In re Tamer's Estate

• Decision Date: 31 March 1919
• Docket Number: Civil 1607
• Citation: 179 P. 643,20 Ariz. 228
• Parties: In the Matter of the Estate of NASIF TAMER, Deceased. J. W. CLAYTON, Guardian Ad Litem for REGINALD FLAKE, JOSEPH TAMER, ABRAM TAMER and KEISER TAMER, Appellants, v. ELENA ELIA, Appellee
• Court: Arizona Supreme Court

179 P. 643

20 Ariz. 228

In the Matter of the Estate of NASIF TAMER, Deceased. J. W. CLAYTON, Guardian Ad Litem for REGINALD FLAKE, JOSEPH TAMER, ABRAM TAMER and KEISER TAMER, Appellants, v. ELENA ELIA, Appellee

Civil No. 1607

Supreme Court of Arizona

March 31, 1919

APPEAL from a judgment of the Superior Court of the county of Apache. George H. Crosby, Jr., Judge. Appeal dismissed.

Messrs Norris & Norris, Messrs. Jones & Jones, Mr. A. S. Gibbons and Mr. Isaac Barth, for Appellants.

Mr Fred W. Nelson, for Appellee.

OPINION

ROSS, J.

It appears that appellee, as a creditor of the estate of Nasif Tamer, presented to the administrator and the judge of probate her verified claim against the estate for $6,680. A hearing thereon, at which evidence to support the claim was submitted by claimant, and evidence to defeat the claim was submitted by appellants "J. W. Clayton, guardian ad litem for Reginald Flake and Joseph Tamer, Abram Tamer and Keiser Tamer," was had. Whereupon "it was by the court ordered . . . that the claim of Elena Elia for the return of personal property be allowed in the amount of six thousand six hundred and eighty dollars ($6,680)." It is from this judgment and order overruling motion for a new trial that the appeal is taken by the persons above described as appellants.

Under the law, the appeal will have to be dismissed. There is nothing in the records showing that appellants are parties in interest, or that they are aggrieved. But, assuming that they are heirs of Nasif Tamer and entitled to a distributive share of his estate, the law does not give them the right to appear and contest the allowance of claims by the administrator or judge in probate in the first instance or upon their original presentation. The provisions of the law for the presentation of claims against an estate and the allowance or rejection thereof, as contained in sections 879 to 903, inclusive Civil Code, do not provide for a hearing thereon at which the heirs may be heard as contestants. The act of approval or rejection is ex parte. Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237. If the claim is rejected, the claimant's remedy to establish his claim against the estate is by civil action in the superior court. But if it be approved, the heirs of the estate are not without remedy. "Any person interested may appear and, by objection in writing, contest any account or statement" contained in the administrator's current accounts (section 999, Civil Code), or upon his final settlement and accounting (section 1011, Id.).

The allowance of claims is "not binding and conclusive against the heirs because they were not parties to it. They had therefore the right to question the allowance at the settlement of the estate." In re Swain, 67 Cal. 637, 8 P. 497; Wise v. Williams, 88 Cal. 30, 25 P. 1064; Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237.

The administrator does not appeal. The property involved was personal property and personal assets of the estate. Such effects of an estate are solely in the keeping and protection of the personal representative.

"The title of the executor or administrator, as representative, extends so completely to all personal property left by the decedent as to exclude creditors, legatees, and all others interested in the estate. They cannot follow such property specifically into the hands of others, much less dispose of it; but the executor or adminstrator is the only true representative thereof that the law will regard. The legal and equitable title to all the personal property of the deceased, including choses in action and incorporeal rights vests in fact in the executor or administrator, as against all others, during the suitable period for administration, and he holds this property as a trustee and proper representative of all parties interested therein." Paragraph 239, Schouler's Executors and Administrators.

The heirs of the decedent have no standing in the courts in litigation affecting the personal assets of the estate. The may not prosecute appeals or writs of error when the subject matter is the personal...