EDNA W. HILL, as Executrix of the Will of GEORGE R. HILL, Deceased, Appellant,
ROULAND W. HILL, GEORGE M. HILL, MARTHA R. HILL, GOLDIE JONES, as Guardian of the Estate of MARTHA R. HILL, a Minor, and GOLDIE JONES, Appellees
APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment reversed and cause remanded, with instructions.
Messrs. Baker & Whitney, for Appellant.
Messrs. Rice & Mathews, for Appellees.
[37 Ariz. 407] LOCKWOOD, J.
This is an action under the Declaratory Judgment Act (Laws 1927, chap. 10), seeking for the construction of a certain will. The facts necessary for the determination of the case may be stated as follows: George R. Hill, hereinafter called deceased, for more than twenty-five years [37 Ariz. 408] prior to his death was a lawyer, actively engaged in the practice of law in Arizona. In September, 1900, he was married to Goldie Jones, one of the defendants herein, and they lived together as husband and wife until September, 1922, when they were divorced by the superior court of Gila county. Defendants Rouland W. Hill, George M. Hill, and Martha R. Hill were the issue of such marriage.
Prior to the divorce, deceased had conveyed a life interest in his share of the community realty to his then wife. By the terms of the agreement of conveyance, she was to care for the property and maintain the improvements thereon, aid in the maintenance of the children of the marriage, and also pay off all debts and obligations then existing upon the property. At the termination of the life estate, the reversion went to deceased and his heirs.
Subsequent to the divorce, both parties remarried, deceased marrying plaintiff, Edna W. Hill, and his former wife marrying a Mr. Jones. After the marriage of deceased and plaintiff, the former made a holographic will which, after making plaintiff his executrix and residuary legatee, reads, so far as is necessary for the purposes of this case, as follows:
"Thirdly: I direct that my debts and expenses shall be charged to and paid from all my one half interest in that certain real estate at Globe now held as a life estate by Mrs. Goldie Hill, my former wife; and the remainder of such property I give devise and bequeath unto my beloved children Rouland, George and Martha, share and share alike, subject however to Mrs. Hill's life estate therein.
"Fourthly: If after my death Mrs. Goldie Hill aforesaid should continue in possession of said property then my debts and last expenses shall be paid out of any available funds or property of my estate but the sum so expended shall remain a charge against said property so held by Mrs. Goldie Hill aforesaid and my executor shall be reimbursed before a distribution [37 Ariz. 409] of said property to my children as aforesaid shall be made." (Italics ours.)
At the time of the execution of the will in January, 1923, deceased owned no realty except his reversion, as above stated, and comparatively little personal property, nor were his debts, aside from the indebtedness on the life interest which had been assumed by his former wife, of any great amount. After the execution of the will, deceased purchased certain realty in Maricopa county, one parcel of which at the time of his death was encumbered with a mortgage, and the other had upon it a lien for a large percentage of the unpaid purchase price, and had also acquired considerable personal property. Claims aggregating $4,697.79 were filed for probate and allowed in the superior court of Maricopa county. There were also various alleged expenses of administration paid by plaintiff as executrix out of the personal property of the estate, most of which were items arising out of the realty mortgage and contract aforesaid, or for legal services. These items were all approved by plaintiff as executrix and allowed by the court.
The first question which we must determine is whether or not the words "debts and expenses" set forth in the third clause of the will above quoted cover all the debts of the deceased, of every nature, as they existed at his death, and the expenses of the last illness, funeral, and administration, or only the debts which existed at the time of the execution of the will.
In passing upon this question, there are certain general and well-recognized principles of law which we must apply thereto: (1) A will operates upon the situation as it exists at the time of the death of the testator. 40 Cyc. 1424, and notes. (2) The meaning of a will is to be construed in accordance with the apparent intention ...