Garcia's Estates, In re
| Decision Date | 26 May 1969 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 455 P.2d 269,9 Ariz.App. 587 |
| Parties | , 68 A.L.R.3d 704 In the Matter of the ESTATES of Maria Lopez de GARCIA, also known as Maria L. Garcia and Maria Garcia, Deceased, and Francisco U. Garcia, also known as Francisco Garcia, Deceased. Isabel Garcia de LUNA; Beatriz G. Flores; Anita Garcia Flores; Soledad Garcia Hubbard; Angelita Garcia Lopez; and Rosita Garcia De Leon, Appellants, v. Armando GARCIA, Individually and as Fiduciary of the Estate of Maria Lopez Garcia, Deceased, and Armando Garcia and Manuel Garcia as Co-Fiduciaries of the Estate of Francisco U. Garcia, Appellees. 584. |
| Court | Arizona Court of Appeals |
Russo, Cox & Dickerson, by Vernon F. Dickerson, Tucson, for appellants.
Rees, Estes & Browning, by Paul G. Rees, Jr., Tucson, for appellees.
This appeal questions the propriety of charging the residuary beneficiaries of a will with State and Federal estate taxes, attorneys' fees and other expenses of administration and relieving a specific devisee under the will from paying any portion of such charges. 1
We are concerned with the provisions in two reciprocal wills, executed by husband and wife. Each will makes a specific devise of a ranch property, which constituted approximately half of the total value of the community assets, to the surviving spouse, for life, with the remainder over to a son, Armando Garcia, the appellee here. After this specific devise, both wills leave '(a)ll of the rest and residue * * *' of the estate of the deceased to the surviving spouse for life and then over to eight other children of this couple, six of whom are the appellants here. The wills also contain provisions that in case the spouse had predeceased the testator (rix), the ranch shall pass outright to Armando, and the residue of the estate to the eight children. The wife died first and then the husband. Both wills were admitted to probate and the identical legal question is presented in both probates as to the proper method of charging death taxes and expenses of administration. The wills do not charge any specific property with the payment of debts, expenses of administration, or estate taxes.
Both sides agree that the question is controlled by state law. See Fernandez v. Wiener, 326 U.S. 340, 345, 66 S.Ct. 178, 181, 90 L.Ed. 116 (1945). The appellants, the residuary legatees, who were charged with all of these expenses in the decree of distribution, rely upon the wording of a code provision and the doctrine of 'equitable apportionment' to upset the decision reached.
We turn first to the contention that our statutory law requires that these costs be apportioned between the specific devisee and the residuary legatees. Appellants contend that this result is dictated by A.R.S. § 14--686:
'The estate, real and personal, given by will to legatees or devisees is liable for the debts, expenses of administration and family allowance In proportion to the value or amount of the several devises or legacies, but specific devises or legacies are exempt from such liability if it appears to the court necessary to carry into effect the intention of the testator and there is other estate sufficient for that purpose.' (Emphasis added)
The appellants argue that there is nothing in this will to indicate an intention on the part of the testator (testatrix) that the specific devise to Armando should be exempt from liability and therefore all charges against this estate should be prorated between the specific and the residuary beneficiaries.
We disagree with this contention. The above-quoted statute must be read in the light of other statutory provisions upon this same subject, State ex rel. Church v Arizona Corporation Commission, 94 Ariz. 107, 110--111, 382 P.2d 222, 224 (1963), and when this is done, a statutory scheme for the payment of debts and expenses of administration becomes apparent. The statutes immediately preceding the above-quoted section are enlightening:
' § 14--684.
* * *'
' § 14--685.
'If the provision made by the will or the estate appropriated therefor is insufficient to pay the debts, expenses of administration and family allowance, that portion of the estate not devised or disposed of by will, if any, may be appropriated and disposed of for that purpose, and If not sufficient, from the property devised or bequeathed to residuary devisees and legatees.' (Emphasis added)
The 'Historical Note' in the 1956 code indicates that all three sections quoted above (A.R.S. §§ 14--684--686) were '(a)dopted from California, see West's Ann.Prob.Code, § 750.' 2 Our own perusal of early California statutory law convinces us that the source of our statutory law is California, but that we have taken this law from legislation which considerably antedates Probate Code § 750. This latter code section was adopted in California by the Statutes of 1931, Ch. 281, at 634, § 750.
