In re Guardianship of Sears

Decision Date07 December 1934
Docket NumberCivil 3467
Citation38 P.2d 308,44 Ariz. 408
PartiesIn the Matter of the Guardianship of J. M. SEARS, an Incompetent Person. ELLA SEARS KAY, Appellant, v. E. A. STANFORD, Guardian of the Person and Estate of J. M. SEARS, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Mr. F L. Zimmerman, for Appellant.

Mr. L J. Cox, for Appellee.



This is an appeal from four orders of the superior court in the matter of the guardianship of the person and estate of J. M Sears, an incompetent person, taken by Ella Sears Kay hereinafter called appellant, the daughter of the incompetent, as against the guardian appointed by the court. Charles E. Dale was the original guardian, but E. A. Stanford was during the progress of this appeal substituted for him.

The four orders appealed from were was as follows: (a) An order made on the 25th day of September, 1933, allowing the sum of $50 each as and for three appraisers' fees; (b) an order made on the 23d day of October, 1933, allowing an attorney's fee of $150 to Mr. Sam H. Kyle; (c) an order made on the 9th day of October, 1933, denying the application of appellant for a modification of the order appointing the guardian; and (d) an order made on the 1st day of November, 1933, denying a petition of appellant to restore J. M. Sears to competency.

The facts of the case necessary to determine the appeal, stated in the strongest manner in behalf of the guardian, as we must consider them under the rule, are as follows: J. M. Sears, the incompetent, was engaged in the cattle business in Arizona for many years, at first alone and later with his two sons George and W. P. Sears and his son-in-law Harry Kay, the husband of appellant. When he had reached approximately the age of sixty-eight, he sold out his interests and retired from active business, investing the money thus secured principally in mortgages on Phoenix real estate. Mr. Sears was a man of considerable native ability but tittle education, and for about twelve years his son-in-law Harry Kay looked after his investments for him. Thereafter his son George Sears handled the business for about four years, and on account of failing health of the former it was transferred to W. P. Sears, at present the sole surviving son of J. M. Sears, who cared for his father's property under a power of attorney for about four years prior to the appointment of a guardian. The property had increased in value, so that when the guardian was appointed its appraised value was something over $45,000, an amount considerably in excess of J. M. Sears' original investment. For many years the latter had lived with appellant, his only daughter, or with a niece, but in February, 1933, he became seriously il and his son and daughter disagreed as to what should be done in regard to the illness. He was finally taken to a hospital, where he remained for some time and then was cared for at the home of his daughter. The expense of his board and treatment, including the services of two trained nurses, was considerable, and for some reason W. P. Sears refused to pay to appellant from her father's estate what she claimed was due to her under the circumstances. The power of attorney under which the brother was acting was thereafter revoked, and appellant filed a petition in the superior court for the appointment of a guardian of the person and estate of her father, Sam H. Kyle, Esq., being her attorney for his purpose. After due notice and a hearing, the court, on June 12, 1933, appointed Charles E. Dale as the guardian of both the person and estate of J. M. Sears. On the same day the court appointed three appraisers of the estate of the incompetent, and on July 19th they returned a very complete and detailed inventory and appraisal, fixing the value of the estate at $45,552.90. They then rendered a bill to the estate for compensation for their services as such appraisers in the sum of $100 each. This bill was presented to the court by the guardian, and on September 25th it was by the court allowed for $50 each, and an order directing the guardian to pay said amount was entered.

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8 cases
  • State Tax Commission v. Miami Copper Co.
    • United States
    • Arizona Supreme Court
    • July 14, 1952 the absence of an express provision granting the right, none exists. Smith v. Trott, 36 Ariz. 166, 283 P. 726, 728; In re Sears' Guardianship, 44 Ariz. 408, 38 P.2d 308. In 21 C.J.S., Courts, § 172, subsection d, the principle is stated as 'Subject to the principle that rules of court mu......
  • Johnson v. Superior Court, 5168
    • United States
    • Arizona Supreme Court
    • November 23, 1948
    ... ... Counsel ... for respondent, in contesting the appealability of the order, ... rely upon the following cases: In re Sears' ... Guardianship, 44 Ariz. 408, 38 P.2d 308; In re ... Tamer's Estate, 20 Ariz. 228, 179 P. 643; Ritter ... v. Arizona Cattle Co., 34 Ariz. 278, ... ...
  • Strobel, Matter of, 1
    • United States
    • Arizona Court of Appeals
    • May 23, 1985
    ...of review is to determine whether the record and evidence substantially support the trial court's judgment. In re Guardianship of Sears, 44 Ariz. 408, 38 P.2d 308 (1934). The pertinent provisions of the inter vivos Trust A are as FIFTH: Distribution of Trust Funds in Trust A (A). Upon the d......
  • Yerger v. Bross
    • United States
    • Arizona Supreme Court
    • December 31, 1948
    ... ... City of Prescott, 38 ... Ariz. 66, 297 P. 443; Duncan v. Superior Court, 65 ... Ariz. 193, 177 P.2d 374; and in Re Guardianship of ... Sears, 44 Ariz. 408, 38 P.2d 308, 309, it is said: ... "* * * An appeal is a matter of privilege granted by the ... ...
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