Estate of Jorgenson, Matter of
| Decision Date | 23 August 1988 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 766 P.2d 87,159 Ariz. 214 |
| Parties | In the Matter of the ESTATE OF Clarence S. JORGENSON, deceased. Irving R. JORGENSON, as Personal Representative of the Estate, Plaintiff-Appellee, Cross Appellant, v. Hilda J. JORGENSON, Defendant-Appellant, Cross Appellee. 9916. |
| Court | Arizona Court of Appeals |
Hilda J. Jorgenson appeals from the trial court's judgment doubling the damages that a jury awarded in favor of the personal representative of her husband's estate. The personal representative had sued her to recover property belonging to that estate. We set aside the award of double damages because there was no finding that Hilda's actions were wrongful or in bad faith.
Clarence S. Jorgenson died in 1984. He was survived by his wife, Hilda, and two children by a prior marriage. Clarence left a will which made specific bequests to Hilda and the remainder of his estate to his children. One of these children, Irving Jorgenson, applied for probate of the will and was appointed personal representative of the estate.
Irving filed a complaint against Hilda, alleging that she had wrongfully appropriated her husband's money and sold some property, both while her husband was alive and incapacitated and after his death. The complaint enumerated and described six items totaling over $17,000, including the proceeds of a certificate of deposit in the amount of $10,005.20 and money taken from a bank account in the amount of $5,600. The complaint prayed for the return of the money and, pursuant to A.R.S. § 14-3709, for double the amount wrongfully appropriated, for costs, and for other appropriate relief. Hilda answered that everything described in the complaint was joint tenancy property that had passed to her upon the death of her husband.
The matter proceeded to trial before a jury, which concluded that the $10,000 from the certificate of deposit and the $5,600 from the bank account belonged to the estate. The jury found in Hilda's favor as to the other items of property.
The trial court determined that the estate was entitled to double the damages awarded by the jury. The judge ruled:
Neither the jury instructions nor the forms of verdict provided for the doubling of damages. However, the determination of whether or not the damages should or should not be doubled under A.R.S. 14-3709 is a matter of law, not a question of fact. The jury determined all facts necessary under the statute to award double damages. Under A.R.S. 14-3709, the estate is entitled to double damages which is $15,600.00 times 2 or $31,200.00.
The trial court gave judgment accordingly.
Hilda does not contest the jury's determination that she was not entitled to the $15,600 that came from the certificate of deposit and the bank account. Her sole challenge is to the award of double damages. She argues that the statutory procedure for determining entitlement to double damages was not followed in this case and that the record does not establish facts necessary to support such an award.
The statute in question is A.R.S. § 14-3709. SUBSECTION (A)1 authorizes the personal representative to take possession of property of the estate if he feels it is necessary for purposes of administration; it also provides that a request by the personal representative for the property possessed by an heir or devisee is conclusive evidence that the possession by the person al representative is necessary for purposes of administration. It also allows the personal representative to "maintain an action to recover possession of property or to determine the title thereto."
Subsections (B), (C) and (D) deal with situations in which a person is suspected of "having concealed, embezzled, conveyed or disposed of any property of decedent, or has in his possession or has knowledge of deeds, bonds, contracts or other writings which contain evidence of or tend to disclose the right, interest or claim of decedent to any property, or the will of decedent." Subsection (B) permits the court to cite such person to appear and submit to examination. Subsection (C) allows the court to jail a person who will not submit to the order of the court. If the complaint of "concealment" is found to be substantiated, subsection (D) allows the court to order the person "to turn over the documents or disclose knowledge thereof to the personal representative." Subsection (D) further provides that the order for the disclosure is prima facie evidence of the right of the personal representative to property in an action brought for recovery thereof and that "a judgment recovered therein shall be double the value of the property, or for return of the property and damages in addition thereto equal to the value of the property."
The problem with the statute is that it is not very clear. It speaks of concealing, embezzling, conveying or disposing of property in relation to an order to turn property over to the personal representative. It then, without directly referring to any wrongful conduct, goes on to allow for double damages when a judgment is entered for the property or its value. We do not believe the legislature intended to allow double damages to be awarded in every action in which a personal representative recovers possession of property from heirs or devisees or in which he prevails in determining title to property. We believe double damages are authorized only when the defendant in an action to recover property has wrongfully concealed, embezzled, conveyed or disposed of property, and not when the defendant honestly but mistakenly believed the property belonged to him. 2
Although none of the authorities and cases on this subject construe statutes exactly like ours, their comments are instructive. The general rule is stated in 33 C.J.S., Executors and Administrators, § 170 (1942) as follows:
One who embezzles, alienates, or converts to his own use the property of decedent before the appointment of an executor or administrator is liable for double the value of the property under a statute expressly so providing, but some bad faith or wrongful conduct on the part of defendant is necessary to subject him to such penalty, and the term 'alienate' as used in the statute signifies a wrongful transfer to another.
(Emphasis added.) In dealing with an Oregon statute authorizing double damages when a person has tried to "embezzle, alienate, or in any way convert to his own use any of the property of a deceased person," the Oregon court stated in Springer v. Jenkins, 47 Or. 502, 508, 84 P. 479, 481 (1906):
[W]e are of the opinion that section 1152 does not apply to a case where the defendant acted in good faith under color of legal right, supposing he had title to the property or a right to enforce a lien thereon, though he should subsequently be unable to establish such title or right. The statute is highly penal in its consequences, and was evidently intended to punish those who might wrongfully or in bad faith interfere with, convert to their own use, or dispose of the property of a deceased person, by mulcting them in double damages; and its language should, we think, be so construed. To subject the defendant to the penalty given by the statute, it should appear that he was an intermeddler, and acted from wrong motives or in bad faith; otherwise, the executor or administrator should be satisfied with the ordinary remedies given him by law.... They [the defendants] may have been ill-advised, or may have mistaken their rights; but, until it is made to appear that they acted from wrongful motives or in bad faith, the plaintiff is not entitled to recover double...
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...require a prior court order. ¶ 23 Adina argues that the requirement of a predicate court order is inconsistent with In re Jorgenson, 159 Ariz. 214, 766 P.2d 87 (App.1988). We disagree. Jorgenson dealt with an issue different from the one we have here. In Jorgenson, the question was whether ......
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