TO:

Professor Kennedy

FROM:

Lane Kowitz

RE:

Dixon v. Cary
Probate of holographic will

DATE:

September 12, 2010

INTRODUCTION:
The purpose for this memorandum is to discuss the research that I performed regarding the
probate of the holographic will of Thomas Dixon
FACTS:
Before he died, Thomas Dixon wrote out half of his will by hand. The second half was
typewritten by the next-door neighbor, Edgar Mae. Mr. Dixon signed the will, but no witnesses
signed it. There is a self-proving affidavit. We represent Holly Dixon, the widow of Thomas
Dixon. Mary Cary, the sister of Thomas Dixon is the personal representative of his estate. Ms.
Dixon wishes to challenge the probate of Mr. Dixons holographic will.
ISSUES:
In accordance with Tex. Prob. Code Ann. 59, (Requisites Of A Will) is a holographic will
admissible to probate if it is not wholly in the handwriting of the testator, is not witnessed, but
does have an self-proving affidavit?
Case law: Dean v. Dickey, 225 S.W.2d 999 (Civ. App. Tex. 1949)
ANALYSIS:
The rule of law governing holographic wills in Tex. Prob. Code Ann. 59 (Requisites Of A Will)
requires that this type of will be wholly in the handwriting of the testator. The lack of
witnesses signatures may be overcome by the use of a self-proving affidavit, but the fact
remains that the will itself is not wholly in the handwriting of the testator.
In the case of Dean v. Dickey, 225 S.W.2d 999 (Civ. App. Tex. 1949), the court held that a
holographic will must be entirely handwritten by the testator in order to be entered into probate.
Mr. Dixons will is not entirely in his own handwriting, therefore it does not meet the standards
set by the law or the court of what constitutes a holographic will. It is not admissible to probate.
The opposing side may argue that the lack of witnesses is offset by the self-proving affidavit.
However, this argument is irrelevant because the will does not meet the standards of a
holographic will; therefore the self-proving affidavit is not applicable. Because there is a portion
of this will that was not in the actual testators own handwriting, the signature of the witnesses
cannot be omitted.

CONCLUSION:
Mr. Dixons will is partially handwritten in his own handwriting and partially typewritten by
Edgar Mae. There are no witness signatures. There is a self-proving affidavit. However, this will
does not meet the legal standards for a holographic will in the State of Texas (Tex. Prob. Code
Ann. 59, (Requisites Of A Will)). It is highly unlikely to be admissible to probate. A similar
case (Case law: Dean v. Dickey, 225 S.W.2d 999 (Civ. App. Tex. 1949)) found that a partially
handwritten, partially typed, un-witnessed will was not admissible to probate, even with the selfproving affidavit.

TO:
FROM:

Professor Kennedy
Lane Kowitz

RE:

Eldridge v. Eldridge
Modification of child support

DATE:

