Day v. Wiswall

• Decision Date: 28 January 1970
• Docket Number: CA-CIV,No. 2,2
• Citation: 11 Ariz.App. 306,464 P.2d 626
• Parties: Eva Greene DAY, Appellant, v. George A. WISWALL, as Executor of the Estate of Mary Greene Wiswall, aka Mary G. Wiswall, deceased, William Cornell Greene, Florence Louise Greene Sharp, Clarence Kirk Greene, as Executor, as Trustee, and in his individual right, and Charles Harrison Greene, as Executor, and in his individual right, Appellees. 669.
• Court: Arizona Court of Appeals

Page 626

464 P.2d 626

11 Ariz.App. 306

Eva Greene DAY, Appellant, v. George A. WISWALL, as Executor of the Estate of Mary Greene Wiswall, aka Mary G. Wiswall, deceased, William Cornell Greene, Florence Louise Greene Sharp, Clarence Kirk Greene, as Executor, as Trustee, and in his individual right, and Charles Harrison Greene, as Executor, and in his individual right, Appellees.

No. 2 CA-CIV 669.

Court of Appeals of Arizona, Division 2.

Jan. 28, 1970.

Rehearing Denied April 1, 1970.

Review Granted April 28, 1970.

Fennemore, Craig, von Ammon & Udall, by John J. O'Connor, III, and Robert P. Robinson, Phoenix, for appellant.

Gentry, McNulty, Toci & Borowiec, by James S. McNulty, Jr., Thomas A. Thode and Philip E. Toci, Bisbee, Favour & Quail, by Keith F. Quail and John M. Favour, Prescott, DeConcini & McDonald, by John R. McDonald and J. Wm. Brammer, Jr., Tucson, Polley & Talmadge, by Wesley E. Polley, Bisbee, for appellees.

HOWARD, Chief Judge.

Appellant contends that the trial judge wrongfully dismissed her complaint against one defendant and granted summary judgment to others in her suit to enforce a California judgment.

Mary Greene Wiswall died in 1955. She left extensive property, and administration proceedings were eventually commenced in Arizona, California, and Sonora in the Republic of Mexico. Some question appears as to whether the domiciliary administration was in Mexico or in Cochise County, Arizona, but it is clear that it was not in California. Appellant, Eva Greene Day, is the daughter of the late Mrs. Wiswall's first husband, long deceased, by the latter's first wife. Mrs. Wiswall left a will in which she bequeathed $2,500.00 to appellant and disposed of the residue and great bulk of her estate to her own six natural children, or, after life income trusts, to their children. The Arizona executor of Mrs. Wiswall's will, George A. Wiswall, and four other objects of Mrs. Wiswall's bounty are the appellees here.

Shortly after Mrs. Wiswall died, appellant filed a claim against the Arizona estate to recover certain properties asserted to be hers or held for her benefit, or their value in the amount of $2,500,000.00. When the claim was denied, appellant commenced suit in the Superior Court of Cochise County to have certain estate property declared to be held under a constructive trust for her benefit. She subsequently commenced a similar suit in California against most of the beneficiaries of the will and the three executors appointed in the California probate proceedings, one of which was the Arizona executor, George A. Wiswall. All of the appellees here were defendants in the California suit, and they appeared and contested appellant's claims. George A. Wiswall was not sued in his representative capacity. Appellant was denied recovery on the two theories she asserted in the California court which were identical to those advanced also without success in Arizona. See Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217 (1963). Appellant prevailed, however, on a third theory which was advanced only in the California suit i.e., that her stepmother had made a contract with her father before his death in 1915 to provide for appellant in her will as one of her own children, share and share alike.

The judgment in appellant's favor was affirmed by the Supreme Court of California in Day v. Greene, 59 Cal.2d 404, 29 Cal.Rptr. 785, 380 P.2d 385, 94 A.L.R.2d 802 (1963). The terms of the judgment are, in pertinent part as follows:

'IT IS ORDERED, ADJUDGED AND DECREED that plaintiff Eva Greene Day at the death of Mary Proctor Green Wiswall on November 27, 1955, became, thereafter was, and now is, the owner of and entitled to a one-seventh undivided interest in the entire residual estate of said Mary Proctor Greene Wiswall, deceased, of whatsoever nature and wheresoever situated, including moneys and properties:

(1) In the Matter of the Estate of Mary Greene Wiswall, aka Mary G. Wiswall, Deceased, No. 7243, in the Superior Court of the State of Arizona, in and for the County of Cochise;

(2) In the Matter of the Estate of Mary Greene Wiswall, also known as Mary G. Wiswall, Deceased, No. 373,076, in the Superior Court of the State of California, in and for the County of Los Angeles;

(3) In the Probate Proceedings involving the Estate of Mrs. Mary G Wiswall, or Mary Greene Wiswall, including files numbered 126/58, 95/58 and 7/56, in the Court of First Instance of the Judicial District of Cananea, Sonora, Republic of Mexico; and

(4) In any other estates and in any other properties of said Mary Proctor Greene Wiswall, deceased, of whatsoever nature and wheresoever situated.