As indicated in the historical notes to these sections from our 1956 code, the predecessors to our statutes have been with us since the Revised Statutes in 1901, in which volume these sections above quoted were then designated as §§ 1799 , 1801 (now A.R.S. § 14--685), and 1802 (now A.R.S. § 14--686). A comparison with California law of comparable vintage indicates that the counterpart of what is now A.R.S. § 14--685 was § 1359 of the California Civil Code, adopted in 1874 as part of the Code Amendments 1873--74 (). Section 1359 read as follows:
'The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of debts, in the following order:
'One. The property which is expressly appropriated by the will for the payment of the debts;
'Two. Property not disposed of by the will;
'Three. Property which is devised or bequeathed to a residuary legatee;
'Four. Property which is not specifically devised or bequeathed; and
Coexisting with this provision in the Civil Code of California was a provision in its Code of Civil Procedure, which is obviously the ancestor of our A.R.S. § 14--686, the section upon which appellees rely:
§ 1563. Estate subject to debts, etc.
'The estate, real and personal, given by will to legatees or devisees, is liable for the debts, expenses of administration, and family expenses, In proportion to the value or amount of the several devises or legacies, but specific devises or legacies are exempt from such liability if its appears to the court necessary to carry into effect the intention of the testator, and there is other sufficient estate.' (Emphasis added) (Deering's Code of Civil Procedure, California, 1923, indicates that this section was adopted on March 11, 1872.)
In re De Bernal's Estate, 165 Cal. 223, 131 P. 375, 380 (1913), considers, but does not decide, whether there is a conflict between these two quoted sections of early California law. The apparent conflict between their provisions was resolved in California subsequently by judicial decision. In re Babb's Estate, 200 Cal. 252, 252 P. 1039 (1927); In re Bacigalupi's Estate, 105 Cal.App. 578, 288 P. 122, 123 (1930). In Babb, the Supreme Court of California said:
Section 750 of the present California Probate Code is obviously an amalgamation of these two pertinent code sections of the earlier California Codes which were synthesized in the Babb and Bacigalupi decisions, and this code section now states clearly and concisely the law upon this subject in California.
Before declaring what we believe to be the intent of the counterpart Arizona sections, it should be noted that what is now A.R.S. § 14--685 has not always read the same. Until the 1928 Revised Code, this section had read:
'If the provision made by the will or the estate appropriated therefor is insufficient to pay the debts, expenses of administration and family expenses, that portion of the estate not devised or disposed of by the will, if any, Must be appropriated and disposed of for that purpose, according to the provisions of this chapter.' (Emphasis added) Revised Statutes of Arizona § 943 (1913).
The 1928 codification, § 4035, changed the word 'must' to 'may.' It is our view that no substantial change was intended by so doing. In re Sullivan's Estate, 38 Ariz. 387, 393, 300 P. 193 (1931). The 1928 language remained until 1956, when by the Laws of 1956, Ch. 116, there was added the following language:
'* * * and if not sufficient, from the property devised or bequeathed to residuary devisees and legatees.'
If these statutes were ambiguous before this 1956 amendment, we do not believe they are afterwards. It seems to this court that reading these various provisions together, it is reasonably clear that the California system, as now contained within § 750 of the Probate Code, quoted Supra, n. 2., has been adopted in Arizona. We are reinforced in this conclusion when it is pointed out that this statutory scheme is substantially the same as that which prevailed at the common law. See 6 Bowe-Parker; Page on Wills (1962) §§ 53.5--53.8, at 213--22; Atkinson on Wills (2d ed. 1953) § 136, at 754--56; Thompson on Wills...
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