(dissenting).
I am unable to agree with the conclusions reached by the majority. The basis of my disagreement requires a restatement and examination of the meager facts as they were known to or should have been known to the court below.
Caroline B. O’Brien died on the 13th day of February, 1964, survived by four children, two natural, Joseph T. O’Brien, petitioner, and Suzanne Bates, and two adopted, Robert George and Thomas Henry, both minors. She left a Last Will and Testament dated January 5, 1964, which had been drawn for her by petitioner, an attorney duly licensed to practice in Arizona. The will left the bulk of the decedent’s property to petitioner and his natural sister, Suzanne Bates. In it petitioner was named as the executor. On the same day that decedent executed the will in question, by a separate instrument also drawn for her by petitioner, she executed a revocation of all previous wills.
*594The will was contested on behalf of the minor adopted children. The contest was resisted by Joseph T. O’Brien, petitioner herein, as the named executor in the will. After a six week trial, the jury returned two verdicts. ■ 1. That the execution of the revocation of all previous wills was not procured by O’Brien’s undue influence, and 2. That the execution of the will signed on the same day was procured by the undue influence of O’Brien.
It is, of course, the common practice in drafting wills to include a clause specifically revoking all previous wills. If the revocation clause had been inserted in the Caroline B. O’Brien will, necessarily it too would have fallen by the jury’s verdict and her property would have passed by prior will. The findings of the jury that the will was procured by undue influence and that the revocation was not so procured results in decedent’s property passing to her four children equally by the law of intestate succession, share and share alike.
After the will contest was concluded, O’Brien filed a petition for Letters of Administration on the estate of his mother. This was opposed by the guardian ad litem of the two adopted children on the grounds “that the applicant is not competent for appointment as administrator of this estate.” The court below found that the “best interest of all the parties” was to appoint the Valley National Bank of Arizona as administrator of the estate. Application was made to this court for an extraordinary writ to compel the appointment of Joseph T. O’Brien. We issued an alternative writ of mandamus. This was quashed by written decision, O’Brien v. Superior Court, In and For Maricopa County, 102 Ariz. 570, 435 P.2d 44, on the grounds that there was no final judgment in the court below. Thereafter, the court below made thirteen findings of fact as to why O’Brien was not competent to act as administrator. We then granted certiorari.
As can be seen from findings #6 through #13 set forth in haec verba in the majority decision, they are more in the nature of generalized factual conclusions than a statement of the basic facts. The majority do not find that any of these purported findings have a substantial basis with the exception of finding #9. From it the majority seek to infer a want of integrity.
This finding #9 is at this point repeated because it controls the disposition of this case:
“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.”
It is obvious from the finding that the trial court was under some considerable misapprehension as to the facts in the case. First, since the estate is valued somewhat in the excess of $800,000.00 and since it now passes by law of intestate succession to the four children, natural and adopted, share and share alike, simple arithmetic indicates that the exclusion of the adopted children could not have cost them between $300,000.00 to $400,000.00, but rather something more closely approximating the sum of $200,000.00. This would be, of course, before the payment of taxes and costs of administration. Second, assuming from the jury’s verdict that O’Brien did in fact unduly influence his mother to execute a will excluding his adopted brothers, and since there is no evidence whatsoever contained in the record that her former wills did not also substantially exclude the adopted brothers, the conclusion that O’Brien’s undue influence “cost the excluded brothers sums of money” can only be the stuff from which dreams are made, pure fantasy! Third, nor was the trial judge apparently aware of Cause P58544 of the Superior Court of Maricopa County. Therein, it appears that the decedent, Caroline B. O’Brien, set up two trusts under which the *595two adopted sons are the beneficiaries. The trust res was two insurance policies on her life totaling $110,000.00. She also set up two other irrevocable trusts for their benefit which, had they been completed to maturity, would have totaled in excess of $320,000.00. The value of these irrevocable trusts as of the date of Caroline B. O’Brien’s death is not reflected in the record. In addition, the adopted children received specific bequests of the decedent’s jewelry of the estimated value of $35,000.00. [See Inventory and Appraisal in the Caroline B. O’Brien Estate.]
My difference with the majority is the legal effect which should be given to the verdict that the execution of the will was procured by undue influence. I am of the opinion that no weight should be given to it, since the verdict of no undue influence on the execution of the revocation of previous wills raises an obvious irreconcilable inconsistency. There is a wealth of authority which recognizes that inconsistent verdicts or findings which cannot be reconciled invalidate the jury’s verdicts because it is impossible to draw any certain conclusion as to the true facts of the case. Nor does there seem to be authority to the contrary, although, of course, there are cases which, while recognizing the rule, find it possible to reconcile the inconsistencies.
