Estate of Kerr, Matter of, No. 1

• Court: Court of Appeals of Arizona
• Writing for the Court: GRANT
• Citation: 667 P.2d 1351,137 Ariz. 25
• Docket Number: CA-CIV,No. 1
• Decision Date: 09 August 1983
• Parties: In the Matter of the ESTATE OF Louise KERR, deceased. The VALLEY NATIONAL BANK OF ARIZONA, Personal Representative-Appellee, v. Rosemary DYKSTRA, Contestant-Appellant. 5929.

Page 1351

667 P.2d 1351 137 Ariz. 25 In the Matter of the ESTATE OF Louise KERR, deceased.
The VALLEY NATIONAL BANK OF ARIZONA, Personal Representative-Appellee,
v.
Rosemary DYKSTRA, Contestant-Appellant. No. 1 CA-CIV 5929. Court of Appeals of Arizona,
Division 1, Department B. Aug. 9, 1983.

[137 Ariz. 26]

Page 1352

Daughton Feinstein & Wilson by Donald Daughton, R. Stewart Halstead, Snell & Wilmer, Phoenix, for personal representative-appellee.

Hubert E. Kelly, P.C. by Hubert E. Kelly, Phoenix, for contestant-appellant.

OPINION

GRANT, Acting Presiding Judge.

This is an appeal from a summary judgment dismissing objections to a will. We affirm the trial court.

Louise Kerr died on October 8, 1978. She had executed a will on September 27, 1948, which named as principal beneficiaries her three brothers and two sisters, all of whom survived her. On July 7, 1978, Louise Kerr set up a trust which gave a life estate in certain pieces of real property to two close friends and retained a life estate in the remainder of the trust property. The residuary of the trust was for the benefit of Arizona State University.

Along with the trust, Louise Kerr executed another will, revoking the 1948 one, and directed that her personal and household belongings be divided up equally among her brothers and sisters. The remainder of her estate was to be placed in the aforementioned trust.

Appellee, Valley National Bank, was appointed personal representative pursuant to court order, and filed the July 7, 1978, second will in the superior court. The will was admitted to informal probate on October 18, 1978.

On February 16, 1979, appellant, Rosemary Dykstra, one of Louise Kerr's sisters, filed objections to the probate of this will and the appointment of appellee as personal representative. Appellant alleged that the decedent lacked testamentary intent or capacity, that undue influence was exerted on the decedent in preparation of the will, that the will was the result of mistake on the part of decedent both as to the identity and contents of the will, that the will was the product of fraudulent misrepresentations made to the decedent, and that the signature on the will was not, in fact, that of Louise Kerr. ¹

On December 8, 1980, appellee filed a motion for summary judgment to dismiss appellant's claims against the will. The court entered a minute entry requiring a response to the motion for summary judgment by December 26, 1980. A copy of this minute entry was sent to appellant, but no response was filed. The hearing on the summary judgment motion was held as scheduled on January 15, 1981. An attorney appeared on behalf of appellant, stating that he was there only to request a continuance of the hearing and not to oppose the motion for summary judgment. The court [137 Ariz. 27]

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denied the motion for continuance and, after oral argument was heard, granted the motion for summary judgment.

On March 14, 1979, the personal representative filed a petition for formal probate of the 1978 will. On January 27, 1981, the hearing on this petition was held. No one appeared in opposition to the petition. The court heard testimony regarding the execution of the will and granted the petition for formal probate.

I. JURISDICTION

On February 17, 1981, appellant filed a timely notice of appeal from the summary judgment dismissing her claims against the will. Appellant has not appealed from the order admitting the will to formal probate. Appellee claims that because appellant did not object to and has not appealed from the admission of the will to formal probate, this appeal is moot. We must examine our jurisdiction to hear this appeal. Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 365 P.2d 208 (1961); Searles v. Haldiman, 3 Ariz.App. 294, 413 P.2d 860 (1966).

The power of the Court of Appeals to review actions of the superior court is limited by statute, specifically, A.R.S. § 12-2101 and § 12-120.21. Hanania v. City of Tucson, 123 Ariz. 37, 597 P.2d 190 (App.1979). Searles v. Haldiman. The specific provision which prescribes our jurisdiction over probate matters is A.R.S. § 12-2101(J), which states that an appeal may be taken "[f]rom a judgment, decree or order entered in any formal proceedings under title 14." (emphasis added) Title 14 covers decedents' estates, guardianships, protective proceedings and trusts. In the case of Matter of Estate of Torstenson, 125 Ariz. 373, 375, 609 P.2d 1073, 1075 (App.1980) this court held:

"Informal probate is conclusive as to all persons until superseded by an order [entered] in a formal testacy proceeding," (A.R.S. § 14-3302) (see Uniform Probate Code (U.L.A.) § 3-302). Thus an informal probate order can only be set aside by an order entered in a formal testacy proceeding. Effland, Arizona Probate Code Practice Manual, § 5-6 at page 5-10 (1973).

In interpreting A.R.S. § 12-2101(J), we are guided by language in Ivancovich v. Meier, 122 Ariz. 346, 595 P.2d 24 (1979), in which our supreme court stated that an "order" for purposes of A.R.S. § 12-2101(J) means "an order similar to a final judgment or decree entered in any formal proceedings under title 14." Id. at 353, 595 P.2d at 31. Our supreme court has also determined that "judgment," "decree" and "order" are synonyms and designate a final disposition of a litigant's rights rather than a decision on an intermediate point which does not dispose of the principal issues in the cause. State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964).

The summary judgment in this matter did not admit the will to probate; rather, it merely dismissed the objections to probate of the will which had been raised as of that date by appellant. See Boone v. Estate of Nelson, 264 N.W.2d 881 (N.D.1978). The judgment was in the nature of an interlocutory order, not a final judgment. Ulan v. Kay, 5 Ariz.App. 395, 427 P.2d 376 (1967). We conclude, therefore, that the summary judgment entered by the superior court was not a final judgment under A.R.S. § 12-2101(J). As we have already observed, the jurisdiction of the Court of Appeals, with certain exceptions, is limited to appeals from final judgments. Cordoba v. Wiswall, 5 Ariz.App. 265, 425 P.2d 576 (1967). Further, there was no express determination by the trial court that there was no just reason for delay and an expressed direction for the entry of judgment pursuant to rule 54(b), Arizona Rules of Civil Procedure. Maricopa Co. v. Maricopa Co. Superior Court, 15 Ariz.App. 149, 486 P.2d 829 (1971). The authors of the...