In re Estate of Nolan

• Decision Date: 16 December 1940
• Docket Number: Civil 4249,4250
• Citation: 108 P.2d 391,56 Ariz. 366
• Parties: In the Matter of the Estate of THOMAS C. NOLAN, Deceased. v. HONORA M. NOLAN, Appellee; GRACE NOLAN, as Executrix of the Last Will and Testament of THOMAS C. NOLAN, Deceased, Appellant, HONORA M. NOLAN, Appellant, v. GRACE I. HUMPHRIES, Also Known as GRACE NOLAN, as Executrix of the Last Will and Testament of THOMAS C. NOLAN, Deceased, Appellee
• Court: Arizona Supreme Court

108 P.2d 391

56 Ariz. 366

In the Matter of the Estate of THOMAS C. NOLAN, Deceased.

GRACE NOLAN, as Executrix of the Last Will and Testament of THOMAS C. NOLAN, Deceased, Appellant, v. HONORA M. NOLAN, Appellee;

HONORA M. NOLAN, Appellant, v. GRACE I. HUMPHRIES, Also Known as GRACE NOLAN, as Executrix of the Last Will and Testament of THOMAS C. NOLAN, Deceased, Appellee

Civil Nos. 4249, 4250

Supreme Court of Arizona

December 16, 1940

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

Messrs Fennemore, Craig, Allen & Bledsoe for Appellant In No. 4249 and for Appellee in No. 4250.

Mrs. E G. Monaghan and Mr. Thomas A. Flynn for Appellee in No. 4249 and for Appellant in No. 4250.

OPINION

ROSS, C.J.

These are cross-appeals, the first being taken by Grace Nolan as executrix of the last will and testament of Thomas C. Nolan, deceased, and the other by Honora M. Nolan, surviving wife of the decedent. Both appeals are from the order of the court settling the first report and account of the executrix, filed October 24, 1938.

The first appellant complains of the court's order charging her with certain property as assets of the estate, not included in her inventory and appraisement, and in disallowing certain items of expense that she had incurred as executrix. And the other appellant (surviving wife) is not satisfied with the court's order settling such account, claiming the court should have charged the executrix with more assets than were charged, and that the order allowed certain claims of expenses that should not have been allowed.

Before proceeding with the discussion of the questions here involved, we call attention to causes Nos. 4129, ante, p. 353, 108 P.2d 385, and 4130, ante, p. 361, 108 P.2d 388, between the same parties, decided December 9, 1940. In the first of these cases the question was whether Thomas C. Nolan's will was valid and we held that it was. In his will he gave everything he had to Grace I. Humphries, to whom we hereafter refer as Grace Nolan. In Cause No. 4130 the question was as to whether a Mexican divorce obtained by Nolan from Honora M. Nolan was void, and we held that it was. Another question was whether Honora being the surviving wife was entitled to a family allowance and we held she was and affirmed the lower court's judgment giving her an allowance of $100 per month, to begin with the date of Nolan's death, with no time limit. The termination of the allowance is fixed by statute. Section 3975, Revised Code of 1928, provides that the allowance may, in the discretion of the court, take effect from the death of the deceased and shall be allowed during the progress of the settlement of the estate, except where the estate is involvent, in which case it is limited to one year after granting letters. In the same section the widow's allowance is given preference to all other charges on the estate except funeral charges and expenses of administration.

Thus it is seen that Honora's interest is that of a preferred creditor only. Beyond seeing that enough property of the estate is accounted for to satisfy her claim, she is not interested. Of course, the executrix is not personally liable for such widow's allowance but is liable in her representative capacity for the allowance and should inventory as assets of the estate all property of which the decedent died possessed. Whatever is left of the estate after paying creditors, taxes, funeral charges, expenses of administration and the widow's allowance, under the will, goes to the executrix Grace Nolan.

Nolan died in Phoenix, Arizona, February 13, 1936, and his will was probated and letters testamentary issued by the superior court of Maricopa county to "Grace Nolan" on April 2, 1936. The decedent and Grace Nolan, in 1932 and soon after they had gone through the form of a marriage, moved from Arizona to Cumming county, Nebraska, and lived there as husband and wife until the latter part of 1935, when they came to Phoenix to live. Nolan died possessed of property in both Nebraska and Arizona.

