Johnson v. Superior Court, 5168

• Decision Date: 23 November 1948
• Docket Number: 5168
• Parties: JOHNSON et al. v. SUPERIOR COURT IN AND FOR MARICOPA COUNTY et al
• Court: Arizona Supreme Court

199 P.2d 827

68 Ariz. 68

JOHNSON et al. v. SUPERIOR COURT IN AND FOR MARICOPA COUNTY et al

No. 5168

Supreme Court of Arizona

November 23, 1948

Original proceeding in mandamus by Janice LaPrade Johnson and others against the Superior Court of the State of Arizona, in and for the County of Maricopa, and Thomas J. Croaff, one of the judges of said Superior Court, to compel respondent judge to fix and determine amount of, and to approve a supersedeas bond on appeal.

Peremptory writ issued as prayed.

Jennings Strouss, Salmon & Trask, of Phoenix, for petitioners.

Thomas J. Croaff, in pro. per., H. S. McCluskey, and J. H. Morgan both of Phoenix, for respondents.

Stanford, C. J., Udall, J., and C. C. Faires, Superior Judge, concur. La Prade, J., being disqualified, the Honorable C. C. Faires, Judge of the Superior Court of Gila County, was called to sit in his stead.

OPINION

PER CURIAM

This is an original proceeding in mandamus initiated by the petitioners against the Superior Court of Maricopa County and the Honorable Thomas J. Croaff, one of the judges thereof, to compel respondent to fix and determine the amount of, and to approve, a supersedeas bond on appeal. The alternative writ of mandamus was issued and the respondent judge has made his return and answer.

The facts necessary to a determination of this matter are these: One Katherine Pius, the record owner and in possession of certain real and personal property, did on October 5, 1940, convey that property to the Phoenix Title and Trust Company in trust for certain purposes. The Title Company had managed this property from the date the trust was created until January 8, 1948, when Katherine Pius died intestate. Notwithstanding the provisions of said trust, one Pierce F. Pius, a beneficiary named therein, and for whose support the trustor had made provision, made claim to all of the property embraced within the trust upon the ground that he, as the surviving husband of the trustor, was entitled thereto. Whereupon the trustee, on March 3, 1948, filed a "complaint in interpleader and for instructions" in the Superior Court of Maricopa County, with all of the persons named as beneficiaries in the trust agreement (among whom are these petitioners) being made parties defendant. The complaint asked that all of the defendants be required to appear and set forth their interest in the matter and that the plaintiff be instructed concerning the execution of the trust. All of the beneficiaries who filed answers, except Pierce F. Pius, admitted the execution of the trust, asserted its validity, and prayed that its provisions be enforced according to its terms. Pierce F. Pius, however, while admitting the execution of the trust, denied its validity upon the ground that the settlor had not been mentally competent when the instrument was executed, and upon the further ground that the property was community property and that he had not joined in the transfers to the trustee. He also prayed that administration be had upon the assets held by the Title Company, and that he be granted a family allowance of $ 300 per month from the corpus of the trust pending the determination of the action. Obviously administration of the settlor's estate could only be had after title and ownership of the property in question had been first determined and then by strictly following the probate law and procedure set out in Chapter 38, A.C.A.1939, relative to decedents' estates. Nevertheless, as a preliminary matter, the respondent proceeded to a hearing on the husband's prayer for a family allowance, at the conclusion of which the court, on August 5, 1948, entered the following order:

"Order, plaintiff, as Trustee, is authorized and directed to pay defendant Pierce F. Pius out of the Trust Estate, the sum of two hundred dollars ($ 200.00) each month, on the 1st of each month, beginning August 1, 1948, and continuing until the further order of this Court, as and for support of said Pierce F. Pius, pending this action."

Petitioners gave a timely notice of appeal from this order and also made application under the provisions of Sec. 21-1809, A.C.A.1939, for a stay pending appeal and for the fixing of a supersedeas bond. The Court denied the application and refused to fix and determine the amount of such a bond or to approve same, whereupon the instant suit was brought by these remaindermen.

