Roberson v. Teel

• Decision Date: 11 March 1929
• Docket Number: Civil 2783
• Citation: 275 P. 2,35 Ariz. 166
• Parties: WILLIAM R. ROBERSON, Administrator De Bonis Non With the Will Annexed of the Estate of GEORGE J. SMITH, Deceased; v. EMMA TEEL, L. B. MORRELL, and ADA SILLIMAN, Executors of the Estate of EDNA A. SMITH, Deceased, Appellees ERNEST T. SMITH and WILLIAM R. ROBERSON, Appellants,
• Court: Arizona Supreme Court

275 P. 2

35 Ariz. 166

WILLIAM R. ROBERSON, Administrator De Bonis Non With the Will Annexed of the Estate of GEORGE J. SMITH, Deceased;

ERNEST T. SMITH and WILLIAM R. ROBERSON, Appellants, v. EMMA TEEL, L. B. MORRELL, and ADA SILLIMAN, Executors of the Estate of EDNA A. SMITH, Deceased, Appellees

Civil No. 2783

Supreme Court of Arizona

March 11, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr Isaac Barth, for Appellants.

Messrs Phillips & Phillips, for Appellees.

OPINION

LOCKWOOD, C. J.

George J. Smith and Edna A. Smith intermarried in the year 1879. Each had children by a previous marriage, and there were two children born of the marriage. During the coverture Mr. and Mrs. Smith acquired approximately eighty acres of land near the city of Phoenix, it being admitted that this was community property. In the year 1908 Smith died, leaving a will which, so far as material, reads as follows:

"First I desire all my just debts fully paid.

"Second, I give, devise and bequeath to my beloved wife, Edna A. Smith, all my property both real and personal, to have and to hold unto her, my said wife, for and during the period of her natural lifetime, to use and enjoy the same in any manner she may see fit, and at her death whatsoever remains of the same, I give and devise and bequeath to my three children in the following manner, to wit: to Mary J. Sears, my daughter, an undivided one-fifth and to Ernest Troy Smith, my son and Pearl Edna Roberson, my daughter, share and share alike, the remaining four-fifths of my property.

"Third, I hereby nominate and appoint my beloved wife, Edna A. Smith, sole executrix of this my last will and testament and I direct that no bonds be required of her as such executrix, and I further give unto my said executrix full power and authority to sell any or all of my estate, both real and personal, and invest the same in any manner she may see fit, carefully managing the same and keeping account of the same so that my estate may be traced from time to time and at her death go to my children as hereinbefore provided."

This will was duly probated in Maricopa county, and Mrs. Smith qualified as executrix and continued to act as such until her death in 1927. An inventory was filed and notice to creditors duly given, and at at the time of the death of Mrs. Smith the community estate was in no manner indebted, but it had not been formally distributed by the court. During her lifetime she had sold a considerable portion of the realty, and at her death there remained some thirty-nine acres of land and a little over $13,000 in cash, the proceeds of the community estate. She left a will, devising her estate to various persons and appointing Emma Teel, L. B. Morrell and Ada Silliman as executors thereof. We shall hereafter refer to them as appellees.

William R. Roberson then applied for letters of administration de bonis non with the will annexed of the estate of Smith, which letters were duly issued to him. He made demand upon appellees for possession of all the property remaining in the hands of Mrs. Smith at her death, and, upon this demand being refused, brought suit against appellees, joining with him as party plaintiff Ernest T. Smith, a child of the marriage between George and Edna Smith. The case was heard before the court, and judgment rendered in favor of appellees, whereupon appellants have brought the matter before us for review.

In order that we determine the particular question at issue properly, it is necessary that we review some of the general principles of the law of Arizona in regard to community property and administration of estates. In the case of La Tourette v. La Tourette, 15 Ariz. 200, Ann. Cas. 1915B 70, 137 P. 426, we held that the object of the community property ownership is to make a beneficial cotenancy between the husband and wife of such property as either or both might acquire otherwise than by gift or exchange for separate property, and that such ownership, practically indissoluble during the existence of the marriage, generally involves a right of survivorship when the first owner who dies leaves no descendants, but otherwise resembles a tenancy in common. The husband, during his lifetime, is for many purposes the statutory agent or trustee of the community estate, but with his death this management and control ceases. The wife acquires, not her share of the estate, for that was already hers, but the management and control of that share.

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