Isaak v. Superior Court In and For Santa Cruz County
| Decision Date | 18 July 1968 |
| Docket Number | No. 9216,9216 |
| Citation | 443 P.2d 911,103 Ariz. 445 |
| Parties | Eugene ISAAK, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF SANTA CRUZ; and the Honorable Gordon Farley, a Judge thereof, and Southern Arizona Bank & Trust Company, Respondents; SOUTHERN ARIZONA BANK & TRUST COMPANY, Real Party in Interest. |
| Court | Arizona Supreme Court |
Dunseath, Stubbs & Burch, Tucson, for petitioner.
Karam & Martin, Nogales, for respondents.
In a hearing before us, we granted the petition of Eugene Isaak for a writ of certiorari. Whether a co-executor named in a will, incompetent to serve solely because he is not a bona fide resident of this state, has the right to nominate an administrator with will annexed in the principal issue of the case.
The facts are as follows: Blenda H. Fast died testate on September 8, 1967, leaving an estate valued at about $500,000.00. Named as co-executors in her will were Jerome W. Sinsheimer, an attorney practicing in New York, his son Warren J. Sinsheimer, named as successor executor, and the Southern Arizona Bank and Trust Company. Jerome Sinsheimer had drafted the will in 1963 for the deceased, a long time client of his. At that time the Bank had been forwarded a copy of the will and it in turn indicated a willingness to act in the capacity of co-executor and also that the will conformed with Arizona law and contained the essentials necessary for a proper probate administration and trusteeship.
Immediately following testatrix's death, Southern Arizona Bank and Trust Company advised Jerome W. Sinsheimer that there was some question regarding his competency to serve as co-executor, and on September 27, 1967, it filed a petition for probate of will and petitioned the court to appoint it sole executor. Thereafter, Jerome W. Sinsheimer, Warren J. Sinsheimer and Eugene Isaak, on October 19, 1967 filed objections to the appointment of the Bank in any capacity other than as co-executor, and petitioned the court to appoint Eugene Isaak as administrator with will annexed so that he could serve as co-fiduciary with the Bank. The Sinsheimers then filed a nomination and appointment of fiduciary in which they represented that they are not bona fide residents of the state of Arizona and petitioned the court to appoint Eugene Isaak, in whom they reposed trust and confidence, to serve in their place. Eugene Isaak, as said nominee, filed a petition for letters of administration with will annexed on October 27, 1967.
Objections were filed by the Bank to the petitions and on October 30, 1967, pursuant to oral stipulation, the court admitted the will of deceased to probate and appointed Southern Arizona Bank and Trust Company co-executor without prejudice to the consideration by the court at a later date of the petition of Eugene Isaak for letters of administration with will annexed. Thereafter, the petition of Eugene Isaak was denied and the objections of the Bank were sustained. A motion for new trial subsequently filed by Eugene Isaak, as nominee, was denied, whereby a petition for writ of certiorari was granted by this Court.
In prosecuting this writ, petitioner complains that the trial court ignored the real intent of the Last Will and Testament of testatrix. It is argued (1) that the will as a whole gave broad powers to the executor, powers which would only have been given someone in whom testatrix placed confidence, and (2) that the intent of the testatrix, as shown by her will, was to utilize the services of co-fiduciaries in the administration of her estate.
We are not at issue over the proposition advanced by petitioner that the will should be construed to give effect to the intent of the testator. See, In re Estate of Daley, 6 Ariz.App. 443, 433 P.2d 296 (1967); In re Estate of Harber, 99 Ariz. 323, 409 P.2d 31 (1965); Newhall v. McGill, 69 Ariz. 259, 212 P.2d 764 (1949). We are not so readily persuaded, however, to petitioner's position with respect to what the intention of the testatrix was. However true it may be that the testatrix had confidence in Jerome W. Sinsheimer, the same cannot be said of his nominee, Eugene Isaak, without presupposing that Mr. Isaak would consult on a regular basis with Mr. Sinsheimer. Even then, it must be remembered that Eugene Isaak, if appointed a co-fiduciary, would be accountable to the court and not to Jerome W. Sinsheimer.
A reading of the testatrix's will will not in any particular disclose that she intended that either of the Sinsheimers nominate or designate an administrator or executor to be named in their place should they desire not to act as such for any reason, or in the event they were incompetent to act. The mere fact that testatrix made provision for Warren J. Sinsheimer, the son of Jerome W. Sinsheimer, to serve as successor executor, but made no further provision if neither could act creates an opposite inference, i.e., that they were not intended to have the power to nominate.
Concluding that the intent of the testatrix, as ascertained from the words of her will, did not require that the lower court issue letters of administration to Eugene Isaak, the more difficult question is whether Jerome W. Sinsheimer, incompetent to serve because he is not a resident of the state of Arizona, has the right to nominate a co-fiduciary to serve in his stead as administrator with will annexed. After making our own independent research of the authorities and statutes involved, we are not convinced the matter is as matter of fact as petitioner would have us believe. The issue is compounded with the inclusion of the additional fact that notwithstanding the Sinsheimer's incompetency to act, there remains an executor, qualified and competent to act.
The argument is advanced by petitioner that we impliedly ruled that an executor has the power to nominate in Welch v. Clampitt, 60 Ariz. 215, 134 P.2d 701 (1943). In that case the primary issue was whether the deceased left a valid will. If the will was sustained, certain legacies would lessen the amount going to the heirs at law. Accordingly, the heirs at law, one of whom was named as executrix in the contested will, claimed that the deceased died intestate. At the same time, the named executrix claimed the right to nominate an administrator with will annexed. On appeal, this Court said that since the named executrix contended that the decedent died intestate, it was not error or an abuse of discretion for the lower court to refuse to appoint the person nominated. This was not an expression on our part that a named executor would otherwise have the right to nominate. Rather it was an acknowledgment that the two positions were inconsistent. The named executrix could not claim that the deceased died intestate (without a will), and at the same time be named as executrix. Furthermore, even though she may have had a statutory reference to serve as administrator had the validity of the will not been sustained, her delay in petitioning for letters acted as a renunciation of the right.
Among the cases cited by petitioner were In re Keller's Will, 32 Misc.2d 1041, 223 N.Y.S.2d 878, 880 (1962), and Dennis v. Dennis, 323 Ill.App. 328, 55 N.E.2d 527 (Ill.1944). Both of these cases can be distinguished from the case at bar and do not support the legal proposition sought to be advanced by petitioner. Where the Court has respected the nomination of a named Executor, it has done so either by reason of special considerations before it, or by statutory provision. In re Dolenty's Estate, 53 Mont. 33, 161 P. 524 (1916).
Turning to our own probate code, petitioner urges that we apply A.R.S. § 14--419 to both intestate and testate estates. The section reads:
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