mrs. Macgregor. My best estimate is that Mr. Kelsey was in Mrs. O'Connor's room for about ten minutes; it was not long. When he came out of her room Mr. Kelsey told me to go in and see her. When I went in I was curious to find out whether she was agitated or disturbed, but she was not. She was perfectly calm and self-possessed, just as I had left her. I was convinced she was perfectly able to make her will. She spoke clearly and intelligently. Outside of the forepart of my interview, that is, before she spoke to Mr. Kelsey, and she mentioned she had a living sister, I would not have the slightest doubt as to her mental capacity. Her subsequent admission that Nellie was dead seemed to be the result of recalling that Nellie had pellagra and died. She was holding the will in her hand when I returned, and she said 'This is all right. This is what I want to do.' I said 'Are you sure, now, this is what you want to do, because you must not do anything contrary to your own wish? This is to be your own will and not what anyone else may want.' She said 'Yes, I understand. I want my property to go this way. I want to do it this way.' I said 'All right. I will call in the witnesses, and I called Mr. and Mrs. Macgregor into the room. Mrs. Macgregor greeted her affectionately and stooped over and kissed her. They talked jokingly of her jumping about and she replied she had not jumped about very much but she had been out of bed that morning. I then said 'What is that paper you have in your hand?' She replied 'This is my will.' I asked 'Do you want Mr. and Mrs. Macgregor to sign it as witnesses?' She said she did, and I then asked her 'Is this will the way you want your property to go? and she said 'This is the way I want it,' and she then signed the will and Mr. and Mrs. Macgregor signed it. As I was folding the will up I asked her 'Did anyone prevail on you, Mrs. O'Connor, to make this will?' She answered 'No. That is the way I want it.' I then asked, 'Do you want me to give this (meaning the will) to Mr. Kelsey?' She said 'Yes.' She did not appear to have overexerted herself. She was still calm and self-possessed. She continued cheerfully talking to Mr. and Mrs. Macgregor as I left the room and delivered the will to Mr. Kelsey, * * *."
[74 Ariz. 254] Mrs. Pearl Macgregor who witnessed the will testified that when she went in to sign the will she asked her,
"'* * *
Emma, is this the way you really want it?' and she said 'Yes, that is the way I want it. I hope it is fixed all right so they won't have any trouble.' * * * That was while we were in the room alone. * * * She said 'Well, don't say anything about it. We just won't talk about it.' * * * She signed quickly and her hand seemed steady. She also remarked that she was glad she had done it, she had been wanting to do it for a long time. * * * She said she had been trying to get him (Duane Bird) to make out some papers for her but he is always so busy."
During her visit with Mrs. O'Connor after she signed the will Mrs. O'Connor was asking about the wife of Mrs. Macgregor's youngest son of whom she was very fond. The remainder of the conversation was casual and she was calm and composed during the visit. Mrs. Macgregor further testified that
"* * * * she said she was so glad that Mr. Barry had come in, he was an old friend of theirs, and he had taken care of this for her. She said Mr. O'Connor had been a friend of Mr. Barry."
Then she stated that when Mr. Macgregor came in and told her "I think we better go now" he commented on the picture of Judge O'Connor hanging at the left of the door as they were going out and she (Mrs. O'Connor) said "Yes, that is a very good likeness. I think he is around the house somewhere." Mrs. Macgregor further stated that deceased had spoken to her many times of Judge O'Connor's death but never made any statement concerning his being alive until after August of 1947. She had belonged to the Wednesday Card Club with Mrs. O'Connor for many years and was frequently thrown with her. She played bridge with Mrs. O'Connor in 1946 and the latter played very intelligently. She never at any time heard Mrs. O'Connor refer to her sister Nellie as being then alive. She stated Mrs. O'Connor had moments when she was not lucid but she had more lucid moments than otherwise.
Mrs. Macgregor estimated that Mr. Kelsey did not remain in Mrs. O'Connor's room over two minutes at the time he was requested by Mr. Barry to go in to see Mrs. O'Connor. Kelsey testified to the following conversation with Mrs. O'Connor on that occasion:
"She had the will in her hand and she said 'Do you want me to sign this?' and I said, 'Emma, have you read it?' and she said 'Yes,' and I said 'And you want to give the property to me?' 'Yes.' and I said 'Go ahead and sign it.'"
W. J. Macgregor who witnessed the will and who had known Mrs. O'Connor for years testified that she looked bright and [74 Ariz. 255] alert and that he believed her to be perfectly normal at the time she signed the will.
Mrs. Milliken who had belonged to the card club with Mrs. O'Connor for 23 years testified that Mrs. O'Connor never talked to her about Judge O'Connor as being alive in 1946 but did in the fall of 1947. She stated she saw Mrs. O'Connor nearly every day from October 1947 until her death in March, 1948. She stated she never saw Mrs. O'Connor during the morning that she was not lucid but she seemed tired in the evenings. She stated "In the morning she was as bright as I am right now." She further testified that Mrs. O'Connor had talked to her since the time that her brother Harvey was ill in the O'Connor home about her relatives and expressly stated that she did not intend that the sons of Harvey should receive anything from her estate and that the children of her brother Rob were well fixed, that their father had set them up in business and that she did not intend that they should receive anything and she expressed a dislike for Gladys Walker Cameron and ...