Harber's Estate, In re, 8572
| Decision Date | 02 January 1969 |
| Docket Number | No. 8572,8572 |
| Citation | 449 P.2d 7,104 Ariz. 79 |
| Parties | In the Matter of the ESTATE of J. N. HARBER, Deceased. Rex E. STALEY and E. J. O'Malley, as Co-Executors under the Last Will and Testament of J. N. Harber, Deceased, Appellant, v. The ESTATE of Mary H. HARBER, Deceased, Appellee. |
| Court | Arizona Supreme Court |
Lewis, Roca, Scoville, Beauchamp & Linton, by Charles Crehore, Phoenix, Spurr & Steed, by J. Rex Spurr, Shawnee, Okl., for appellee.
Dr. J. N. Harber, died a resident of Phoenix, Maricopa County, Arizona on August 8, 1962. He was survived by his widow, Mary H. Harber. Mrs. Harber died on March 6, 1963.
The last will and testament of J. N. Harber was admitted to probate on August 31, 1962 and Joe Lanser, Sr., Rex E. Staley and E. J. O'Malley qualified and were appointed as co-executors. Mr. Lanser died in December 1963 and Messrs. Staley and O'Malley have continued to function as the surviving co-executors. On the demise of Mrs. Harber, her will was admitted to probate and one Irene Foley was appointed and qualified as executrix.
Dr. and Mrs. Harber were married on or about July 4, 1906; and lived together as husband and wife until the death of Dr. Harber. There was no issue born as a result of this marriage and no child or children were ever legally adopted by them.
On June 11, 1938, in contemplation of a move from the State of Oklahoma to take up residence in the City of Phoenix, Arizona, Dr. and Mrs. Harber entered into the following agreement, to-wit:
And, whereas, the said parties have no direct heirs or living children to whom their property would descent; and Whereas, each party hereto has brothers and sisters and other blood relatives, which they desire to aid and assist.
And, Whereas the parties hereto have mutually agreed while in health and strength, to divide their property, each releasing to the other his or her separate estate so that each party may deal with his or her separate estate as they desire. Lots numbered Fifteen (15), Sixteen (16), Seventeen (17), Eighteen (18), Nineteen (19), and Twenty (20) in Block numbered Four (4), in EVANS' ADDITION TO ORANGEWOOD, according to the official map or plat thereof on file and of record in the office of the County Recorder of Maricopa County, in Book 2 of Maps, at page 56 thereof--
It is, therefore, agreed that the party of the second part for and in consideration of the sum of One Hundred Thousand ($100,000.00) Dollars, cash in hand paid by the said first party, the receipt of which is hereby acknowledged by the said second party, and in consideration of the property located in Maricopa County, Arizona, described as follows, to-wit:
And in consideration of other good and valuable considerations does hereby surrender, release and waive all rights, claims and demands of whatsoever kind or nature that she may have at this time or that she may hereafter acquire in or to any of the property of the first party hereto, whether said property be real, personal or mixed.
For and in consideration of the covenants and agreements made and herein contained, the said second party specifically surrenders and waives any and all claims, rights of dower, support or alimony or any other claim or demand whatsoever kind or nature, which said second party may have at this time or which she may hereafter acquire in, to or against the property or property rights of the first party.
Said first party specifically waives and surrenders any and all claims of whatsoever kind or nature that he may now or that he may hereafter acquire in and to, or against the property or property rights of the said party of the second part.
Each of the parties hereto agrees that the property set over herein to the party of the second part, is to be and constitute her spearate property and is hereby accepted by her as her just and equitable division of all the properties owned at this time by the parties hereto, with full power and authority on her part to sell, give away, dispose of by gift, conveyance or will, any and all of the said property to whomsoever she may, without the knowledge or consent on the part of the other party hereto.