In Eldredge v. Miller, 78 Ariz. 140, 277 P.2d 239, this court touched briefly upon the question of whether the verdicts were inconsistent, although the basis for a new trial was the failure to give the proper instruction which might have prevented the inconsistent verdicts. We said:
“ * * * Had the jury been told that if Eldredge’s acts contributed to the accident there could be no recovery against Oltsvig on the cross-claim, the verdict might well have been in accordance with such instruction. To vitiate two verdicts because of inconsistency, they must necessarily he based on inconsistent findings of fact. The jury not having been told the legal consequences of the two verdicts might well have thought that it could find in favor of defendants Eldredge on the cross-claim, even if it found as a fact that Loren Eldredge’s negligence contributed to the damage to the Eldredge car.” 78 Ariz. at 146, 277 P.2d at 243.
The statements of the court in Alabama Highway Express, Inc. v. Luster, 51 Tenn. App. 691, 371 S.W.2d 182, are a good example of the holdings on irreconcilable verdicts.
“The obligation of every jury is summarized in the oath taken by its members to render a true verdict according to the law and the evidence. This applies whether the jury is trying one or more cases. And where it plainly appears from the verdicts returned by a jury that it has not fulfilled this obligation but acting upon considerations other than those presented in the law and the evidence has returned irreconcilably conflicting verdicts, it is the duty of the trial court to order the jury to consider further with respect to these verdicts, and if it refuses (which we doubt will ever be the case), to order a mistrial, otherwise this Court must reverse.
>ji >¡í í¡í >¡í
“That they are not reconcilable in fact appears on their face. The same jury on the same evidence has said the appealing defendants were guilty of proximate, causal negligence in the cases wherein they were defendants, but upon the same facts were not guilty of proximate, causal negligence in the cases wherein they were plaintiffs. These two conclusions are of course factually irreconcilable. The appealing defendants were either guilty of negligence which was the proximate cause of the deaths sued for or they were not. They could not in fact, he both proximately negligent and not proximately negligent.” 371 S.W.2d at 185, 186.
As stated, both the instrument of revocation and the will were prepared by the testatrix’s son, O’Brien. Both were signed by her on the same day. There is no sug*596gestión that the testatrix was of unsound mind so obviously the two instruments were executed to achieve a single result and pursuant to a common plan. The verdicts of the jury must have been returned upon considerations other than those presented in the law.
The Oklahoma Court in Burkett v. Moran [Old.], 410 P.2d 876, adopted this rule where it found an inconsistency:
“The first sentence of the verdict returned in this case constitutes a general verdict for plaintiff, determining the issues of liability and damage in plaintiff’s favor. Under the uncontradicted evidence, if defendant was liable to plaintiff at all, plaintiff was entitled to recover damages for past pain and suffering. The ‘itemized statement’ added by the jury conclusively shows that no award was made for this element of damages. The verdict is therefore inconsistent with itself and plaintiff is entitled to a new trial. Hallford v. Schumacher, Okl., 323 P.2d 989.” 410 P.2d at 878.
See also McGuire v. McGuire, 152 Kan. 237, 103 P.2d 884; Denna v. Chrysler Corp., 1 Ohio App.2d 582, 206 N.E.2d 221.
In the instant case the judge in the ■court below made neither findings nor conclusions of law which purported to reconcile the two verdicts. [The majority attempt to supply this by speculation.] The trial judge simply chose the one he preferred and ignored the other. Nor do respondents point to any facts which might form the basis for a reconciliation of the two verdicts. It should be noted that no verdict was submitted to the jury in the will contest questioning the soundness of testatrix’s mind.
The majority rely upon these cases as precedent for the conclusion of a want of integrity. In In Re Sperrle’s Will, 47 Misc.2d 1084, 264 N.Y.S.2d 93, the facts were that the decedent’s son who was named as the executor in the will attempted to alter the will to give himself a larger share. In In Re Graff’s Estate, 119 Mont. 311, 174 P.2d 216, the son claimed certain property as his own which was part of the estate. In In Re Banks’ Estate, 56 Wash.2d 139, 351 P.2d 531, in a proceeding to establish a lost will, it was shown that the named executor had burnt the will. He was denied appointment as administrator de bonis non with will annexed.
These cases clearly involve fraud and criminal acts. They are not authority for an inference of lack of integrity because of a possible undue influence.
Fraud and criminal acts involve a specific wrongful intent. This is not necessarily true where the question is undue influence. Obviously, a son can influence his mother. Children are not, however, forbidden by law from influencing their parents. Influence may even be rightfully used to procure the execution of a will. In Re Teller’s Estate, 288 Mich. 193, 284 N.W. 696. There is, of course, no appreciable line to say when influence becomes undue. But how can this court or the judge below possibly say from these inconsistent verdicts alone that O’Brien, an attorney at law qualified to practice before this court, is a man so lacking in integrity that he is disqualified from holding a responsible office of trust. To draw an inference from one verdict when the other can only support a contrary conclusion is unrealistic, whimsical and arbitrary.
For the foregoing reasons, I dissent.
McFARLAND, J., concurs in this dissent.