Nowland v. Vinyard, Civil 3381

• Decision Date: 29 January 1934
• Docket Number: Civil 3381
• Citation: 43 Ariz. 27,29 P.2d 139
• Parties: BERNARD NOWLAND, C. L. DALTON and FRANK H. LYMAN, as Executors of the Estate of JOSEPH MONIHON, Deceased, Appellants and Cross-appellees, v. ANNA VINYARD, Executrix of the Estate of SUSAN MONIHON, Deceased, Appellee and Cross-appellant
• Court: Arizona Supreme Court

29 P.2d 139

43 Ariz. 27

BERNARD NOWLAND, C. L. DALTON and FRANK H. LYMAN, as Executors of the Estate of JOSEPH MONIHON, Deceased, Appellants and Cross-appellees, v. ANNA VINYARD, Executrix of the Estate of SUSAN MONIHON, Deceased, Appellee and Cross-appellant

Civil No. 3381

Supreme Court of Arizona

January 29, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Reversed and remanded with directions.

Mr. L J. Cox, for Cross-appellant.

No appearance for Cross-appellees.

OPINION

ROSS, C. J.

This appeal involves the court's rulings or orders settling the accounts of the executors of the estate of Joseph Monihon, who died in Phoenix, Arizona, testate, on January 15, 1928, leaving surviving him his wife but no issue. He left separate property and also his one-half in the community. In his will he gave certain specific legacies to his wife and a number of his relatives and provided that after the legacies were taken care of the residue should go to certain nieces and nephews. He named as executors of his last will Bernard Nowland, C. H. Dalton and Frank H. Lyman who represent his estate in this litigation. These executors took possession of both the separate and community property and proceeded to administer them together, but kept and made no separate account of the expenses and charges of administration as between the two. The appraised value of the separate estate was $27,600, and of both estates $145,411.23. All of the debts were treated as community debts.

The executors made their first annual report on October 2, 1930 in which was exhibited the cash receipts and also disbursements. This report contained an itemized statement of allowed claims, current expenses of administration, payments of taxes, paving assessments, legacies paid, etc. It stated that all approved and allowed claims against the estate had been paid, as also the expenses of the last illness of deceased and his funeral expenses.

The executors filed their second annual report on November 7 1932.

These two reports showed that the executors had collected on account of the community the sum of $58,073.90 in cash and on account of the separate estate $27,600, or all told $85,673.

Susan monihon died November 1, 1931. At that time her one-half interest in the community property was still in the possession and control of the executors of her husband's estate. They had not turned over to her her one-half interest in the community, although in their reports they had shown that all debts against the community had been paid and satisfied. Anna Vinyard was appointed as her executrix, and on November 10, 1932, she filed a petition asking that the court order turned over to or allotted to her one-half of the community, which request was resisted by the executors on the ground that the community estate was indebted to the separate estate of Joseph Monihon in the sum of $7,322, which had been advanced by the executors from the separate estate to pay obligations of the community. In her petition asking that one-half of the community property be turned over to her as the personal representative of Susan Monihon, she filed objections to certain items of the annual reports of the executors, asserting that certain expenses charged therein against the community should have been charged to Joseph Monihon's separate estate; that the fees and commissions charged by the executors were in excess of those allowed by law; that certain claims allowed against the community estate were not presented to the executors within the time allowed by law. She also asked that the court apportion the expenses of administration between the separate and community estate and charge the former with its proportion thereof. After a hearing the court ordered the executors to turn over to Vinyard one-half of the community, which after the payment of all the debts was of the approximate value of $100,000, but imposed the condition that she should execute a bond to the executors in the sum of $10,000 conditioned that she would pay "whenever required the portion of the estate of the said Susan Monihon, deceased, of its proportionate share of that certain claim found therein to be due the community estate of Joseph Monihon, deceased, to the sole and separate estate of Joseph Monihon, deceased, fixed at the sum of $7,322.00." The court further decided that the expenses of administration should be prorated as between the two estates, but postponed doing so until final settlement of said estate; otherwise the court overruled all objections to the second annual account of the executors.

The representatives of both estates appealed from the court's orders and rulings, but the executor's appeal was dismissed on motion of the executrix for want of prosecution or because of failure to have the record sent to this court as provided by law. The record was certified to this court upon the request of the executrix (cross-appellant) and the matter is before us on her appeal and briefs. The assignments of error are very numerous, and unfortunately the executors, although they might have appeared as cross-appellees after they were dismissed as appellants, have failed to do so and we have no assistance from them. The points involved are new in this jurisdiction, and any help to their proper solution would have been gladly accepted by the court.

It seems that when the marital relation is dissolved by death the law casts the duty upon the personal representative of the decedent to attend to the administration of the community property, at least for the purposes of liquidating the community debts. It requires that he make an inventory of and cause to be appraised all of the estate of the decedent including "the community estate" (section 3958, Rev. Code 1928), and that the inventory show "what portion of the property is community property and what portion is the separate property of the decedent" (section 3960). While it is provided that upon the death of a husband or wife one-half of the community property shall go to the survivor, it "passes charged with the debts against it" (section 985). Community debts are those contracted by the husband during the marriage and the community property is liable for them (section...