O'BRIEN v. Superior Court in and for Maricopa County

457 P.2d 265, 104 Ariz. 588, 1969 Ariz. LEXIS 341

• Court: Arizona Supreme Court
• Decided: July 16, 1969
• Docket: 9288
• Status: Published

Opinions

UDALL, Chief Justice:

Caroline B. O’Brien died on the 13th day of February, 1964 in Tucson, Arizona. She was survived by four children: two natural, Joseph T. O’Brien, hereinafter referred to as petitioner, and Suzanne Bates; and two adopted, Robert George O’Brien and Thomas Henry O’Brien, both minors. Decedent’s estate is valued in excess of $800,000.00.

Decedent left a will which was drafted by petitioner. Under the will the bulk of decedent’s estate passed to the two natura' children, with provision that the adopted children receive only the j ewelry. The will was contested, and after a six week trial the jury found it to have been the product of the undue influence of petitioner. The will was denied probate, leaving decedent intestate.

On March 3, 1967 petitioner filed a Petition for Letters of Administration. On the same date the Valley National Bank of Arizona, acting as the nominee of William G. Pearson, Jr., Guardian ad litem of the two adopted boys, also filed a Petition for Letters of Administration. On the day appointed for the hearing William Pearson filed objections to petitioner’s petition “on the grounds that the applicant is not competent for appointment as Administrator of this estate.”

The hearing was conducted on the petitions and the court entered an order appointing the bank as Administrator of the Estate of Caroline O’Brien. Petitioner was denied the appointment, and on April 27, 1967 applied to this court for an extraordinary writ upon the grounds that the trial court had exceeded its jurisdiction or was without jurisdiction in the premises. We remanded the case to the trial court for further proceedings including the making of findings of fact and conclusions of law and entry of the final order. (See O’Brien v. Superior Court et al., 102 Ariz. 570, 435 P.2d 44.)

After remand the court conducted a hearing in keeping with the order of this court and, at the conclusion of the hearing, made the following findings of fact and conclusions of law:

FINDINGS OF FACT

“6. JOSEPH T. O’BRIEN has exhibited want of care and foresight in the expenditure of funds and the management of property in that he has spent sums disproportionate to his assets, income and earning capacity and he has been improvident in the management of his personal, financial and business affairs.

“7. JOSEPH T. O’BRIEN exhibits lack of business or management ability in that he is unable to account for major expenditures made or authorized by him in connection with the contest of the will of his mother CAROLINE BRANDT O’BRIEN.

“8. The testimony, conduct and demean- or of JOSEPH T. O’BRIEN on the witness stand is such as to discredit him and render him unworthy of belief.

“9. JOSEPH T. O’BRIEN unlawfully influenced his mother CAROLINE BRANDT O’BRIEN to execute a will excluding his adoptive brothers ROBERT GEORGE O’BRIEN and THOMAS HENRY O’BRIEN from any substantial share in the estate of CAROLINE BRANDT O’BRIEN and such action on the part of JOSEPH T. O’BRIEN would have cost the excluded brothers sums of money between $300,000 to $400,000.

‘TO. JOSEPH T. O’BRIEN in the conduct of his affairs as demonstrated by the evidence has displayed a lack of common sense and ordinary foresight.

“11. JOSEPH T. O’BRIEN by his declared intention to act as administrator without benefit of counsel exhibits a degree of rashness and improvidence not commensurate with the proper conduct of a probate proceeding involving serious questions of Federal and State taxation concerning three states and one Federal jurisdiction.

“12. The record of JOSEPH T. O’BRIEN while serving as guardian of the persons and the estates of 1 ROBERT GEORGE O’BRIEN and THOMAS HENRY O’BRIEN in failing to file proper accountings and reports until required to do so by the Court demonstrates a want of care and foresight in the management of property.

“13. The actions of JOSEPH T. O’BRIEN as guardian of the persons and the estates of ROBERT GEORGE O’BRIEN and TPIOMAS HENRY O’BRIEN in connection with the protection of the possible interest of the adoptive brothers ROBERT GEORGE O’BRIEN and THOMAS HENRY O’BRIEN in the trust created by the grandfather of JOSEPH T. O’BRIEN exhibits a lack of moral principle and character.

