In the Matter of the ESTATE of Julie H. PITT, Deceased. Guy ANDERSON, Appellant,
A. C. KALKBRENNER, Appellee.
Rehearing Denied Nov. 29, 1960.
[88 Ariz. 313] Jennings, Strouss, Salmon & Trask, Phoenix, for appellant.
Moore & Romley, Phoenix, for appellee.
Marvin Johnson, Phoenix, amicus curiae.
This is a will contest. The appeal is from an order of the court below denying admission to probate of the will of Julie H. Pitt. The court's order was based upon a jury verdict finding specially that the will had been executed as a result of undue influence exercised over Mrs. Pitt by appellant, the proponent of the will and the principal beneficiary thereunder. The contestant, appellee here, is a nephew of the testatrix.
Appellant assigns as error the insufficiency of the evidence to support the verdict. The trial was lengthy, the evidence largely unconflicting. The parties agree that if in this haystack of testimony-four thick volumes of transcript--we can find even one needle of competent evidence reasonably tending to support the result below, the verdict and judgment must stand.
Julie H. Pitt departed this life on September 29, 1956, a resident of Maricopa County. Until 1940, she and her husband [88 Ariz. 314] lived in Clifton, Arizona, where shw owned and operated a hotel. In that year they
moved to Phoenix, where in 1945 Mr. Pitt died.
Guy Anderson was born in Graham County and his parents knew the Pitts in Clifton before his birth. His first memory of Mrs. Pitt was seeing her in his parents' home when he was a small boy of five or six years when Mr. and Mrs. Pitt visited in their home. Mrs. Pitt frequently came to Guy's office to visit him in later years. She had told other persons such as Matt Dannenhauer, of Clifton, former County Treasurer, State Legislator, Justice of the Peace and present Clerk of the Board of Supervisors, who was a close friend, that she felt responsible for Guy's success and looked upon him as a son. She also told Matt Dannenhauer that when she passed away she hoped there would be enough money of hers left to pay Guy for all he had done for her. This was prior to the execution of either will. Other witnesses from Clifton and Safford told of the high regard with which Mrs. Pitt always spoke of Guy Anderson. Mrs. Thompson, her next door neighbor in Phoenix for twelve years, likewise testified she spoke of Mr. Anderson 'with highest regard'. She loaned money to Mr. Anderson which he repaid. In later years she spent some Christmases in the Anderson home; she exchanged Christmas gifts with the Anderson family. One of the Anderson daughters was invited to spend a week with Mrs. Pitt in Phoenix and Guy assisted Mr. and Mrs. Pitt in completing the sale of the hotel in Clifton. When Mr. Pitt became ill in Safford in 1939, he called for Guy Anderson and Mr. Anderson went to him and likewise when Mrs. Pitt became ill in Clifton she sent for him. When Mr. Pitt passed away in Phoenix early in 1945, Mrs. Pitt held up the funeral a couple of days so that Mr. Anderson could attend. During Mr. Pitt's lifetime and while the Pitts lived in Phoenix, the Andersons would visit them two or three times a year which was likewise before either will was executed.
There were three wills executed by Mrs. Pitt, so far as the evidence discloses. In the nineteen-thirties Mrs. Pitt and her husband Willard A. Pitt executed similar wills in favor of each other. There were no bequests to any relatives. Mr. Pitt died in February, 1945, and Mrs. Pitt asked Guy Anderson to handle the probate of his estate. It was an estate of approximately $2,700. On one of Anderson's rather frequent visits to Phoenix and to Mrs. Pitt, she wanted to go to Safford and thence to Clifton to visit her good friend Teresa Spezia. Mr. Anderson took her in his car with him to Safford on May 11, 1945. She told him she wanted to make a will and on May 12 appeared at his office with Mrs. Spezia. While Mrs. Spezia remained outside, Mrs. Pitt went into Anderson's office and told him she wanted to make a will. [88 Ariz. 315] He asked her what bequests she wanted to make and she listed a bequest of $3,000 and the house to Kenneth Pitt, a nephew of her husband who was then living in her home; $2,000 each to Mr. and Mrs. Kalkbrenner; Teresa Spezia, $1,000 and a brooch; and $1,000 to Mrs. James Kerby. Mr. Anderson then asked her what she wanted to do with the rest of her property and she said 'I want to give it to you.' Anderson was startled and surprised and said as much. After some discussion of the bequests, she left. Charles Smith, who had been with Guy Anderson as an associate, was in a small office connecting that in which the conversation took place and the door was open or partially open between the offices. He heard the conversation or most of it and suggested to Mr. Anderson that he, Mr. Smith, should prepare the will since Anderson was a principal beneficiary. This was done by Smith from Anderson's notes and in the afternoon it was signed in front of three witnesses. One of the three witnesses to this will was Tom Maddock, also a witness to the 1947 will. He testified that Anderson asked Mrs. Pitt why she had made the will with him as a principal beneficiary and she explained that she had no one else that she wished to remember other than those mentioned and that Mr. Anderson had been her husband's friend.
Later, Mrs. Pitt quarrelled with Kenneth Pitt, her husband's nephew, and asked him
to leave. Thereafter, she repeatedly asked Anderson to rewrite the will leaving Kenneth out. The will was finally rewritten by Mr. Smith exactly as the first but with the bequest to Kenneth omitted. This is the will that is in question in this litigation. Mrs. Pitt was living on Portland Street and Anderson brought the will to Phoenix with him. On the day before it was executed he had Mrs. Pitt read it and told her if it was not what she wanted she was free to change any part of it including the bequest to him. She said that was the way she wanted it. The following day, February 16, 1947, Anderson saw Mike Bennett and Tom Maddock in the lobby of the Adams Hotel and took them out to Mrs. Pitt's home to act as witnesses to the execution of the will. Both witnesses testified at some length concerning the formalities of the execution. Bennett said that after some polite conversation Mrs. Pitt took the lead and asked Anderson to produce the will, which he did. That Mrs. Pitt read it and Anderson asked her: 'Mrs. Pitt, are you sure this is what you want to do?' and she said 'Yes'. The will was then executed in counterparts and the witnesses and Anderson left. The will was placed in Mrs. Pitt's safety deposit box where it was shown in the inventory made at the time of the guardianship in September of 1949.
There are two other witnesses called by the defendant who should be mentioned. Blaine Shimmel, Phoenix attorney, testified he had known Mr. and Mrs. Pitt from [88 Ariz. 316] the days when he practiced law in Clifton and that after he came to Phoenix and approximately ten or twelve years ago he handled two legal matters for them. Although he did not remember the details, he did remember that it was Mrs. Pitt who conducted the business.
Mrs. Janet Graham testified that she is an assistant cashier of the Valley National Bank in charge of the savings department. She became acquainted with Mrs. Pitt in 1945 when Mrs. Pitt would bring coupons clipped from securities in her safety deposit box to Mrs. Graham to be cashed. She described Mrs. Pitt as a very demanding and self-willed woman. Mrs. Graham further testified that as an officer of the bank she was supposed to be 'pretty much new business minded' and to try and interest customers in making wills and trusts and bringing them to the bank. She testified that some time between 1946 and July, 1948, she talked to Mrs. Pitt about making a will. Mrs. Pitt heard her out and then informed her that she had her own attorney and counselor and that she would take the situation up with him. She further testified that Mrs. Pitt was always very positive and was on this occasion.
Appellee in his brief fairly summarizes considerable testimony concerning Mrs. Pitt's character ...