September 4, 2010

INTRODUCTION:
The purpose for this memorandum is to discuss the research that I performed regarding
modification of child support payments in this case.
FACTS:
The Eldridges were divorced in 2005. Mrs. Eldridge was awarded custody of their two minor
children and Mr. Eldridge was ordered to make monthly child support payments of $700. Mr.
Eldridge was unemployed between January 2006 and October 2006, and did not make child
support payments during that time. Mrs. Eldridge filed a court motion that entered the divorce
decree, seeking an order forcing Mr. Eldridge to pay for the months he had missed, an amount
totaling $7,000. Mr. Eldridge countered with a motion to modify his child support obligation
during the months he had been unemployed. The court ordered Mr. Eldridge to pay $3,500,
excusing him from the remaining $3,500. Mrs. Eldridges trial attorney told her there is no basis
for an appeal. We now represent Mrs. Eldridge.
ISSUES:
Under Ind. Code 31-2-11-12, and Indiana case law, Cardwell v. Gwaltney, 556 N.E.2d 953
(Ind. Ct. App. 1990), is a court allowed to retroactively modify any portion of an obligators duty
to pay delinquent support payments if the obligator has become unemployed?
ANALYSIS:
Ind. Code 31-2-11-12 provides that a court may not retroactively modify and obligors duty to
pay a delinquent support payment. The exception is A court with jurisdiction over a support
order may modify an obligors duty to pay a support payment that becomes due: (1) after notice
of a petition to modify the support order has been given to the obligeeand (2) Before a final
order concerning the petition for modification is entered. Commentary on the Indiana Child
Support Guidelines states that an obligee with no means to pay cannot be held in contempt, but
the obligation accrues and serves as a reimbursement to the custodial parent, or, more likely, to
the welfare department if he later acquires the ability to meet his obligation.
In the case of Cardwell v. Gwaltney, the court held that the trial court erred in retroactively
excusing Gwaltneys support obligation for the time he was incarcerated and unable to pay.
Cardwell v. Gwaltney cites Biedron v. Biedron (1958) where support installments had accrued,
and which stated that the court was without power to reduce, annul, or vacate such orders
retrospectively.

Applied to this case, Mr. Eldridges payments accrued during the time he was unemployed and
unable to make child support payments. Changes may be made to payments due in the future, not
to the payments he missed in the past.
He could have requested an alteration in the support payments when he became unemployed
based upon his lack of income. That would have come under the exception of notice of a
petition to modify the support order has been given to the obligee No such petition was made.
He let the payments lapse instead.
CONCLUSION:
I.C. 31-2-11-12 states that the court cannot retroactively modify an obligors duty to pay
delinquent support payments. Case law such as Cardwell v. Gwaltney show that the court does
not uphold modifying delinquent support payments unless there was a pre-existing petition to
modify those payments. In this case, there was no petition made prior to the payments going into
delinquency.

TO:

Professor Kennedy

FROM:

Lane Kowitz

RE:

Commonwealth v. Jones
Assault by means of a dangerous weapon--lightning

DATE:

September 4, 2010

INTRODUCTION:
The purpose for this memorandum is to discuss the research that I performed regarding the pro
bono case we have been assigned regarding domestic violence and ultimately attempted murder
by lightning rod.
FACTS:
We have been appointed by the court to represent Sedrick Jones in this case. Mr. Jones is charged
with attempted murder, battery, false imprisonment, and assault with a deadly weapon. Mr. Jones
has had a relationship with Elizabeth Steward for 10 years. They currently live in a seaside
cottage on the Atlantic Ocean. On April 5, Mr. Jones had been drinking. An argument broke out
between Mr. Jones and Ms. Steward. Ms. Steward alleges that Mr. Jones tied her to a lightning
rod during a violent electrical storm, and that he threatened her by saying Ill fix you, youre
gonna fry. This is the basis of the charge of assault with a dangerous weapon, claiming that the
weapon was lightning. Lightning never struck the pole.
ISSUES:
According to G.L. c.265, 15A (Assault and Battery with Dangerous Weapon), can lightning in
its natural state be considered a dangerous weapon in the charges of assault with a dangerous
weapon?
ANALYSIS:
The law governing assault with a dangerous weapon is G.L. c.265, 15A, which states that
Whoever commits assault and battery upon another by means of a dangerous weapon shall be
punished. The question is whether lightning in its natural state can be considered a dangerous
weapon. In the case of Commonwealth v. Shea, it was argued that the ocean can be and often is
dangerous, it cannot be regarded in its natural state as a weapon within the meaning of 15A.
The reasoning behind this comes from another case, Commonwealth v. Farrell 322 Mass. 606,
614-615, 78 N.E.2d. 697 (1948). A dangerous weapon was defined as any instrument or
instrumentality so constructed or used as to be likely to produce death or great bodily harm.
Commonwealth v. Appleby, 380 Mass at 308, 402 N.E.2d. 1051 concluded that assault and
battery under 15A required the element of assault, and that there be a touching, however
slightthat the touch be by means of the weapon and that the battery by accomplished by the
use of an inherently dangerous weapon, or by use of some other object as a weapon, with the
intent to use that object in a dangerous or potentially dangerous fashion.

