Wiswall's Estate, In re

• Decision Date: 28 January 1970
• Docket Number: No. 2,CA-CIV,2
• Citation: 464 P.2d 634,11 Ariz.App. 314
• Parties: In the Matter of the ESTATE of Mary Greene WISWALL, aka Mary G. Wiswall, Deceased. Eva Greene DAY and Florence Greene Sharp, Appellants, v. George A. WISWALL, Executor of the Estate of Mary Greene Wiswall, aka Mary G. Wiswall, deceased, Charles Harrison Greene, C. Kirk Greene, Anita Greene, Special Administratrix of the Estate of William Cornell Greene, Peter Sturdivant, and Tallentyre Sturdivant, Appellees. 646.
• Court: Arizona Court of Appeals

Page 634

464 P.2d 634

11 Ariz.App. 314

In the Matter of the ESTATE of Mary Greene WISWALL, aka Mary G. Wiswall, Deceased.

Eva Greene DAY and Florence Greene Sharp, Appellants, v. George A. WISWALL, Executor of the Estate of Mary Greene Wiswall, aka Mary G. Wiswall, deceased, Charles Harrison Greene, C. Kirk Greene, Anita Greene, Special Administratrix of the Estate of William Cornell Greene, Peter Sturdivant, and Tallentyre Sturdivant, Appellees.

No. 2 CA-CIV 646.

Court of Appeals of Arizona, Division 2.

Jan. 28, 1970.

Rehearing Denied April 1, 1970.

Review Denied April 28, 1970.

Fennemore, Craig, von Ammon & Udall, by John J. O'Connor, III, Robert P. Robinson and Michael Preston Green, Phoenix, DeConcini & McDonald, by J. Wm. Brammer, Jr., and John R. McDonald, Tucson, for appellants

Gentry, McNulty, Toci & Borowiec, by James F. McNulty, Jr., and Philip E. Toci, Bisbee, Favour & Quail, by Keith F. Quail [11 Ariz.App. 317]

and John M. Favour, Prescott, Polley & Talmadge, by Wesley E. Polley, Bisbee, for appellees

HOWARD, Chief Judge.

This appeal challenges an order approving the fifteenth and final accounting and directing distribution in the Estate of Mary Greene Wiswall, which has been plagued by disharmony and litigation since its inception.

There are two appellants, and they appeal on entirely different grounds. The appellant Florence Green Sharp challenges a number of disbursements made from the estate to persons who made claims for fees and expenses at the final accounting. It is necessary to consider her appeal at some length. The appellant Eva Greene Day appeals from denial of her motion to sequester estate assets prior to ordering final distribution. We can and will first briefly dispose of this latter appeal.

Eva Greene Day moved in the probate court, in reliance upon A.R.S. § 14--690, Subdivision A, ¹ to sequester one-seventh of the assets of the state to abide the outcome of a civil action filed by her in the superior court to enforce a judgment rendered in the State of California in her favor and against several persons officially and beneficially interested in the estate. The judgment, which found and decreed enforcement of an agreement on the part of the decedent to make a will disposing of a certain portion of her property to Eva Greene Day, was affirmed by the Supreme Court of California in Day v. Greene, 59 Cal.2d 404, 29 Cal.Rptr. 785, 380 P.2d 385, 94 A.L.R.2d 802 (1963).

Eva Greene Day's contention is without merit in view of our opinion released this day in the case of Day & Wiswall, 11 Ariz.App. 306, 464 P.2d 626, wherein we held that the court in California had no jurisdiction over the Arizona executors, but only over the individual beneficiaries. There is therefore no 'claim' against the estate and no right to sequester assets.

We proceed to the appeal of Florence Greene Sharp, hereinafter called appellant. By the will, admitted to probate in the lower court, the residue of decedent's estate was divided into six equal portions, one with respect to each surviving natural child. Three children, Frank Townsend Greene, Clarence Kirk Greene, and Charles Harrison Greene each received a one-sixth portion outright. Life income trusts of the three remaining one-sixth portions were established in favor of appellant, Mary Virginia Greene Sturdivant, and William Cornell Greene (and certain other persons bearing a relationship to him), with the remainders of each trust to be distributed at the death of the life beneficiaries to the children of each.

