In re Baxter's Estate

• Decision Date: 10 January 1921
• Docket Number: Civil 1829
• Citation: 194 P. 333,22 Ariz. 91
• Parties: In the Matter of the Estate of JOHN G. BAXTER, Deceased. v. PHIL C. BRANNEN, Administrator of the Estate of JOHN G. BAXTER, Deceased, Appellee MICHAEL IRISH, Appellant,
• Court: Arizona Supreme Court

194 P. 333

22 Ariz. 91

In the Matter of the Estate of JOHN G. BAXTER, Deceased.

MICHAEL IRISH, Appellant, v. PHIL C. BRANNEN, Administrator of the Estate of JOHN G. BAXTER, Deceased, Appellee

Civil No. 1829

Supreme Court of Arizona

January 10, 1921

APPEAL from a judgment of the Superior Court of the County of Pima. Samuel L. Pattee, Judge. Order appealed from vacated and set aside for want of jurisdiction to enter it.

STATEMENT OF FACTS.

This case was carried on in the lower court as a probate proceeding, and arose out of a dispute over the ownership and division of certain moneys realized out of the Minnie mining claim, situate in Pima county, Arizona. E. G. Bush, John G Baxter, and Michael Irish were, on August 10, 1916, and for some time prior thereto, co-owners respectively, of one-half two-sixths, and one-sixth of said mining claim. On that date Baxter died intestate, and thereafter, on September 6, 1916 Phil C. Brannen was appointed and qualified as administrator of his estate. During the time these parties were such co-owners, ores were extracted from said mine and disposed of, which, together with the sum realized on account of an optional contract of sale of the mine, amounted to $228,625.93 after deducting all expenses. Of this sum one-half, or $114,312.97, it is conceded, rightfully belonged to Bush on the basis of his one-half ownership and an understanding between the owners of the mine, and is therefore not in any way involved in this controversy. The other one-half was divided or distributed, $95,535.99 to Baxter and his personal representative, and $18,776.97 to Irish. The latter now contends he was entitled to one-sixth of the total sum realized from the mine, or $38,104.31, and that Brannen, as administrator, has in his possession $19,327.34 belonging to him. Irish, for many years a resident of Pima county and owner of mining stocks and mining claims in 1907 gave to Baxter a power of attorney, authorizing the latter "to sell, assign, or transfer any or all of his mining stock or mining interests wherever situate in Arizona," and thereafter left Arizona for Ireland, where he continuously resided up to the date of this litigation. For about one year from June, 1914, to July, 1915, Bush and Baxter worked and operated the Minnie mine and shipped ores therefrom, realizing about $83,500 net. Out of this Baxter accounted to Irish for ten per cent of one-sixth. On July 19 1915, Bush and Baxter, and Baxter as attorney in fact of Irish, entered into an optional contract of sale of the Minnie mine, and also the Portland mining claim to the American Smelting & Refining Company, and received in payments on that account $141,953.62. Some time before this sale in 1914 or 1915 Bush and Baxter located in their own names a piece of ground adjoining the Minnie, under the name of the Portland mining claim, and in apportioning the sum received from the American Smelting & Refining Company they allowed five-eighths to the Minnie and three-eighths to the Portland, and Baxter accordingly remitted to Irish one-sixth of five-eighths of the sum paid by the company, instead of one-sixth of the total sum received from the optional purchaser.

The reason that the matter was presented to the superior court while acting as a probate court was because of the following circumstances: The administrator, on October 3, 1916, filed an inventory and appraisement of the Baxter estate, and listed as an asset thereof Baxter's interest in the copartnership, consisting of Bush, Baxter, and Irish, organized for the operation of the Minnie mine. This item was carried through the administration, and appeared, as stated, in the administrator's final report and petition for distribution of the estate. Irish, before the date fixed for hearing on final report of administrator, filed with the court his objections to the final account, and therein set forth his claim to the sum of $19,327.34 in the hands of the administrator, based upon the theory that he was entitled to the same by reason of his being a member of the partnership to the extent of one-sixth of whatever was realized out of the Minnie mine. The answer of the administrator to the above claim of Irish states that, notwithstanding the inventory and appraisement and other documents and court orders proceeded upon the theory and recognized the existence of a copartnership between Bush, Baxter, and Irish at the time of Baxter's death and prior thereto in the operation of the Minnie mine, no such partnership in fact existed; that Bush and Baxter were partners in the operation of said mine, and had divided equally the profits therefrom; that Baxter had an agreement with Irish to the effect that he would pay Irish ten per cent of one-sixth of the profits from such operation, which had been done. He also alleges that the settlement with Irish on the basis of five-eighths of the amount realized from the American Smelting & Refining Company was proper, and claims that Irish had been overpaid the sum of $200 on account of one-sixth of the profits being given him, instead of ten per cent of one-sixth thereof accruing by operation of the mine after Baxter's death.

Irish's reply pleads that, because the inventory and appraisement, final account and petition for distribution, and statement of account rendered him upon request by the administrator all recognize the copartnership between Bush, Baxter, and Irish, the administrator is estopped from denying such partnership; that but for such representations he would have taken action to protect his interests at the time the inventory was filed; that by reason of said partnership being so shown to exist, no occasion arose for action until the estate was about to be closed without a partnership accounting.

Upon the issues thus formed a trial was had. The court made thirty-nine findings of fact. The material ones, summarily stated, are:

(1) That Bush and Baxter composed a partnership to operate, and as such did operate, the Minnie mine from June, 1914, to July, 1915.

(2) That Baxter had...