It is understood and agreed that the homestead located in the City of Seminole, Oklahoma, and described as follows, to-wit:
All of Lot One (1) and the North Half (N 1/2) of Lot Two (2), in Block Twenty-Six (26), in Fairmount Addition to the City of Seminole, Seminole County, Oklahoma, according to the officially recorded plat thereof--
shall be retained by the parties hereto as their homestead and is hereby declared to be such and the same cannot be conveyed without the consent of both parties hereto, it being agreed that the survivor in case of death shall take all of said property together with all furniture and fixtures therein contained.
It is further understood and agreed that the remainder and residue of the property belonging to the parties hereto not above described shall be the property of the party of the first part and the party of the second part hereby disclaims any interest therein and grants, bargains, sells and conveys and assigns and sets over to the party of the first part, all of said property.
Each of the parties hereto agrees at the request of the other to sign any and all papers, to transfer any property, real or personal now owned and acquired by either of the parties hereto and parties specifically waive any right in or to the property of the other now owned or hereafter acquired by either of said parties.
It is mutually agreed between the parties hereto that this property settlement is fully understood and is being carried out so that the parties hereto may by will or otherwise transfer their separate property, so that at the time of death of either party hereto, whatever disposition either of the parties may have made of his or her separate property, the title to the same may vest in their grantees, beneficiaries or devisees, without any claim being made thereto by Signed this the 11th day of June, 1968.
the other party by reason of any inheritable right which each hereby specifically waives.
Party of the First Part
/S/ MARY HARBER
Party of the Second Part
(acknowledgment omitted)
The Last Will and Testament of J. N. Harber dated July 25, 1952, paragraph First thereof reads as follows:
The property described in the paragraph of the will above quoted, 5751 North Central Avenue, is the same property as is described as Lots 15, 16, 17, 18, 19, 20 in Block 4, Evans Addition to Orangewood, in the agreement of June 11, 1938.
At the time of execution of the 1938 agreement, the value of property in Mary Harber's name was approximately $296,000. This consisted of $45,000 cash, a $45,000 receivable arising from a loan to Claude Harber, Dr. Harber's nephew, and a $206,000 receivable arising from a loan to Dr. Harber. At the same time Dr. Harber had accumulated net assets in the approximate value of $800,000.
Mary Harber never received $100,000 cash, but instead a promissory note was prepared. There was no evidence that the promissory note was ever delivered to Mary and no one has been able to locate it. The Phoenix real property which went to Mary under the agreement was purchased for $43,000, toward which Mary had already contributed $25,000 from her own funds. Dr. Harber treated the agreement as washing out his $206,000 loan from Mary. Sometime later Mary Harber's entire bank account was transferred into the account of Dr. Harber. At this time, the account had increased from $45,000 to about $82,000 by virtue of Claude Harber having paid off his loan. The fact of this transfer was kept from Mary Harber. Although the agreement did not so provide, Dr. Harber later interpreted the contract as transferring to Mary the Oklahoma homestead worth approximately $4,500.
The net effect of the agreement as far as Dr. Harber was concerned was to leave Mary Harber with the 40 acres in Phoenix, the homestead in Oklahoma, and the $100,000 promissory note.
The 1938 agreement was drafted by Mr. Pryor, an Oklahoma attorney who also stated to Dr. Harber that he could not vouch for its validity. Dr. Harber expressed on more than one occasion, his philosophy about a woman's legitimate claim to care and support. His philosophy was that it was sufficient if a woman had $500 a month and a home in which to live. Dr. Harber also expressed a reluctance to leave any substantial sums of money to his wife which she could then leave to her relatives. His position was that relatives on the Hunter side of the family were not to benefit from what he considered to be his efforts.
On February 19, 1963, there was filed in the Superior Court, Maricopa County, Arizona, pursuant to Article 7, Chapter 5, Title 14 of the Arizona Revised Statutes, (A.R.S. Sec. 14--641 et seq.) on behalf of Mary Harber, a Petition for a Determination of Heirship, paragraph VII of said petition reads as follows:
'Your petitioner is the surviving spouse of J. N. Harber, deceased,...
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