Feitler v. LaChance

883 P.2d 427, 180 Ariz. 190, 155 Ariz. Adv. Rep. 15, 1993 Ariz. App. LEXIS 290
CourtCourt of Appeals of Arizona
DecidedDecember 28, 1993
DocketNo. 2 CA-CV 93-0277
StatusPublished
Cited by4 cases

This text of 883 P.2d 427 (Feitler v. LaChance) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feitler v. LaChance, 883 P.2d 427, 180 Ariz. 190, 155 Ariz. Adv. Rep. 15, 1993 Ariz. App. LEXIS 290 (Ark. Ct. App. 1993).

Opinion

OPINION

HATHAWAY, Judge.

This probate case concerns the interpretation of a holographic will. Appellant appeals from an order dated January 14, 1993, construing the will of decedent Janya Krokowsky as devising all of her property to Mary Brown. Appellant is a niece of the decedent, and under the express terms of the will was to receive only a token $100. Appellee is the [192]*192conservator of the Estate of Mary Brown, a longtime, close friend of the testatrix and a beneficiary under the will. There is no dispute as to the authenticity or validity of the will. The meaning and effect of several paragraphs of the will are disputed by the parties. However, our determination that the will granted Mary Brown a general power of appointment obviates the need to discuss the remaining issues raised by appellant.

Janya’s will reads in full as follows:

My last will and testament, this 30th day of June, 1981
(1) Being of sound mind and body, I wish to make clear the division of my worldly goods in the event of my death. I do not take life for granted and having acquired material things, this clarifies their disposition.
(2) I hereby appoint Mary M. Brown to act with power of attorney for me. With her wisdom she will carry out my wishes. She now resides at 9838 No. 17th St., Phx.
(3) First, I leave my home at 1208 East Solano Drive, Phoenix 85014 Arizona to Mary Brown. In the event of her death, the house minus furnishings is bequeathed to the State of Israel in memory of my beloved mother, Esther Zolonge. The contents of the home can be given to friends whose friendship has been important in my life.
Dr. David LaChance Charles Braymer Ruth Dippell
(4) All my investments I leave to my sister, Vishka K. Herbert. They are the following: [list of investments].
(5) Nothing I owned is to be given to Merle Feitler, or members of her family or Howard Shlay and members of his family. A $100 token for each of them is allowed in case of any dispute. I have been very disappointed in their lack of sensitivity and consideration toward my deceased sister, Marion Stein, their mother. Their selfish motivation and self concern is a painful remembrance to me.
(6) To Mary M. Brown, with power of attorney, their [sic] is a savings account at the Willetta branch Valley Nat. Bank to take care of my remains at Greenwood Mausoleum at North Van Burén St. My checking account is for expenses occurring in that regard too. A small Desert Schools Credit Union Act. [sic] 817 will be of further help.
(7) My netsukes are the property of Mary M. Brown. Her acts of caring and devotion have entitled her to many things I valued.
(8) I want no eulogies, a simple grave site Hebrew prayer.
(9) In the event my heirs, my sister Vishka K. Herbert, or Mary Brown are not able to fulfill their part in this my last will and testament an attorney from the Valley Bank trust department designated below can do so.
(10) No bond is required for Mary M. Brown attorney:
signed: Janya Krokowsky Mattes 1208 E. Solano Dr.
Phoenix 14 Az.
June 30, 1981

Witnessed by:

David LaChance 7/6/81
Charles J. Boehmer, Jr. 7-6-81 411 Directesly Art. [writing not decipherable]

The dispute between the parties arose mainly because Janya’s sister, to whom the investments were left, predeceased Janya, and Janya did not reside in the “home” bequeathed to Mary Brown in paragraph 3. At the time of her death, she lived in Carmel, California. After her sister’s death and her move to Carmel, Janya did not rewrite her will. Appellant’s argument is that, as to the investments and the home, Janya died intestate and that under the rules of intestate succession, she is entitled, pursuant to A.R.S. § 14-2101 et seq., to inherit Janya’s property with the exception of the netsukes mentioned in paragraph 7 of the will. Citing In re Estate of Barnes, 63 Cal.2d 580, 47 Cal.Rptr. 480, 407 P.2d 656 (1965), appellant argues that a disinheritance clause cannot operate to prevent an heir-at-law from taking under the statutory rules of inheritance when the dece[193]*193dent has died intestate as to any of her property. Contending that the will does not contain a residuary clause nor a power of appointment, appellant relies on Barnes to claim that she should inherit. Because we find that the will does contain a general power of appointment, Barnes is inapposite.

Where, as here, the material facts are “for the most part undisputed [the appellate court’s] role is to determine whether the trial court correctly applied the substantive law to these facts.” Miller v. Westcor Ltd. Partnership, 171 Ariz. 387, 390, 831 P.2d 386, 389 (App.1991).

The paramount consideration in construing a will is to determine and effectuate the intent of the testator. In re Trust Estate of Wills, 8 Ariz.App. 591, 594, 448 P.2d 435,438 (1968). Wills are to be liberally construed to effectuate the testator’s intent, including holographic wills like Janya’s. Newhall v. McGill, 69 Ariz. 259, 266, 212 P.2d 764, 769 (1949) (holographic will made by nonlawyer should be liberally construed); In re Harber’s Estate, 99 Ariz. 323, 326, 409 P.2d 31, 33 (1965). All words in a will are presumed to have meaning. Pass v. Stephens, 22 Ariz. 461, 466, 198 Pac. 712, 714 (1921). The language of the will is not to be ignored or treated as surplusage if some other conclusion is reasonably possible. In re Rowland’s Estate, 73 Ariz. 337, 342, 241 P.2d 781, 784 (1952). In ascertaining the testator’s intent, the will as a whole and the circumstances under which the will was executed should be considered. Newhall, supra. Thus, if one provision of a will is subject to differing interpretations, the court may consider other will provisions and the overall plan of distribution to ascertain the meaning of the disputed provision. In re Estate of Gardiner, 5 Ariz .App. 239, 240-41, 425 P.2d 427, 428-29 (1967).

In construing a will, the courts apply a presumption of testacy over intestacy. In re Estate of Vermeersch, 109 Ariz. 125, 127, 506 P.2d 256, 258 (1973). When two constructions of a will are possible, the one upholding testacy is favored. Newhall, supra The Arizona Supreme Court has explained this presumption as follows:

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Bluebook (online)
883 P.2d 427, 180 Ariz. 190, 155 Ariz. Adv. Rep. 15, 1993 Ariz. App. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feitler-v-lachance-arizctapp-1993.