On or about January 3, 1939, the putative widow (executrix) petitioned the county court of Cumming county, Nebraska, to issue ancillary letters of administration to Hird Stryker, of Omaha, for the administration of Nolan's estate in said state, consisting, as alleged in the petition, of real estate of the value of $1,000 and personal property of the value of $10,000. Thus we see the estate's property was in two jurisdictions, which fact is essential to keep in mind in connection with the facts showing how the property was handled and how it should have been handled.

While the law is that the title to personal property, wherever located, upon the death of its owner passes to his domiciliary representative, the latter's letters authorize and empower him to administer the estate in his jurisdiction only; hence the necessity for ancillary administration in Nebraska. The assets of the estate in Nebraska should have been ascertained, determined and disposed of according to the laws of that state and if after that was done there were left any assets they should have been transmitted to the domiciliary representative for distribution in accordance with the law of such jurisdiction. However, Grace Nolan, acting in her individual capacity, took possession and control of certain Nebraska property long before application for ancillary letters was made, and she now claims that she did so as the owner of such property and not in her representative capacity. She withdrew from Nebraska banks the sum of $1,548.34 and sold personal property, consisting of household goods, crops, machinery, livestock and miscellaneous articles for $3,507.14, and collected some debts owing the estate, all of which she claims belonged to her as an individual and not as legatee under the will. The court found these assets were the property of the estate and charged her with them accordingly. She complains of the court's ruling and contends that under the facts and the law such property belonged to her personally.

The ruling of the court requiring the executrix to list such property as assets of the estate is appealed from by her in her official capacity and not as an individual. It is evident that she was not prejudiced in her representative capacity by the court's ruling. By such ruling the value of the estate was enhanced several hundred dollars and, by the same token, if it was hers individually she was injured several hundred dollars. If the ruling had been adverse to the estate, she could have appealed and the expense of such appeal would have been a proper charge against the estate. But she cannot appeal in her representative capacity from an order affecting her personally and charge the expense thereof to the estate. However, neither the notice of appeal nor the bond on appeal is given by her in her individual capacity. In the Estate of Sims, 14 Ariz. 1, 123 P. 31, we held that an administrator with the will annexed might not prosecute, at the expense of the estate, an appeal from an order of the court disallowing a claim against the estate. If a personal representative could prosecute an appeal from an order and judgment of the court in favor of the estate and against adverse claimants at the expense of the estate, much of the assets might be consumed in that way. His province is to protect the estate and not the claimed interests of third parties or strangers, especially at the expense of the estate.

" A personal representative may not appeal in his representative capacity where he is interested or aggrieved only in his individual capacity, nor may he appeal as an individual where his only interest or prejudice is as representative." 4 C.J.S., Appeal and Error, p. 372, sec. 193.

There being no appeal by Grace Nolan individually, the several assignments of error (from 1 to and including 12) directed at the court's rulings, ordering the inclusion of the personal property as assets of the estate, cannot be considered on her appeal as executrix.

As to these several items appellant-executrix claims the trial court had no jurisdiction in the accounting proceeding in probate to determine, as between the estate and a stranger, conflicting claims as to the ownership of the property. We have held in three cases that the probate court may not try the title to property claimed by a stranger as against the estate. Estate of Tamer, 20 Ariz. 232, 179 P. 644; Estate of Baxter, 22 Ariz. 91, 194 P. 333; Horne v. Blakely, 35 Ariz. 39, 274 P. 173. The remedy in such cases usually is an action either at law or in equity, but in these cases "the stranger" was someone other than the personal representative.

Here it is the personal representative who claims the property does not belong to the estate but to herself individually. If the general rule in such a case is the correct one, Grace Nolan individually would have to bring a civil action against Grace Nolan as executrix, or vice versa, to determine the ownership of the property. She would have to sue herself and if she lost individually the property could be inventoried as belonging to the estate and be subject to administration, otherwise not.

In the annotation to Security-First National Bank v. King, 46 Wyo. 59, 23 P.2d 851, 90 A.L.R. 125, 134, it is said:

"A majority of the jurisdictions follow the rule that a court sitting in probate has jurisdiction to determine the title to property which the personal representative claims in his own right."

Our probate law is taken from California and we have frequently followed the courts of that state in its construction. In Stevens v. Superior Court, 155 Cal. 148, 99 P. 512, 516, the same question we have here was involved...