In re CASSIDY'S ESTATE. CASSIDY
DOWD et al.
[77 Ariz. 290] Lewis, Roca, Scoville & Beauchamp, by Harold R. Scoville and Walter Cheifetz, Phoenix, and Rodes K. Myers, Bowling Green, Ky., for appellants.
Rawlins, Davis, Christy, Kleinman & Burrus, and R. H. Armstrong and Keith A. Haien, Phoenix, for appellees.
Petitioner-appellant Ellen Cassidy filed a petition in the court below to revoke the probate of the will of her brother, Joseph D. Cassidy, deceased. The executrix and principal beneficiary of the will, respondent-appellee Mary G. Dowd, and respondent-appellee Andrew Kieffer, moved to dismiss the petition for failure to state a claim, which motion was granted. Judgment was entered against petitioner, and she appeals. The case presents several novel questions of law, and we appreciate the fine briefs counsel have filed in the matter.
Joseph D. Cassidy died November 8, 1947, at Laveen, Manicopa County, Arizona. [77 Ariz. 291] He left an estate of personal and real property valued in excess of $100,000, and surviving him were his sisters Ellen Cassidy (petitioner here), Mary Hogan, and Katie McCormack, his brother William Cassidy, and his nephew Andrew Kieffer, all of whom were nonresidents of Arizona.
On December 1, 1947, respondent Mary G. Dowd, having been nominated as executrix, petitioned for probate of the last will of the decedent, and two weeks later it
was ordered that the will be admitted to probate. The will bequeathed $4,000 to petitioner, $2,500 to Mary Hogan, $2,500 to Katie McCormack, $5,000 to William Cassidy, $8,000 to Andrew Kieffer, and a total of $1,250 to three Roman Catholic charities. The balance of the estate was given to respondent Mary G. Dowd by specific devise and bequest, and by grant of the residue of the estate. The latter was in nowise related to decedent.
The estate was administered in due course, and the bequests to the surviving relatives of the deceased and to the charities were paid. By receipt dated February 25, 1949, petitioner acknowledges payment of $4,000 to her. Two weeks later the final account and report and petition for distribution was filed, and on March 25, 1949, there was entered a formal decree approving the final account and report, ordering distribution of the residue of the estate to respondent Dowd, and ordering discharge of the executrix upon the filing of the proper vouchers.
So things remained, until the 20th of July, 1950, when petitioner filed in the probate action a contest of the will and petition to revoke the probate thereof. As authority for such petition she relied upon Section 38-221, A.C.A.1939, which declares:
'If no person, within one (1) year after the probate of a will, contests the same or the validity thereof the probate of the will is conclusive; provided that infants and persons of unsound mind, may bring such contests within one (1) year after their respective disabilities are removed, and a like contest to cancel a will for forgery or fraud may be brought within one (1) year after the discovery of such forgery or fraud, and not afterward.' (Emphasis supplied.)
The petition alleged in detail the facts heretofore recited, and then alleged fraud as follows:
'That the paper filed by the respondent Mary G. Dowd as the last will and testament of Joseph D. Cassidy and admitted to probate on December 15, 1947, was not the last will and testament of the said Joseph D. Cassidy, for the reason that at the time of the execution of the paper he did not possess a sound and disposing mind and at the time of the execution of said paper did not possess such mental capacity as to enable him to know the natural objects of his bounty, his obligations to them, the character[77 Ariz. 292] and value of his estate, and to dispose of it according to a fixed purpose of his own, and for the additional reason that at the time of the execution of said paper and throughout the last illness of the decedent, the respondent Mary G. Dowd attended him as his nurse and taking advantage of the intimate and confidential relationship existing between her and the decedent, and through undue influence, menace and duress exercised by said respondent on said decedent, and through fraudulent representations made by said respondent to decedent, she so influenced him as to destroy his free agency at the time of executing the said paper and caused him to go against his will in executing said paper, and in particular in making the provisions therein by which the respondent Mary G. Dowd was made the beneficiary of the major portion of the decedent's estate.
'That the respondent Mary G. Dowd well knew at the time she filed said paper that said paper was not the last will and testament of the decedent because of the facts alleged in paragraph V, all of which facts were well known to her, but that she nevertheless filed said paper with the fraudulent purpose of gaining for herself the major share of the estate of Joseph D. Cassidy and of depriving the petitioner of her just rights in said estate as an heir of the said Joseph D. Cassidy, and of depriving the respondents, Mary Hogan, Katie McCormack, and William Cassidy of their just rights as heirs of the said Joseph D. Cassidy.
* * *
* * *
'That the petitioner, Ellen Cassidy, did not discover the fraud perpetrated in procuring the execution of the paper alleged to
be the last will and testament of Joseph D. Cassidy, as hereinbefore alleged, until the month of July, 1949.'
It was further alleged that the notices of the hearing on the petition for probate were never received by petitioner, through the fraudulent machinations and collusion of Mary Dowd and Andrew Kieffer, in keeping them from being mailed or preventing their delivery after mailing.
In January, 1951, respondents moved to strike portions of the petition, and moved that the allegations of fraud therein be made more definite and certain by setting forth with particularity the facts and circumstances relied upon to establish fraud, to enable respondents to prepare a responsive pleading. Unfortunately, for some reason not disclosed by the record, neither of these motions were ever ruled on. Together with these motions there was filed respondents' motion to dismiss ...