Sherrill's Estate, In re

• Decision Date: 12 July 1962
• Docket Number: No. 7202,7202
• Citation: 373 P.2d 353,92 Ariz. 39
• Parties: In the Matter of the ESTATE of Joseph L. SHERRILL, Deceased. Luetta RICE, Appellant, v. Florence R. GROSECLOSE, Appellee.
• Court: Arizona Supreme Court

Page 353

373 P.2d 353

92 Ariz. 39

In the Matter of the ESTATE of Joseph L. SHERRILL, Deceased.

Luetta RICE, Appellant, v. Florence R. GROSECLOSE, Appellee.

No. 7202.

Supreme Court of Arizona, In Banc.

July 12, 1962.

T. J. Mahoney, Florence, Montgomery & Montgomery, Hobart, Okl. Hicks & Fancher, Hollis, Okl., for appellant.

Raymond E. Peterson, Casa Grande, Tolbert & Gillespie, Hobart, Okl., Irving Vincent, Florence, for appellee.

BERNSTEIN, Chief Justice.

Florence Rebecca Groseclose, appellee, on March 7, 1960, presented to the Pinal County Superior Court a petition to probate the holographic will of J. L. Sherrill, deceased, and asked that she be appointed administratrix with will annexed. Thereafter, on April 18, 1960, Luetta Gifford Rice, appellant, appeared and contested probate of the will on the grounds that it was not the last will and testament of decedent and that decedent was a resident of Oklahoma and left no estate in Pinal County. The contestant alleged that subsequent to the holographic will, decedent executed a formal will which was filed for probate in Oklahoma on March 15, 1960. However, appellant appeared only as an heir of decedent and not as the proponent of another will or as personal representative of an estate pending in Oklahoma.

Appellant did not propose a subsequent will admitted to probate in Oklahoma and expressly declined to offer the claimed later will for probate. Her position was stated by her counsel in the lower court as follows:

'If this court has jurisdiction, and that is to be the ruling, then, Judge, the contestant excepts, and we don't intend to, in any way, enter our appearances on the merits of any will at this time; but will reserve the right after, or in case I should say, or in case your Honor should admit the will now offered for probate to effect an appeal to the jurisdictional question. We are not entering any appearance, and don't intend to enter any contest of the will.'

No further appearance was made by appellant, nor did she contest the will on the merits.

The trial court made a finding that 'the decedent at the time of his death was a resident of Pinal County, Arizona', admitted the will to probate and appointed appellee as administratrix with will annexed. Certain facts were presented to the trial court on stipulation: Decedent, a long-time resident of Oklahoma, came to Casa Grande, Arizona in 1956 and lived with appellee, a niece. At all time described there was real property in Oklahoma and New Mexico and personal property consisting of cash and a stamp collection in Arizona. In October 1957, appellee was appointed decedent's guardian by the Pinal County Superior Court. Thereafter in December 1957, decedent was hospitalized at Ft. Whipple Veterans Hospital, and a month later left the hospital to stay at Mesa, Arizona with appellant, also a niece. In May 1958 he returned to Oklahoma to stay with other relatives and died in Oklahoma two years later. During this latter period one Place Montgomery was appointed guardian of decedent by the Oklahoma court with the knowledge of and without contest by appellee, the Arizona guardian. It was contemplated that the Arizona guardianship would be terminated, but this was never done. Decedent was the recipient of a Veterans Administration pension which was paid to appellee as Arizona guardian during the periods described and appellee paid decedent's expenses in Oklahoma from this fund. Appellant further made an offer of proof of events upon which she bases a contention that decedent upon his return to Oklahoma was competent to and did form an intention to reside there permanently.

This appeal is founded on the ground that on her offer of proof decedent was in fact domiciled in Oklahoma and that only the state of domicile has jurisdiction to probate the last will and testament of a deceased person. While domicile alone is sufficient to confer jurisdiction to probate a will, Valley Nat'l Bank of Phoenix v. Siebrand, 74 Ariz. 54, 243 P.2d 771, it is not a required element in all cases. The power to grant probate of a will of a nonresident testator exists even though the will has not been presented for probate in the state of the domicile so long as there are assets within the jurisdiction to be administered. In re Holden's Estate, 110 Vt. 60, 1 A.2d 721, 119 A.L.R. 487; Annot. 119 A.L.R. 491; 57 Am.Jur.Wills, § 767; Restatement, Conflict of Laws, §§ 467 and 469; 95 C.J.S. Wills, § 352c. Cf. Smith v. Normart, 51 Ariz. 134, 75 P.2d 38, 114 A.L.R. 1456. This is the rule even though the only property within the jurisdiction is personalty, Wright v. Macomber, 239 Mass. 98, 131 N.E. 480. Such jurisdiction is inherent and exists independently of statute, In re Holden's Estate, supra. Arizona furthermore has the following statute, A.R.S. § 14-301 which provides:

'A. Wills shall be proved and letters testamentary or of administration granted:

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'3. In the county in which any part of the estate is found, the decedent having died without the state and not being a resident of the state at the time of his death.'

Our statute was adopted from that of California, West's Ann.Prob.Code, § 301, which has been construed to permit the California court to assume jurisdiction over the estate in California of a decedent although the legal residence was found to be New York. In re Glassford's Estate, 114 Cal.App.2d 181, 249 P.2d 908, 34 A.L.R.2d 1259.

The trial court made no finding as to whether decedent did or did not leave property in Pinal County. However the petition for probate alleges decedent left an estate in Arizona consisting of cash and a stamp collection in the aggregate value of $6,500.00, and the court set bond in that amount. The stipulation referred to shows that appellee, 'guardian of the incompetent in Pinal County, Arizona, paid monthly support to Rufus and Ralph Sherrill for the support and maintenance of the ward up to the date of his death.' Also, appellant's offer of proof indicates that after removal to Oklahoma, decedent retained property in the form of cash in Arizona. Thus, the record...