MEMORANDUM OF LAW

To: Supervising Attorney

From: Sandra Black, Paralegal

Date: May 22, 2010

Case: Dixon v. Carey

Re: Probate of holographic will

Statement of Assignment

I have been assigned the task of determining, within the meaning of the state statue, whether Thomas Dixon’s will would be admissible for probate when there were no witnesses and only half of the will is handwritten.

Issue

Under Texas Statutory Law, Probate Code. Ann. § 59 Requisites of a Will (Vernon 1980), is there sufficient evidence to support that Thomas Dixon’s will is invalid. The Petitioner alleges that the will is contestable due to the method of preparation and signature.

Brief Answer

Qualification is highly probable. In the case of Dean v. Dickey, 225 S.W.2d 999 (Civ. App. Tex. 1949) upheld the trial court’s judgment that the will was invalid under Section 59. Holographic wills must be written wholly in the hand of the testator and signed.

Statement of Facts

Mary Cary is the Personal Representative of the Thomas Dixon estate. Ms. Cary has submitted the will for probate to the court. The first half of the will was written in Thomas Dixon’s own handwriting. The second half of the will was typewritten and completed by his neighbor, Edgar Mae. Mr. Mae stated that Mr. Dixon asked him to finish his will by typing it out because he was too physically weak to complete it himself. The will is signed by Mr. Dixon but there were no witnesses to attest to the signing. The will does include a self-proving affidavit that meets the requirements of the statute. However, the statute clearly states that a will must be entirely and

wholly written in the hand of the testator to be considered a legal and probatable holographic will.

MEMORANDUM OF LAW

To: Supervising Attorney

From: Sandra Black, Paralegal

Date: May 22, 2010

Case: Eldridge v. Eldridge

Re: Modification of Child Support

Statement of Assignment

You have asked me to prepare a memorandum on the question of whether the trial court’s ruling, which granted Mr. Eldridge’s request to modify past-due child support within the state’s statutory law when an obligor spouse is delinquent due to temporary unemployment. The second question does Mrs. Eldridge have grounds for an appeal of the trial court’s ruling.

Issue

Indiana Statutory Law: Ind. Code ž 31-2-11-12. Modification of delinquent support payments states that a court may not retroactively modify an obligor's duty to pay a delinquent support payment. A court with jurisdiction over a support order may modify an obligor's duty to pay a support payment that becomes due after notice of a petition to modify the support order has been given to the obligee before a final order concerning the petition for modification is entered.

Brief Answer

Qualification: Yes. In the case of Cardwell v. Gwaltney, 556 N.E.2d 953 (Ind. App. 1 Dist. 1990), the statute states that even in situations where the non-custodial parent has no income, the courts have routinely established a child support obligation at a minimum level. An obligor cannot be held in contempt for failure to pay support when he does not have the means to pay. However, the obligation accrues and serves to reimburse the custodial parent if the non-custodial parent later acquires the ability to meet his support obligations. He did obtain employment as an electrician.  

Statement of Facts

The Eldridges divorced in 1992 and Mrs. Eldridge was awarded custody of their two minor children. Mr. Eldridge was ordered to make child support payments of $700 per month. He lost his job in January of 1993 and was unemployed from that date through October of 1993. Mr. Eldridge did not make child support payments for the months he was unemployed. Mrs. Eldridge filed a motion with the court that entered the divorce decree in 1994 seeking an order forcing Mr. Eldridge to pay the child support payments due for the months he did not make payments. The

total amount was $7,000. Mr. Eldridge countered with a petition to modify his child support obligation. The petition requested that he be excused from paying the obligations that accrued during the ten months he was unemployed. The court ordered Mr. Eldridge to pay one-half of the amounts due, which totaled $3,500 and excused him from paying the remaining $3,500. The court stated that Mr. Eldridge did not have to pay the full amount because he was unemployed during the months the child support accrued. The attorney that represented Mrs. Eldridge, in the trial court, told her that there is no basis for an appeal of the modified court order.

MEMORANDUM OF LAW

To: Supervising Attorney

From: Sandra Black, Paralegal

Date: May 22, 2010

Case: Commonwealth v. Jones

Re: Assault with a dangerous weapon - Lightning

Statement of Assignment

I have been assigned to answer the legal question of whether lightning is a sufficient basis to support the assault by means of a dangerous weapons charge.

Issue

Under Statutory Law: G.L. c. 265 ž 15A. Assault and Battery with Dangerous Weapon. (State of Massachusetts), states: “Whoever, by means of a dangerous weapon, commits assault and battery upon another shall be punished by imprisonment in the state prison for not more than five years....”

Brief Answer

Qualification: Yes. In the case of Commonwealth v. Shea, 38 Mass. App. Ct. 7, 644 N. W. 2d 244 (1995), requires that the elements of assault are present. There must be a touching, however slight and that the touching is by means of the weapon. The battery is accomplished by use of an inherently dangerous weapon or by usage of some other object as a weapon. There must be intent to use that object in a dangerous or potentially dangerous fashion. The trial court reversed the assault and battery with a dangerous weapon conviction (the ocean).

Statement of Facts

Jones is charged with attempted murder, battery, false imprisonment, and assault with a dangerous weapon. Mr. Jones has had a stormy ten-year relationship with the victim, Elizabeth Steward. Their relationship has many instances of domestic violence. Jones was drinking and arguing with the victim. Mr. Jones tied the victim to a lightning rod attached to their home in the middle of a violent electrical storm. Jones threatened the victim by stating, "I'll fix you, you're gonna fry." Lightning did not strike the pole. This act is the basis of the assault by means of a dangerous weapon charge. The state claims that the dangerous weapon is lightning.

MEMORANDUM OF LAW

To: Supervising Attorney

From: Sandra Black, Paralegal

Date: May 22, 2010

Case: United States v. Canter

Re: Armed Robbery with the use of a Dangerous weapon

Statement of Assignment

You have asked me to prepare a memorandum on the question of whether there is sufficient evidence to support a criminal charge of armed robbery with a dangerous weapon.

Issue

Under 18 U.S.C. § 2113(a), Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or (d) Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny— Shall be fined under this title or imprisoned not more than twenty years, or both. Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

Brief Answer

Qualification: No. In the case of United States v. Martinez-Jimenez, 864 F2d 664 (9th Cir.1989), the appellate court affirmed the judgment of the district court. The court held that a robber who carries a toy gun during the commission of a bank robbery creates some of the same risks as those created by one who carries an unloaded or inoperable genuine gun.

Statement of Facts

Canter robbed the First State bank with a carved wooden replica of a 9mm Berretta handgun. The teller being robbed at the time thought the replica was real and the teller at the next window was fairly certain that the guns a fake.

Feedback From Instructor

Grade  80 out of 80.0

Comments  Good work! Formatting is great and the content is very well done. Nice job. See my one comment regarding brief answers. Otherwise, great!

C. Kennedy, Paralegal Instructor