Rogers, In re
| Decision Date | 30 March 1966 |
| Docket Number | No. 8649,8649 |
| Parties | In the Matter of a Member of the State Bar of Arizona, Martin S. ROGERS, Respondent. |
| Court | Arizona Supreme Court |
J. Mercer Johnson, Tucson, for respondent.
Thomas Chandler, Tucson, for State Bar.
Formal charges were filed against Martin S. Rogers, hereinafter referred to as respondent, to the effect that he had violated the Canons of Professional Ethics of an attorney at law.
The charges upon which the board of governors found against the respondent grew out of the handling of the estate of Olivia M. Kuhlmann, deceased, while he was executor. The board of governors found that:
Count One, he had purchased from himself individually a certain 1957 Ford automobile for the sum of $825.00, and that said sum was greatly in excess of the fair market value of the automobile, contrary to Canon 6 and Canon 11 of the canons of professional ethics;
Count Two, respondent paid to his son and daughter-in-law $300 a month for caring for the dog named 'Star,' said sum being exorbitant and excessive, and that thereby respondent had used his position as executor of the estate for personal gain and benefit of his family. He had purchased a 1963 Pontiac Bonneville station wagon for the sum of $5,277.93 for the alleged purpose of transporting the dog, but that it was used by himself and his family, which amounted to misconduct and constituted a violation of Canon 11 of the canons of professional ethics; that he purchased a washing machine for the sum of.$418.01 for the alleged purpose of washing the bed clothing of the dog 'Star' which was unreasonable and unnecessary; that purchasing a dog house and fence at a cost of $359.77 was also unreasonable and unnecessary; and that while these charges would not, standing alone, amount to misconduct on the part of respondent, they were evidence of his mishandling of the affairs of the estate.
Count Three involved the conduct of the respondent in permitting and inviting publicity from certain television outlets, and Count Four was in regard to his conduct at hearings before the court commissioner. However, the board of governors found that the evidence in regard to these two counts was insufficient to find the respondent guilty of misconduct.
The board of governors, in its findings, recommended that respondent be suspended from the practice of law for a period of two years.
Respondent is 56 years of age, has been a resident of the community of Tucson, Arizona, for some 36 years, and is married and the father of three grown children. He has had considerable business experience, having acquired and conducted a college book store while attending the University of Arizona. In 1942 he was admitted to the bar, and has practiced law in the city of Tucson ever since that time. During this period he has bought and sold real estate, and to some extent dealt in the buying and selling of automobiles.
Respondent testified that in July 1962 Olivia M. Kuhlmann, now deceased, consulted him for the purpose of preparing a will, and gave his version of the transaction. She had had considerable disappointment in life, having lost her husband, was disappointed in not having a family of her own, and was not getting along very well with her brother and sister. She stated that her life 'had been a very sad and lonely one,' and that she had no friends. She expressed her desire to 'see that those dogs were adequately cared for.' There were no relatives very friendly to her. At that time she had two dogs--one of which died before these proceedings were instituted--and she was anxious to provide for their care after her demise. She had told respondent that she was not in very good health, and that the doctor had told her that she had but a very short time to live. After going over her situation in detail, he prepared a will for her, in which she provided for the care of the dogs; and, on the advice of respondent, she left the residue of her estate to some friends--Sol Rosenbloom, Mayme Mullen, and William Walsh. He called the three friends the 'straw men,' placed in the will in order to provide for residuary legatees. He said that, in effect, she wanted her property to go for the care of the dogs. She returned to his office a second time for the purpose of making the wording stronger for the care of the dogs.
It was the second will which was admitted for probate. Paragraph seven of the will reads as follows:
'I direct my executor to make necessary arrangements for the permanent care of my two dogs, a Chow champion thoroughbred, about ten years old, and a Weimanier (sic) thoroughbred, about five years old, and I direct that sufficient funds be paid for their care within the discretion of my executor.'
This will was dated the 11th of January 1963, and was admitted in probate on February 25, 1963. The estate was appraised at $62,885.03. Respondent, who was named as executor in the will, was appointed to that position, and filed his first account and report on or about the 20th day of June 1963. There were objections filed to the account and report. The court authorized the payment of certain items, adjusted and rejected others, as follows:
Voucher Petition
No. Request Allowed
----------- --------- ----------
6 3-26-63 - Broadway Animal Hospital, $ 75.00 $ 75.00
board for dogs
7 7- 4-63 - Broadway Animal Hospital
board for dogs 86.00 86.00
14 4- 5-63 - Maurine R. Rogers, care of
STAR for April 100.00 20.00
15 4- 5-63 - Sears, washer 418.01 disallowed
17 4-14-63 - Quebedeaux Pontiac
Station Wagon, trans. 4,427.68 withdrawn
18 4-18-63 - Richard M. Rogers, care of
STAR, April 200.00 40.00
19 4-27-63 - Paul H. Jones, Inc
insurance for car 132.60 withdrawn
22 4-30-63 - Martin S. Rogers, Trade-in
of 1957 Ford 825.00 withdrawn
23 5-10-63 - Mike Putter, dog fence and
house 359.77 135.00
24 5-10-63 - Richard M. Rigers, care of
STAR, May 300.00 60.00
25 6-25-63 - Broadway Animal Hospital,
vet. care of dog 22.00 22.00
27 6- 5-63 - Pima County, dog license 3.00 3.00
28 6-17-63 - Richard M. Rigers, care of
STAR, June 300.00 60.00
29 7- 2-63 - Richard M. Rogers (2nd
Account) care of STAR,
July, paid $300.00 75.30 75.30
----------
Total Allowed Executor for Dog Care $ 576.30
Respondent contended that the provision of the will directing that sufficient funds be paid for the care of the dogs within the discretion of her executor gave him full authority in the exercise of his discretion to expend the money for the items questioned in his report. He testified in the hearing that Mrs. Kuhlmann, deceased, had told him that she wanted him or his family to care for the dogs, and she wanted the money expended for this purpose. We do not deem it necessary to go into detail in regard to this testimony. It will suffice to say that the testimony indicates Mrs. Kuhlmann, deceased, being lonely in life, had given her love and affection to these dogs, and that they had in some measure filled a gap by returning affection to her. This is made understandable by the many books and poems which have been written in regard to the faithfulness and devotion of dogs to their masters.
During the course of the hearing on the account and report respondent resigned as executor, and an administrator with will annexed de bonis non of the estate of Olivia M. Kuhlmann was appointed. One of the dogs had died shortly after the death of decedent. The court entered an order giving the care and custody of the remaining dog, 'Star,' to the Hon. Herbert F. Krucker, judge of the superior court of Pima County, Arizona, and approved expenditures to Judge Krucker in the sum of $5,309.50, which sum included $4,000 for the permanent care of the dog, and $500 for future medical expense for the dog.
Respondent promptly filed an account report setting forth the expenses which he contended were justifiable and within his discretion. We do not deem it necessary to discuss in detail such items as the purchase of the washing machine, the building of the fence and the dog house, and the equipment which was built on the property owned by respondent but occupied by his son. There was a conflict in the testimony in regard to the necessity of these items for the care of the dog. They were submitted to the court in an account and report for approval. The court reduced the amount of the sum requested for allowance for the fence from $359.77 to $135.00, but allowed payment for a fence for the same dog of $190.10 for additional fence, and $33.80 for a dog house to Judge Krucker. So it is evident that the court found that it was desirable to have a fence and a dog house for the care of the dog Star, and in our judgment there was nothing dishonest or in violation of the...
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