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In re Estate of Gerard

Supreme Court of Arizona

November 8, 1937

In the Matter of the Estate of JOSEPHINE GERARD, Deceased;
v.
JOHN DeCAMP, Incumbent Administrator of Said Estate, Appellee LEE ACTON, Former Administrator of Said Estate, Appellant,

APPEAL from an order of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Order affirmed.

Mr. Fred C. Bolen and Mr. J. S. Wheeler, for Appellant.

Messrs. Clark & Clark and Mr. Chet W. Williams, for Appellee.

OPINION

Page 953

[50 Ariz. 459] McALISTER, C.J.

This is an appeal by Lee Acton, former administrator of the estate of Josephine Gerard, deceased, from two orders, one denying his amended petition for letters of administration and the other appointing John B. DeCamp administrator. The notice of appeal mentions several other orders but these are the material ones.

The record discloses that on June 26, 1936, one Josephine Gerard, an elderly lady, died intestate in Phoenix, Arizona, where she had lived for many years, leaving an estate consisting of real and personal property. She had no relatives or heirs in this state, so on July 1st thereafter one Lee Acton, of Phoenix, filed a petition stating that he was a creditor of the estate and praying that letters of administration thereof be issued to him, and on July [50 Ariz. 460] 11th thereafter an order appointing him administrator, upon his giving the required bond, was made.

Four days later, or on July 15, 1936, Winniford Jessie McCaulley and Katherine Adeline Hughes of Omaha, Nebraska, half sisters of the deceased, filed a petition asking that the letters of administration issued to Lee Acton be revoked and that one Joseph C. Furst of Phoenix, Arizona, be appointed administrator. This petition, so far as it pertained to the revocation of the letters theretofore issued, was granted on July 28th thereafter but the matter of the appointment of Furst was taken under advisement and on October 8, 1936, before it was decided, one Florentin Jean Gerard of France, a full brother of the deceased, filed through his attorney, Chet Williams, a petition objecting to the appointment of either Lee Acton or Joseph C. Furst as administrator and nominating one John B. DeCamp therefor.

A few days later Lee Acton was permitted to file an amended petition for letters of administration and through his counsel, Fred G. Bolen, he requested the court on October 21st thereafter to dismiss the petitions of Furst and his nominators, demurred to the petitions of John B. DeCamp and his nominator, Florentin Jean Gerard, and on November 2d filed objections to the appointment of John B. DeCamp. At that time the petitions, as well as the demurrers and objections to them, were heard and taken under advisement, and on January 15, 1937, both the petition of Furst and the amended petition of Action were denied, the demurrers of the latter overruled, and the petition of John B. DeCamp for letters of administration granted and his appointment made.

The question presented by the appeal is, whether the action of the court in denying the amended petition of Lee Acton, a creditor of the estate, for letters of administration, and in granting the petition of [50 Ariz. 461] John B. DeCamp, a stranger, upon the nomination of Florentin Jean Gerard, a full brother but a nonresident of Arizona, was valid. The answer to this query depends upon the proper construction to be placed upon the following sections of the Revised Code of 1928:

"3922. Order of preference in appointment. Administration of the estate of a person dying intestate shall be granted to some one or more of the following persons and in the following order: The surviving husband or wife, or some competent person whom he or she may request to have appointed; the children; the father or mother; the brothers; the sisters; the grandchildren; the next of kin entitled to

Page 954

share in the distribution of the estate; the creditors; any person legally competent; if the decedent was a member of a partnership at the time of his decease the surviving partner shall not be appointed administrator of the estate of the decedent."

"3925. Who not competent to serve. No person is competent to serve nor shall be appointed as administrator who is: Under the age of majority; or convicted of an infamous crime; or not a bona fide resident of this state and a citizen of the United States, except in ancillary probate; or adjudged by the court to be incompetent to execute the duties of the trust by reason of drunkenness, ...


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