In re WALTERS' ESTATE. WALTERS
WALTERS et al.
[77 Ariz. 123] Frank J. Barry, Jr., Tucson, and Lawrence M. Cahill, Los Angeles, Cal., for appellant.
Wesley E. Polley, Bisbee, for appellees.
DONOFRIO, Superior Court Judge.
This is an appeal from a judgment denying probate to the will of Elias Meers Walters on the ground of his testamentary incapacity. The decedent was grievously injured in an accident on October 14, 1951, on his ranch near Willcox, Arizona, which resulted in his death the following day. He left surviving three grown children and a divorced wife who was not the mother of the children.
A few hours after the accident he made a will leaving the bulk of his estate to his son, the appellant, John Robert Walters, with bequests of $100 each to his other two children Laura and Walter and to his exwife, Katherine. Petition was filed for the probate of the will and his children Laura [77 Ariz. 124] Erma Heinemann and Walter O. Walters timely filed their contest on the grounds of testamentary incapacity. Appellant filed an answer denying the contention set out in the contest. Trial was had before a jury on the sole issue of testamentary capacity, and the jury returned its verdict finding the deceased was not of sound mind at the time of the making of the will. Motion for judgment notwithstanding the verdict was denied, and a judgment entered in accordance with the findings of the jury.
The only question to be determined by this appeal is whether the evidence is legally sufficient to support the verdict.
With the exception of the witness Dr. P. Paul Zinn, whose testimony will be treated separately, the evidence without contradiction,
in substance shows the following facts: The decedent was a man 67 years of age and solely operated a ranch at Pearce, Arizona. His children were all over the age of 30 years and living in California on the day the will was made.
On Sunday, October 14, 1951 he was operating a mechanical hay-baler in a field on his ranch. While attempting to adjust some string, his right hand was caught between two rollers and his arm and shoulder were carried into the machine and severely crushed and mangled. He was later discovered by a neighbor who summoned help and called Dr. William F. Havemeyer of Willcox. It took them an hour to extricate him. Decedent was suffering from shock and pain but was of sound mind and answered questions with clarity. At this point Dr. Havemeyer gave Walters an intravenous injection of one-sixth grain of morphine sulfate and had him removed to the Willcox Municipal Hospital. On arrival he was able to stand for a moment while being put on a stretcher. In the hospital intravenous injections were commenced, including blood, plasma, dextrose and saline. Shortly after his arrival he was given 100 mg. of demerol in the vein to relieve pain. Shortly after his arrival at the hospital and before making his will, Walters asked a friend to go to the ranch and get his purse, telling him 'just where to find it', and asking him to notify a neighbor of the accident.
About an hour after his arrival, Walters inquired about making a will, and Dr. Havemeyer advised him that he ought to make a will if he desired. A lawyer was not available, and Hospital Superintendent R. V. Rawlinson offered to take down the words as Walters dictated. After writing five lines, Rawlinson read them back and Walters made some corrections and then resumed dictating until the will was finished. The entire instrument as corrected was read back and Walters signed it with his left hand with the assistance of Rawlinson and a nurse. Nurses Sanchez, Belcher, Watson, and Flick were present during the making of the will and all but Nurse Flick signed as witnesses. The context and form of the will meets all legal requirements. It is to be noted that testator's daughter's [77 Ariz. 125] name Laura Heinemann was spelled as Laura Heineman in the will.
After the execution of the will decedent asked that a friend, Mr. Paul Duncan, be summoned; he shortly appeared and Walters asked him to examine the will he had made and see if it was all right. The friend later secured an attorney who drew a more formal will but Walters was too weak by that time to understand or sign the instrument. Walters was thereafter removed to a Tucson hospital where he died the morning of October 15th.
All of the witnesses present before and at the making of the will testified without contradiction that decedent was of sound mind at the time. Mr. Rawlinson's testimony was to the effect testator was completely coherent, conscious and rational, and that he was of sound mind. He further testified that his mental condition was good until he began to sink after he had talked to Mr. Duncan, which was after the execution of the will.
The nurses and hospital employees, Earlene Belcher, Mercedes Sanchez and Elizabeth Watson, who witnessed the will and were present during its execution, stated in effect the same, that testator was conscious, mentally alert and of sound mind at all times.
Bearing in mind these facts, let us analyze the law governing will contests: The burden of proof is on the contestants to prove by a preponderance of the evidence that the will is invalid. When the claimed invalidity is alleged to be the testator's incompetency, the contestants must produce sufficient evidence to rebut the presumption of testamentary capacity. In re O'Connor's Estate, 74 Ariz. 248, 246 P.2d 1063; In re Greene's Estate, 40 Ariz. 274, 11 P.2d 947; In re Perkins' Estate, 195 Cal. 699, 235 P. 45.
The policy of the law favors testacy, In re O'Connor's Estate, supra, and this policy would be defeated if wills were lightly set aside. Hence it is the duty of a court carefully to scrutinize a verdict finding a will invalid and ...