In order to determine whether a peremptory writ of mandamus should issue against the respondents it is necessary for us to decide three principal questions: (1) Did the petitioners have a sufficient interest in the matter to entitle them to contest the order granting a family allowance to Pierce F. Pius, and may they bring this action of mandamus? (2) Is the order of the court of August 5, 1948, a reviewable order from which an appeal may be taken? And (3) do the petitioners have any other plain, speedy or adequate remedy at law so as to preclude them from maintaining this action?

While neither the legality of the order appealed from nor the validity of the trust agreement itself is now before us, we must assume for the purpose of determining the petitioners' rights in this mandamus matter that the trust in question is valid and subsisting.

In determining the first question it is unnecessary to make a searching and detailed analysis of this lengthy trust indenture, nor need we determine the precise nature of the beneficial property interest of these petitioners in the trust res; suffice it to say that our study convinces us that they do have a sufficient remainder interest, whether vested or contingent in character, to contest the order of the court granting the allowance by asserting the validity of the trust agreement. Any wrongful disposal of the corpus or even the income of the trust res will injuriously affect the interest of the remaindermen as their interest, the enjoyment of which is postponed, is in all of the property subject to the trust which might remain after the deaths of the life beneficiaries, and this interest will take effect in possession immediately on the determination of the preceding life interests. Nor is the present interest of these petitioners as beneficiaries less real by virtue of the fact that the amount of the estate remaining undisposed of at the expiration of the particular estate is uncertain. 31 C.J.S., Estates, § 69, page 90. During the period of a life beneficiary's interest the ultimate beneficiaries have sufficient interest to protect the trust fund and see that the trust is properly executed. 65 C.J., Trusts, Sec. 289; Hunt v. Hunt, 124 Mich. 502, 507, 83 N.W. 371, 373. We quote from the case of Roberts v. Michigan Trust Co., 273 Mich. 91, 262 N.W. 744, 749:

"In Lewin, Trusts (13th Ed.) p. 874, the correct rule is stated as follows: 'And generally a cestui que trust, who can allege an existing interest, however minute or remote, may, upon reasonable cause shown, apply to the court to have his interest properly secured.'"

See also Hall v. M. B. O'Reilly Realty & Investment Co., 306 Mo. 182, 267 S.W. 407; Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550; Withington v. Shay, 47 Cal.App.2d 68, 117 P.2d 415, 119 P.2d 1; Waurika Oil Ass'n v. Ellis, Tex.Civ.App. 1923, 254 S.W. 1032. As to beneficiaries being parties aggrieved, see 4 C.J.S., Appeal and Error, §§ 183 and 204b.

We conclude, as to this first question, that the petitioners, as beneficiaries under the trust here involved were "parties aggrieved" within the provisions of Sec. 21-1701, A.C.A.1939, and the interpretation thereof in Burmister v. City of Prescott, 38 Ariz. 66, 297 P. 443, and were therefore entitled to appeal from the order hereinbefore set forth, and that they were also "parties beneficially interested" so as to entitle them to maintain this mandamus action under Sec. 28-201, A.C.A.1939. See Barry v. Phoenix Union High School, 67 Ariz. 384, 197 P.2d 533.

We now consider the appealability of the order in question. Petitioners contend that it is appealable under any one of several subdivisions of Sec. 21-1702, A.C.A.1939, particularly subsection 1, "From a final judgment entered in an action or special proceeding commenced in a superior court * * *." It is manifest that the order of August 5, 1948, with each payment made thereunder, effectually and irrevocably disposes of a portion of the res which is the subject of the action. The moneys thus paid pass beyond the control of the court forever, and hence such order is a final determination of the particular matter even though it reads "* * * until the further order of this Court * * * pending this action." It is a fait accompli.

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...