Rehearing Denied April 28, 1953.
[75 Ariz. 185] Marvin Johnson, of Phoenix, for appellant.
Clark & Clark, of Phoenix, for appellee First Nat. Bank of Arizona.
William C. Eliot, of Phoenix, for appellee Valdenegro.
Carl Tenney, of Phoenix, for appellee Rutherford.
This is an appeal by contestant, Jeanne LaBonne, from a judgment dismissing with prejudice her petition to revoke the last will and testament of Jean Orteig, deceased, which had been previously admitted to probate.
Jean Orteig, a recluse bachelor approximately ninety years of age, died testate on June 8, 1949. His last will and testament was dated June 4, 1948 and it was admitted to probate on August 10, 1950. The appellee, First National Bank of Arizona, was appointed and qualified as administrator with the will annexed. The whole estate was appraised at $6,516.26.
By the terms of the will testator bequeathed to contestant Jeanne LaBonne, the sum of $1; a similar amount to J. B. Marris; $2,000 was left to Mrs. Jennie Valdenegro, a neighbor who it was stated had 'faithfully cared for me during the past year'; $2,000 was bequeathed to Colonel Charles H. Rutherford (the attorney who drew the will) '* * * whose legal services over a period of considerable time, have proved both satisfactory and beneficial to me * * *'; and a former employee and friend, Mrs. Harriet Keegan of Prescott, was named as the residuary legatee and devisee.
The contestant, a niece of decedent, who by a prior will had been named as principal beneficiary, was originally from Toulouse, France, but when the contest was initiated was living in New York City. For many years prior to his death decedent had corresponded with her in France and early in the year 1948 he advanced money for her expenses to visit him in Arizona, with the thought that she would either care for him here or else take him back with her to France.
This contest of the validity of the will, after probate, was initiated within the year provided for under Section 38-216, A.C.A.1939. The amended petition (after reciting the jurisdictional facts) alleged: (a) the incompetency of the decedent to make a will, and (b)
'* * * that the said Jean Orteig was coereced into signing the said instrument by the false and fraudulent representations of the said Charles H. Rutherford and Jennie Valdenegro; that thereby, and not otherwise, the [75 Ariz. 186] said Jean Orteig was induced to execute the said pretended will * * *.'
The separate responses or answers of the administrator and legatees Rutherford and Valdenegro, in effect, constitute general denials. A jury was demanded by the contestant, and these were the issues at the trial held on June 14-15, 1951.
At the close of contestant's proof counsel for respondents moved for a directed verdict upon the grounds (1) that there was not sufficient proof to show incompetency at the time of the execution of the will, and (2) '* * * that there has not been shown any iota of evidence on the subject of undue influence * * * as alleged in the petition * * *.' The court sustained the motion on the first ground by refusing to submit the question of mental capacity for determination of the jury and this ruling has not been assigned as error. The motion based on the second ground was denied and, after all of the evidence was adduced, the matter of undue influence was submitted to the jury upon this single interrogatory:
'Was the deceased, Jean Orteig, on June 4th, 1948, at the time he executed the instrument purporting to be his last will and testament acting under the coercion and undue influence of Charles H. Rutherford or Jennie Valdenegro? (Answer yes or no).'
Nine of the twelve jurors answered 'Yes' to this query; contestant moved for judgment on the verdict, which motion was taken under advisement.
The appellees joined in timely moving for judgment notwithstanding the verdict (which we shall treat as properly raising a motion under rule 50(b), Rules Civ.Proc., A.C.A.1939, § 21-1015), upon the ground and for the reason:
'* * * that the evidence does not in any way support the verdict, but the evidence and all the facts and circumstances * * * clearly show that the said Jean Orteig, at the time of making the Will, was not acting under the undue influence or coercion of either Jennie Valdenegro or Charles H. Rutherford.'
This motion was granted on November 14, 1951. Objection to the form of judgment as first presented was sustained and the following minute order was made on December 3, 1951, viz.:
'* * * Amended Order granting motion for Judgment notwithstanding the verdict for the reason that the evidence shows there was only partial invalidity of the Will and by reason of such partial invalidity the plaintiff did not take ...