“Based upon the foregoing findings, the Court concludes:

I

“JOSEPH T. O’BRIEN is incompetent to serve and execute the duties of the trust as administrator of the deceased, CAROLINE B. O’BRIEN, by reason of improvidence, want of understanding and integrity.”

t’fi $1 ‡ * sji *

III

“It is in the best interest of all parties interested in the estate of the deceased that the VALLEY NATIONAL BANK OF ARIZONA, a national banking association, be appointed as administrator of the estate of the deceased, CAROLINE B. O’BRIEN, * * * ”

Petitioner filed with this court an application for Writ of Certiorari; Mandamus, ■or Prohibition. We granted certiorari.

Petitioner’s argument can be summarized as follows:

1. As the son of the decedent, petitioner is entitled to a preference for appointment as administrator under the order of priority ■set forth in A.R.S. § 14-417.

2. There is a presumption of competency operating in favor of a petitioner for Letters of Administration which may only be ■overturned by clear and convincing evidence as to his incompetency.

3. The evidence presented at trial fails to support the trial court’s finding that petitioner is incompetent to administer his mother’s estate.

In this state the grounds upon which a ■court may refuse letters of administration are statutory. A.R.S. § 14-418 provides:

“A person is not competent to serve or to be appointed as administrator who is:

* * * Hi * *

“4. Adjudged by the court to be incompetent to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity.”

The trial court specifically found petitioner to be incompetent by reason of “improvidence, want of understanding and integrity.”

With regard to the specific traits of character, Bancroft Probate Practice provides:

“§ 232. Improvidence and Want of Integrity or Understanding. ‘Improvidence,’ as a disqualifying ground, is defined to be that want of care or foresight in the management of property which would be likely to render an estate liable to be lost or diminished in value. The determination of its existence in the particular applicant is a question of fact. * * *. ‘Integrity,’ on the other hand, means soundness of moral principle and character as shown by one’s dealings with others, and is used as a synonym for probity, honesty, and uprightness in business relations.”

“Proof of want of integrity should be clear and convincing. * * *.

“ ‘Want of understanding refers to want of common intelligence, not to lack of education or comprehension of legal affairs, or want of instruction as to the state constitution, or lack of ability to read or speak English.’ ” 2 Bancroft’s Probate Practice, 2d Edition, § 232, pp. 10 & 11.

It is conceded by respondent that the issue of want of understanding is not present here. We will therefore confine our discussion to the questions of petitioner’s improvidence and lack of integrity.

Improvidence

We have reviewed the record and are of the opinion that there was no showing that in the hands of petitioner the estate would be liable to loss or diminution in value. At most the evidence demonstrated that petitioner has a poor memory, spends more money than is prudent, is anxious for his inheritance and is not fond of his adoptive brothers. The bank may be more qualified than petitioner to handle the complex problems which may arise in the administration of this estate but the law does not dictate that the most qualified will be selected. On the contrary, A.R.S. § 14—417 sets out the order of persons to whom the administration shall be granted and under that statute petitioner is preferred over the bank.

Lack of Integrity

We come to the question of petitioner’s integrity. Our attention naturally focuses upon the fact that petitioner unduly influenced his mother’s will. Since the fact is undisputed the only question remaining is whether such conduct evidences a lack of integrity as contemplated by A.R.S. § 14-418.

Respondent has called to our attention several decisions in other jurisdictions where letters of administration have been denied under circumstances similar to those we are here dealing with. In the case of In Re Sperrle’s Estate, 47 Misc.2d 1084, 264 N.Y.S.2d 93 (1965) the decedent’s son was named as executor in the will. Evidence showed that he attempted to alter the will to give himself a larger share. The court held that the attempt to alter showed sufficient dishonesty to disqualify him as executor and said:

“The duties of executor are too important to be entrusted to a person, who, even in the absence of personal gain, seeks to frustrate the intentions of the Testatrix by attempting to alter her will.”