Decedent left extensive property, which became the subject of administration proceedings in Mexico, Arizona and California. The domiciliary administration was in Mexico but the importance of the Arizona administration was enhanced by the fact that the will was invalid in Mexico, and by the fact that a great deal of decedent's property or at least some incidents of its ownership were located here. Four persons were named in the will to act as both co-executors and trustees of the three testamentary trusts. They were an attorney now deceased, Clarence Kirk Greene, Charles Harrison Greene, and George A. Wiswall, a stepson of decedent. Clarence Kirk Greene and Charles Harrison Greene served as executor and co-executor for relatively brief periods in the early years of the Arizona estate. George A. Wiswall served as sole executor thereafter. At the time of notice of settlement of the final accounting, all four designated testamentary trustees had indicated formally or informally that they would not accept the office of trustee, and the petition for settlement referred to All dates hereinafter set forth are in 1968, unless otherwise indicated. On July 2, the attorneys for the executor filed the executor's 'FIFTEENTH AND FINAL ACCOUNTING AND PETITION FOR DISTRIBUTION,' listing estate assets at slightly over $2,000,000.00 as of June 30. At the same time, claims were filed by both the executor and his attorneys for compensation for extraordinary services. The executor claimed compensation for extraordinary services in the amount of $46,601.50 over and above the amount of $106,595.00 claimed as the statutory executor's fee. ² The attorneys claimed compensation for extraordinary services in the amount of $83,226.50 over and above a similar sum of $106,595.00.

the necessity of nominating a suitable substitute.

Settlement of the accounting was set for hearing on July 15. A copy of the accounting and petition and notice of hearing on settlement were mailed to appellant. On the date set for hearing, the court on its own motion continued the matter until July 30. The pertinent minute entry also provided that:

'Counsel will have until 5 p.m. July 25, 1968, for filing and serving counsel with any and all objections to said accounting and any matters to be presented to the Court at this hearing.' (Emphasis added.)

At the bottom of this minute entry there is an inscription indicating that a copy of it was sent (or was intended to be sent) to several persons, including appellant. There is no suggestion from appellant or anyone else that copies were not so sent, or that a copy was not received by appellant.

On July 24, appellant, reciting that she was 'appearing in propria persona,' filed her 'OBJECTION TO FIFTEENTH AND FINAL ACCOUNTING AND PETITION FOR EXTRAORDINARY FEES,' in which she objected to the inclusion of certain 'Mexican assets' in the Arizona estate, and also to the requests for extraordinary compensation, on the ground that there was no adequate breakdown of extraordinary as opposed to ordinary services, or services which were merely duplicative of services performed by attorneys for various individual beneficiaries of the estate.

On the same date, July 24, appellant also filed a 'MOTION FOR CONTINUANCE TO PROVIDE TIME FOR DEPOSITION AND/OR WRITTEN INTERROGATORIES.' By this motion appellant sought a continuance of the hearing for a period of ninety days from July 30, on the grounds that her attorney in all matters affecting the estate for the preceding ten years had died on June 3; that she had been unable to find other counsel to represent her; and that the time prior to hearing was insufficient to allow any counsel to represent her adequately.

Appellant filed no notice of hearing on her motion. By minute entry on July 24, the court ordered on its own motion that the motion for continuance be set for hearing on July 29, at 10 a.m. An inscription at the bottom of this minute entry indicates that copies of it, also, were sent (or intended to be sent) to various persons, including appellant. There is no suggestion by appellant that a copy was not sent to or received by her.

In the meantime, on July 23, Charles Harrison Greene filed and served on all pertinently interested parties, including appellant, a petition for allowance of an executor's fee for services in the amount of $33,000.00 or $25,000.00 over the $8,000.00 which had previously been allowed to him during his tenure in office. A second claim was made for allowance of attorneys' fees and related expenses incurred by him in connection with the litigation prosecuted in California by Eva Greene Day. This second petition stated Charles Harrison Greene's expenditures to have been $142,000.00 and asked that he be allowed a reasonable reimbursement based On July 29, the executor filed an objection to appellant's motion for continuance. There is no indication that appellant was present at the time set by the trial judge for hearing on the motion. A minute entry was entered on the same day denying her motion.

upon his status as executor or co-executor in both Arizona and California and as testamentary trustee. Charles Harrison Greene also filed objections to the final accounting, some of which were on grounds similar to those advanced by appellant.

On July 30, the date set for the continued hearing, counsel for William Cornell Greene and Mary Virginia Greene Sturdivant filed various objections to the accounting and petition for distribution. The hearing commenced with all interested parties ³ present in person or by counsel with the exception of appellant and Frank Townsend Greene, who had filed no objections or petitions of any kind. The record indicates that on the following day, July 31, appellant was in Pasadena, California, with one of her children who was in a hospital. At the hearing, Charles Harrison Greene announced, contrary to previous indication, that he would serve in his will-designated capacity as trustee of the three testamentary trusts.

After some argument and the taking of some testimony, the hearing was continued to the following day, July 31. On that day, William Cornell Greene filed a petition for reimbursement of a claim against the estate in the amount of $28,000.00. Clarence Kirk Greene also filed a petition, claiming reimbursement for $18,000.00 in expenses incurred during his executorship. The current executor also filed an additional petition to amend...