In re Estate of Monaghan

• Decision Date: 17 May 1943
• Docket Number: Civil 4503
• Parties: In the Matter of the Estate of Robert J. Monaghan, Deceased, v. RICHARD H. KENNERDELL, Appellee ELIZABETH G. MONAGHAN, Appellant,
• Court: Arizona Supreme Court

137 P.2d 390

60 Ariz. 346

In the Matter of the Estate of Robert J. Monaghan, Deceased,

ELIZABETH G. MONAGHAN, Appellant, v. RICHARD H. KENNERDELL, Appellee

Civil No. 4503

Supreme Court of Arizona

May 17, 1943

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. H S. McCluskey and Mr. Thomas A. Flynn, for Appellant.

Messrs Cornick & Carr, Mr. Wallace W. Clark and Mr. Ozell M. Trask for Appellee.

OPINION

STANFORD, J.

This is a case of the contest of a will, the ground for contest being that the decedent lacked testamentary capacity to make the will.

The will was executed April 18, 1940, and testator, Robert J Monaghan, died on or about the 10th day of May, 1941, at Phoenix, Maricopa County, Arizona. On May 17, 1941, Richard H. Kennerdell, the person named executor in the will in question, filed the will for probate in said county. The hearing on probate proceedings was set for June 3, 1941, and on May 26, 1941, the appellant filed an opposition to probate the same, and the matter of the contest was heard before a jury, the case having been set for trial in September, 1941. On June 3rd an affidavit of bias and prejudice was filed by the executor causing the case to be transferred from the division of the court of Judge J. C. Niles to the division of the court of Judge M. T. Phelps.

The following was the interrogatory submitted to the jury at the close of the case:

"Was the deceased, Robert J. Monaghan, of sound and disposing mind on April 18, 1940, when he executed the instrument filed herein for probate as his last will and testament? (Answer yes or no)."

The jury answered in the affirmative in rendering its verdict.

The fourth paragraph of the will reads as follows:

"Fourth: I give, devise and bequeath to my wife, Elizabeth G. Monaghan, from whom I have been permanently separated for four (4) years or thereabouts, the cash sum of ten ($10.00) dollars. I represent that in June, 1936, or thereabouts my said wife and I entered into a property settlement agreement which said agreement is of record in the office of the county recorder of Yavapai County, Arizona."

That there was a settlement of personal property between the parties hereto as follows, except signatures and notary acknowledgement:

"The undersigned, R. J. Monaghan and E. G. Monaghan, his wife, have this day agreed on a complete cash and chattel settlement, satisfactory to both parties, it being understood and agreed that the only community property remaining undivided is the real property owned jointly by them.

"Dated this 20th day of June, 1936."

Among the many contentions of appellant is the disqualification of Judge Niles upon unstatutory grounds, and consequent lack of jurisdiction of Judge Phelps to try this matter.

Section 38-102, Arizona Code Annotated 1939, under the chapter of "Probate Law and Procedure," reads in part as follows:

"... A change of judge shall be granted as in civil actions as to any matter and upon the motion of a party interested in the proceedings."

Section 21-107, under "Change of judge," reads as follows:

"... or that the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge he can not obtain a fair and impartial trial, said judge shall at once transfer the action to some other division of the court, if there be more than one (1) division of said court in said county, or request the judge of some other superior court of some other county to preside at the hearing and trial of such action."

We find on reading the transcript of evidence in this cause that after the affidavit of bias and prejudice was filed, Judge J. C. Niles, of the Superior Court of Maricopa County, heard counsel on both sides of the case on the subject of his disqualification and then transferred the case to Judge M. T. Phelps, also of that court.

During the hearing on this subject one of the attorneys for appellee made the statement to the effect that they would be willing to try the case before any one of four judges, including Judge Phelps of Maricopa County.

One of the counsel for appellant stated:

"We suggest that we believe that the nature of the matters involved are such that it would be to the advantage of the estate that the matter be determined by a Maricopa County judge and that by reason of the extensive detail involved it would probably be detrimental to the estate to have an outside judge handle the same."

We think that the case of the Estate of Sears, 54 Ariz. 52, 91 P.2d 874, 875, lays down the rule that can be followed in the matter of change of judges, and from that decision we quote the following:

"Section 3888, Id., besides giving certain grounds of disqualification of a judge, adopts the procedure for changing judges in probate, including the grounds of bias and prejudice, as prescribed in civil actions."

Section 3888, referred to above, is section 38-102 of our present code.

We hold that Judge J. C. Niles acted according to our law when he stated to the interested parties after the affidavit of bias and prejudice had been filed, "It is my interpretation of the law upon the filing of an affidavit of bias and prejudice the Court has the single duty of assigning it to another judge subject to the expression of choice by both parties."

The contention has been made by the appellant that Judge Phelps, on receiving the assignment of this cause from Judge Niles, made a statement which we think it is important we pass on at this time. When the case was taken from the division of Judge Niles to that of Judge Phelps, the latter said:

"Well, now, may I ask this before you go further -- I never handled a probate matter, except years ago, and if I ever did know anything about it, I have forgotten it. I think I have only handled one contest."

Appellees point to the fact that Judge Phelps was a trial judge in the case of the Estate of Sears, supra. In that case his order was affirmed. He is a seasoned trial judge, and with the variety of work of the Superior Court of Maricopa County, the seat of the capitol of our state, if he could recall, no doubt has had a great deal of experience. The comment could not disqualify him. Judges are somewhat dual persons when they are given a task that they would rather not have. Probably that was one way that he might be able to be delivered if it, but certainly his many years...