In re Scarry's Estate

• Decision Date: 14 January 1914
• Docket Number: Civil 1326
• Citation: 137 P. 868,15 Ariz. 246
• Parties: In the Matter of the Estate of JOSEPH M. SCARRY, Deceased. WM. H. SCARRY, Appellant, v. S. E. EPLER Appellee
• Court: Arizona Supreme Court

137 P. 868

15 Ariz. 246

In the Matter of the Estate of JOSEPH M. SCARRY, Deceased. WM. H. SCARRY, Appellant, v. S. E. EPLER Appellee

Civil No. 1326

Supreme Court of Arizona

January 14, 1914

APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge. Modified and remanded.

The facts are stated in the opinion.

Mr Fred. L. Ingraham and Mr. Clement H. Coleman, for Appellant.

Messrs Kibbey, Bennett & Bennett, for Appellee.

OPINION

ROSS, J.

Action by appellee, Epler, against the administrator of the estate of Joseph M. Scarry, deceased. It is an action for specific performance of a contract of sale of land situate in Yuma county, Arizona, and is prosecuted by appellee, under the provisions of chapter 9, title 17, Revised Statutes of Arizona of 1901, which provide for the administrator's carrying out, under orders and decrees of the probate court the contracts in writing of the deceased to convey real estate. At the hearing in the probate court, Wm. H. Scarry appellant, brother of the deceased, appeared and contested the petition of appellee. The probate court entered judgment directing the administrator to execute proper conveyance of land to appellee. From this judgment, an appeal was prosecuted to the superior court of Yuma county. In that court appellant filed pleadings in which he objected to the jurisdiction of the probate court, for the reason that Joseph M. Scarry, at the time of his death, was not a resident of Yuma county, and left no property within the territory of Arizona; objected to the enforcement of the contract on the grounds of inadequacy of price, and as being grossly unfair, unjust and inequitable, for indefinite and unintelligible description, mental incompetency of deceased; and further alleged that Joseph M. Scarry, during his lifetime, had conveyed by warranty deed all of said real estate to appellant.

The question of jurisdiction was finally settled and determined, in our opinion, in another case which arose on the appointment of the administrator. Upon the hearing of the application for the appointment of the administrator, the appellant appeared and contested the appointment on the specific grounds that deceased, at the time of his death, was a nonresident, and owned no property in the territory. The probate court found against him, and he appealed to the district court of Yuma county, which court affirmed the judgment of the probate court. That judgment was not appealed from, and became final. It is res adjudicata of that question.

The court found all the other issues raised by appellant against him, and ordered the administrator to convey land to appellee upon the latter's performing the conditions of the contract of sale. Unless the court committed some prejudicial error in the admission or rejection of material evidence the findings being based upon conflicting evidence, we do not feel that we should disturb the findings.

The rule is that this court will presume that trial court correctly found the facts where there was "substantial legal evidence upon which it may be seen that the findings of fact in question, aided by every reasonable inference, could, with reason, have been based." 3 Cyc. 308.

While appellant contends...