That plaintiff's aforesaid one-seventh undivided interest in the entire residual estate of Mary Proctor Greene Wiswall at the date of the death of decedent on November 27, 1955, as aforesaid, became impressed with a trust in favor of plaintiff, and any title or possession of said interest thereafter by any of the defendants herein was, is and shall be that of a trustee for the benefit of plaintiff herein.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff Eva Greene Day have and recover judgment against defendants Frank Townsend Greene, Florence Louise Greene Sharp, Clarence Kirk Greene, Charles Harrison Greene, Mary Virginia Greene Sturdivant Miller and William Cornell Greene, individually, and against Clarence Kirk Greene, Charles Harrison Greene, George A. Wiswall and Leo B. Ward, as executors and trustees, as follows:

1. For one-seventh of the residual estate of Mary Proctor Greene Wiswall, Deceased, including the moneys and properties heretofore described, which each of said respective defendants has received, or will receive, or become or will become entitled to receive, individually, or as executor, or as testatmentary trustee, under the terms of the will of Mary Proctor Greene Wiswall, deceased, of November 10, 1954, or by reason of her death on November 27, 1955.

2. That defendants, and each of them, shall forthwith transfer and deliver to plaintiff one-seventh of all moneys and properties received to date by each of said respective defendants, individually, or as testamentary trustee under the terms of the will of said Mary Proctor Greene Wiswall of November 10, 1954, or by reason of her death, together with interest thereon at the rate of 7% Per annum on said moneys and on the reasonable value of said properties from the date of this Judgment until transferred and delivered to plaintiff.

3. That in due and regular course of administration the defendant executors and testamentary trustees herein shall distribute directly to plaintiff Eva Greene Day one-seventh of the residue of all moneys and properties of the estate of Mary Proctor Greene Wiswall, deceased, as of the date of her death on November 27, 1955, including all those heretofore particularly mentioned, not theretofore transferred and delivered to plaintiff.

4. That the defendants herein, and each of them, shall promptly transfer and deliver to plaintiff upon receipt thereof, one-seventh of all other and further moneys and properties in addition to those theretofore transferred and delivered or distributed to plaintiff, received by said respective defendants individually or as testamentary trustee under the terms of the will of said Mary Proctor Greene Wiswall of November 10, 1954, or by reason of her death.

5. (Deleted by signing Judge.)

6. (Deleted by signing Judge.)

7. This Court shall, and hereby does retain jurisdiction of the within numbered case 692,673 to make such other and further orders and decrees as it may deem necessary or proper to carry out the provisions of this judgment.'

The judgment was rendered on February 3, 1961 and was affirmed by the Supreme Court of California on April 11, 1963 with rehearing denied on May 8, 1963. On February 3, 1966 appellant filed her complaint in the instant case in the Superior Court of Cochise County. Final distribution of the Wiswall estate, which consisted of various kinds of property as well as money, had not at that time been accomplished in the Probate Court of the same county. The complaint was appropriately subtitled, in accordance with the substance of its allegations and prayer, an 'Action to Enforce Foreign Judgment.' No attempt was made to state a cause of action on the claim underlying the California judgment, as opposed to the judgment itself. All of the appellees joined in a motion made by George A. Wiswall, as executor, to dismiss the complaint as to him for failure to state a claim upon which relief could be granted. All of the remaining defendants who were served with process, the appellees here, moved for summary judgment. All of the defendants' motions were granted.

Appellant's basic position is that the California judgment is entitled to full faith and credit in Arizona and enforcement according to its terms. Appellees' answers and motions raised a number of defenses to enforcement, including the lack of a final judgment for the payment of money, the ineffectiveness of the California judgment to bind the Arizona executors in their representative capacities in this state, and the statute of limitations.

Although the decree in this case does not necessarily require the defendants to convey land or an interest in land situated in the State of Arizona, we will discuss this case as if the decree from California in fact did require such a conveyance since a holding requiring full faith and credit to such a decree would a fortiori apply to personalty.

Article IV, Section 1 of the Constitution of the United States provides:

'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'

The rationale of this constitutional provision is aptly expressed in Goodrich, Conflict of Laws § 208, at 391 (4th ed. 1964):

'* * * The judgment has determined that, under the law of the state where it was rendered, the plaintiff has or has not...