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In re Schade's Estate

Supreme Court of Arizona

April 13, 1960

In the Matter of the ESTATE of Elsie SCHADE, also known as Elsa Schade, Deceased.

Page 174

[87 Ariz. 343] Garland, Sanders & Martin, Las Cruces, N.M., for appellants.

Anderson and Smith, Safford, for appellee.

STRUCKMEYER, Chief Justice.

In July of 1954, Herbert Schade, appellee, hereinafter called proponent, petitioned the Superior Court of Greenlee County, Arizona, for admission to probate of a purported lost will of his mother, Elsie Schade, also known as Elsa Schade. The petition was opposed by appellants, Karl W. Schade, a brother, and three married sisters, Margaret Broadwell, Louise Perry, and Charlotte Newell, all natural children of Elsie Schade, hereinafter called contestants. The will was admitted to probate pursuant to the following facts:

In December of 1929, one Eugene Schwab, a real estate agent residing in Clifton, Arizona, at the instigation of Elsie Schade, drafted this instrument:

'Last Will and Testament of Elsie Schade.

'I, Elsie Schade, wife of Karl M. Schade, residing at Clifton, Greenlee County, State of Arizona, declare this to be my last will, hereby rovoking all wills and testamentary papers heretofore made by me.

'I devise and bequeath all the estate and effects whatsoever and wheresoever, both real and personal, to which I may be entitled, or which I may have power to dispose of at my decease, unto my dear husband, Karl M. Schade, residing with me at Clifton, Greenlee County, Arizona, absolutely; and I appoint

Page 175

him sole executor of this my last will, and guardian of our infant children.

'I desire and direct that he be exempt from giving any surety or sureties on his official bond as executor.

'In Witness whereof I have hereunto set my my [sic] hand this ___ day of Dec., 1929.


'Signed by the said Testatrix, Elsie Schade, as her last will, in the presence of us, at her request, and in her presence, and in the presence of each other, we have hereunto subscribed our names as witnesses.



The instrument is an unsigned copy from the files of Eugene Schwab. The original has never been produced.

[87 Ariz. 344] Elsie Schade died on November 20, 1943. At that time, her husband, Karl M. Schade, was still alive. He, however, passed away on March 13, 1946, without having attempted to probate his wife's estate. Contestants, in their statement in opposition to probate of the will, raised four issues:

1. That the purported will was not duly executed by Elsie Schade.

2. That it was not properly attested by subscribing witnesses.

3. That the copy was not a true and correct copy of the original will.

4. That if the will was properly executed and attested and established as a true and correct copy of the original, still the original was not in existence at the time of Elsie Schade's death.

The issues so raised are in substance the issues presented to this court on appeal, there being fundamentally here questioned the sufficiency of the evidence to sustain the judgment of the court below.

On issues 1, 2, and 3, the evidence is without conflict and plainly justifies their withdrawal by the trial court from consideration of the jury. In this jurisdiction it is procedurally proper for a court to instruct a verdict in favor of a party where to have ruled otherwise would have permitted the jury to draw speculative inferences not based on probative facts. Casey v. Beaudry Motor Company, 83 Ariz. 6, 315 P.2d 662. For the same reason, issues presented by pleadings should not be submitted if unsupported by evidence. Nor do we think that the rule is modified by the statute, A.R.S. § 14-353, requiring that issues of fact involving validity of the execution and attestation of a will by decedent or subscribing witnesses be submitted to a jury. Where the issue is speculative, no question is presented for the jury's determination.

The evidence in favor of the validity of the execution and attestation and of the terms of the will is clear and unambiguous. Eugene Schwab, draftsman of the instrument and a subscribing witness, testified that he was well acquainted with Elsie Schade for much of her life, having attended both her wedding and her funeral; that in 1929 he drew a will for her which read and signed in his presence and in the presence of one Karl Claus, now deceased; that she was then of sound mind and acting of her own free will; that the will was executed in the presence of the subscribing witnesses and by the subscribing witnesses in the presence of each other and in the presence of Elsie Schade; that she then left with the original will which he never saw again. He further testified that the carbon copy introduced in court was made at the same typing operation as the original, and that it is an exact copy, incorporating the provisions of the original will. A carbon copy of a will, when supported [87 Ariz. 345] by oral testimony that it is an exact copy of the original, is admissible as secondary evidence to establish the making and the contents of a will that has been lost or destroyed. In re Auritt's Estate, 175 Wash. 303, 27 P.2d 713.

The disinterested witness, Ernest Schade, a cousin, testified positively and unequivocally:

'Q. I'll hand you Contestant's Exhibit number '1' for ...

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