In re Estate of Baxter

• Decision Date: 29 September 1941
• Docket Number: Civil 4353
• Citation: 58 Ariz. 16,117 P.2d 91
• Parties: In the Matter of the Estate of MARY H. BAXTER, Deceased; HOWARD RIVES, Petitioner for Partial Distribution, Appellant, v. HUGO B. FARMER, as Executor of the Estate of Mary H. Baxter, Deceased; and DOROTHY K. WINSLOW, as Administratrix of the Estate of Cornelia K. Rives, Objector to Petition for Partial Distribution, Appellees
• Court: Arizona Supreme Court

117 P.2d 91

58 Ariz. 16

In the Matter of the Estate of MARY H. BAXTER, Deceased; HOWARD RIVES, Petitioner for Partial Distribution, Appellant, v. HUGO B. FARMER, as Executor of the Estate of Mary H. Baxter, Deceased; and DOROTHY K. WINSLOW, as Administratrix of the Estate of Cornelia K. Rives, Objector to Petition for Partial Distribution, Appellees

Civil No. 4353

Supreme Court of Arizona

September 29, 1941

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment affirmed.

Mr Walter J. Thalheimer and Mr. William H. Westover, for Appellant.

Mr Vere Nadir Norton and Mr. W. H. Gregory, of Los Angeles California, and Mr. J. Fred Hoover, for Appellee Winslow.

OPINION

ROSS, J.

This in an appeal by Howard Rives from an order denying his petition for a partial distribution to him as a legatee under the will of Mary H. Baxter, deceased.

The will, under which appellant claims a portion of the decedent's estate, was made August 13, 1927. The maker thereof was a resident of Yuma County. She died December 20, 1928. In her will she nominated Hugo B. Farmer as executor and devised to him all of her property, real, personal and mixed, wheresoever situate (except a ranch property and appurtenances, devised and bequeathed by her to her niece Frances W. Hardy and her husband), together with the rents, issues and profits thereof, to have and to hold the same in trust, with the powers therein conferred, and for distribution of the proceeds to the persons named and specified.

The executor was authorized and directed to convert all of the property into money; to sell it at private or public sale to the best advantage to the estate and for the highest price obtainable. She directed the reports of sales to be made to the court and specified that no sale should be absolute until thirty days after such report was filed in court, during which time "any beneficiary" under the will might make written objections to a sale and have a hearing before the court. The executor was directed to use due and proper diligence in executing the powers conferred, by selling property and converting it into money and in any event to fully discharge the trust within ten years from and after the testatrix' death, and in a lesser period if it were possible and in the best interests of the estate.

She directed that the moneys belonging to her estate and coming into the executor's hands be disbursed in payment of the expenses of (1) her last illness, funeral expenses and debts; (2) probating her estate; (3) converting property into money and collecting and disbursing the moneys of the estate as provided in the will; (4) executor's fees, fixed in the will at 6% of all moneys of the estate, and (5) maintaining the will, in case it was contested, and carrying out its provisions.

The will directed the executor to make annual disbursements out of the moneys coming into his hands under the trust therein and to make and file annual accounts of his receipts and disbursements.

The donees under the will and the operative words of gift and amounts each was to receive are as follows: "It is my will and wish" that my sister Ida J. Snyder receive from my estate the sum of One Hundred Dollars, and no more; that from my estate the moneys shall go "to my nephew, King W. Cawthon, the sum of Five Thousand Dollars; to my niece, Amy McIntosh, nee Snyder, the sum of Five Thousand Dollars; to my niece, Frances W. Hardy, in addition to the property specifically devised to her, the sum of Five Thousand Dollars; to my nephew, Edward B. Rives, the sum of Ten Thousand Dollars; the above named sums shall be paid to them by said Executor out of the moneys belonging to my estate as soon after my death as reasonably can be done without sacrifice of property belonging to my estate.

"All the rest, residue and remainder of the moneys belonging to my estate which shall come into the hands of my said Executor in the full execution of this trust shall be by him paid in the proportions named to the following persons, which it is my will that they shall receive out of my estate, namely: To Blanche Wisby, nee Snyder, a one-sixth share thereof; to Mary J. Kendrick, nee Snyder, a one-sixth share thereof; to Edna E. Cordes, nee Synder, a one-sixth share thereof, and to Ellen Parker, nee Snyder, a one-sixth share thereof; to Robert Rives, Edward Rives and Howard Rives, children of my deceased nephew, Jim Rives, a one-eighteenth share thereof to each of them, the said Robert Rives, Edward Rives and Howard Rives; and to my nephew, Logan Rives, a one-sixth share thereof, and should any person named in this Will as a beneficiary be not living at the time or times moneys are payable to him or her under this Will, then such moneys shall be paid to their lawful heirs."

The controversy is over the portion of the moneys of the estate willed to Logan Rives and it comes about by reason of the following facts. Logan Rives, it will be observed, is named in the will as one of the residuary beneficiaries. May 21, 1933, he died intestate, leaving surviving him his wife Cornelia K. Rives, but without issue. Cornelia died March 9, 1938, and Dorothy K. Winslow, one of the defendants and appellees, is the administratrix of her estate. Logan Rives before his death assigned his portion of the estate to his wife Cornelia.

It is the contention of the appellee Winslow that the gift to Logan Rives took effect on the death of the testatrix and that it passed to Cornelia as his sole heir at law, also that it was here by virtue of the assignment.

It is the contention of the appellant Howard Rives, a nephew of Logan, that the gift to his uncle was one in futuro, to take effect and inure to his heirs (of which he is one) living at the time or times the trustee had funds of the estate available for the residuary legatees, and that there were no funds available for the residuary legatees at the time of or before the death of Logan (May 21, 1933), or at the time of or before the death of Cornelia (March 9, 1938), or at any time before April of 1938. This contention of the appellant is based solely upon this phrase of the will:

"... and should any person named in this Will as a beneficiary be not living at the time or times moneys are payable to him or her under this Will, then such moneys shall be paid to their lawful heirs."

We are to determine from the context of the will, if we can, what the testatrix intended and give that intention effect. On that score we assume that she wanted the persons named as beneficiaries of her estate to have the portions thereof assigned by her to them as quickly and expeditiously as her executor could convert her property, without sacrificing it, into money, out of which he was directed to disburse the different legacies, and that the gift was immediate and complete upon the giver's death. This conclusion is fortified by the well-recognized rules for the construction of wills. Such rules are well stated and supported by numerous authorities in In re Mansur's Will, 98 Vt. 296, 127 A. 297, 298, as follows:

"... One [rule] is that the law favors the vesting of estates on the death of the testator when the will becomes operative, and if the language used is consistent with an intention to postpone the enjoyment only such will be presumed to have been the testator's intention. This presumption is so favorably regarded that no estate will be held contingent unless positive terms are employed in the will indicating that such is the intention. [Citing cases.] Another rule is that when futurity is annexed to the substance of the gift the vesting is postponed; but if annexed to the time of payment only the legacy vests immediately. Perhaps this rule is nowhere better stated than by Blackstone; he says:

"'And if a contingent legacy be left to anyone, as when he attains or if he attains, the age of twenty-one, and he dies before...