The court found that the ocean, not being under human control, could not be considered an object
or instrumentality which could be used as a dangerous weapon. Lightening is a similar naturally
occurring force of nature. More to the point, lightning never touched the victim, therefore the
requirement of touch by means of a weapon is not met.
The opposition could argue that the lighting rod is used to draw lightning and therefore increase
the possibility of a lightning strike, and indeed, that seemed to be the intent behind the alleged
words of the defendant. However, if that was the case, the prosecution should claim the lightning
rod was the dangerous weapon, not the lightning. Lightning never touched the victim, another
requisite put forth by Commonwealth v. Appleby. The lightning rod was in contact with the
victim. The charges against the defendant could be assault and battery by lightning rod, but not
lightning.
CONCLUSION:
G.L. c.265, 15A states Whoever commits assault and battery upon another by means of a
dangerous weapon shall be punished. Case law defines dangerous weapons as any
instrument or instrumentality so constructed or used as to be likely to produce death or great
bodily harm. Lightning is a natural force that cannot be controlled as a weapon. More
specifically, case law (Commonwealth v. Appleby) requires that the weapon must actually touch
the victim in some way. Lightning never touched the victim in this case.

TO:

Professor Kennedy

FROM:

Lane Kowitz

RE:

United States v. Canter

Armed bank robbery with a dangerous weapon

DATE:

September 4, 2010

INTRODUCTION:
The purpose for this memorandum is to discuss the research that I performed regarding the pro
bono case representing Eldon Cantor, charged with one count of armed bank robbery.
FACTS:
We have been appointed by the court to represent Eldon Cantor. On January 5, 2010, Mr. Cantor
entered the First State Bank. He approached a teller and pulled out a wooden replica of a 9mm
Beretta handgun. This was crudely carved and stained with dark walnut wood stain to make it
look black. A hole was drilled in the end. The teller believed it was a real weapon. The teller at
the next window later stated she was fairly certain it was a fake. No one else noticed whether the
wooden replica was real.
ISSUES:
Under the conditions set forth by 18 U.S.C. 2112(a) and 18 U.S.C. 2112(d) (Bank robbery and
incidental crimes), is there sufficient evidence to support the charge of bank robbery with a
dangerous weapon if the weapon turns out to be a fake?
Case law: United States v. Martinez-Jimenez, 864 F2d. 664 (9th Circ. 1989)
ANALYSIS:
The law governing Bank robbery and incidental crimes, 18 U.S.C. 2112(a) and 18 U.S.C.
2112(d), as well as the case United States v. Martinez-Jimenez, 864 F2d. 664 (9th Circ. 1989),
includes a great deal of debate over the use of fake weapons. In fact, 2112(d) came into being in
response to case law dealing with unloaded, nonfunctioning and toy weapons. It is not concerned
with whether the weapon is genuine, or how it is displayed, or what the people confronted with it
believed it to be. The reasoning behind this is a fake weapon creates some of the same risks
during the commission of a crime as a real one, i.e., creating apprehension, requiring law
enforcement to consider how to respond to a life-threatening situation, and increasing the
possibility of the use of deadly force.
Mr. Canters fake gun satisfies the statutory meaning of a dangerous weapon or device under the
statutes and case law.
CONCLUSION:
There is sufficient argument under 18 U.S.C. 2112(a) and 18 U.S.C. 2112(d), and in United
States v. Martinez-Jimenez, 864 F2d. 664 (9th Circ. 1989), to support the charge of bank robbery

against Mr. Canter. The display of a fake, toy, unloaded , or otherwise non-functioning weapon
during the course of a bank robbery still meets the standard of dangerous weapon.