The son of the decedent was refused letters on ground of want of integrity in In re Graff’s Estate, 119 Mont. 311, 174 P.2d 216 (1946). In that case the evidence showed that the son claimed certain property as his own which was part of the estate. There was a serious question as to the honesty of the claim. The Washington court expressed its views on the subject in In re Banks’ Estate, 56 Wash.2d 139, 351 P.2d 531 (1960), where it said:

“In this regard, the trial court found, upon conflicting evidence, that appellant ‘wilfully and intentionally destroj’ed the foregoing Will of Bessie Banks by burning it for the purpose of claiming the entire estate of his deceased spouse.’ On the basis of this factual determination, the trial court did not err in refusing to appoint the appellant as executor.”

See also In re McFarlane, 10 Utah 2d 217, 350 P.2d 631 (1960), where an attorney was disbarred for his conduct in unduly influencing a client to execute a will making the attorney a major beneficiary of her estate.

This court subscribes to the rule that a person unduly influences a testator or testatrix in executing a will when that person through his power over the mind of the testator or testatrix makes the latter’s desires conform to his own, thereby “overmastering the volition” of the testator or testatrix. In re Estate of McCauley, 101 Ariz. 8, 415 P.2d 431 (1966).

“Undue Influence” infers an unlawful influence. Hinshaw v. Hinshaw, 134 Ind.App. 22, 182 N.E.2d 805 (1962). In Parker v. Parker, 237 Ark. 942, 377 S.W.2d 160 (1964), the following rule was laid down:

a t ‡ * * influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.’ ”

See also, In Re Phillip’s Estate, 15 Wis.2d 226, 112 N.W.2d 591 (1961), where it was said:

'“A disposition to unduly influence a testatrix means something more than a mere desire to obtain a share of an estate. It implies a willingness to do something wrong or unfair. * *

Unfortunately we do not have the record of the will contest before us and cannot take judicial notice of specific facts which surrounded the execution of the will. We do know, however, that petitioner was a licensed attorney, that he drafted the will himself without aid of other legal counsel, and that the will was drafted shortly before decedent’s death. Decedent had the right to believe she could rely upon the honor and good judgment of petitioner to provide for disposition of her property according to her desires. Petitioner, however, took advantage of the trust imposed in him and substituted his desires for hers. The result was an instrument which for all practical purposes disinherited decedent’s two adopted sons, depriving them of a sum between $300,000 and $400,000, and gave their share to petitioner and his sister. We are of the opinion that petitioner has demonstrated that lack of integrity contemplated by A.R. S. § 14-418. We uphold the finding and conclusion of the trial court that petitioner was incompetent by want of integrity to administer decedent’s estate.

In his closing memorandum petitioner makes reference to the fact that on the same day decedent’s will was executed an instrument revoking all prior wills was executed. Both instruments were drafted by petitioner. At the conclusion of the will contest the jury returned two verdicts: (1) that the will was procured by the undue influence of petitioner, and (2) that the revocation instrument was not procured by the undue influence of petitioner. Petitioner claims in his momorandum that the verdicts are inconsistent, thus rendering the verdict invalidating the will of doubtful credibility, No legal or factual argument is offered to support petitioner’s conclusion that the verdicts are inconsistent.

In order to determine whether there were inconsistent verdicts we would have to examine the provisions of the will which was denied validity by the jury as well as the provisions of the prior will or wills which were revoked by the revocation instrument. Neither the will or revocation instrument were made a part of the record in this matter and petitioner has not informed us of their content. To conclude that the jury arrived at inconsistent verdicts without inspecting the documents would be at best speculative. Circumstances may well have-existed which would make it apparent that decedent clearly intended to revoke her pri- or will or wills. The prior document may have been drafted before the adoption of her two youngest sons or it may have failed to adequately distribute her estate.

The record is clear that the jury determined the petitioner unduly influenced his mother to draft a will making only token provisions for her two adopted sons. This-fact, together with other facts developed in the case establishes a firm basis for the verdict reached by the jury.

For the foregoing reasons the judgment below is affirmed.

LOCKWOOD, V. C. J., and MELVYN T. SHELLEY, Judge of Superior Court, Navajo County, concur.

NOTE: Justice JACK D. H. HAYS having announced his disqualification, the Honorable MELVYN T. SHELLEY, Judge of the Superior Court of Navajo County, State of Arizona, was called to sit in his stead.