ARCHIE D. SMITH and ETHEL M. SMITH, Husband and Wife, Appellants,
MARY NORMART, Executrix of the Estate of EDWIN K. SMITH, Also Known as E. K. SMITH, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Santa Cruz. Elbert R. Thurman, Judge. Judgment reversed and cause remanded with directions to dismiss the complaint.
Mr. Duane Bird and Mr. Thomas L. Hall, for Appellants.
Messrs. Duffy & Robins, for Appellee.
[51 Ariz. 135] ROSS, J.
This is an action by Mary Normart, executrix of the estate of Edwin K. Smith, deceased, against Archie D. Smith and Ethel M. Smith, husband and wife, to recover on a promissory note due to the estate and to foreclose a realty mortgage. The facts of the case are as follows:
August 18, 1928, the defendants, at Nogales, Ariz., made their promissory note to Edwin K. Smith for $2,500, with interest at 8 per cent. per annum, payable to his order at Nogales on or before five years, and to secure the note gave a mortgage on Nogales realty.
[51 Ariz. 136] February 26, 1930, Edwin K. Smith died testate in Chicago, Illinois. In his will he named plaintiff as his executrix and on May 20, 1930, the will was probated in the superior court of Santa Cruz county, Arizona, and letters testamentary issued to her. Later, the date not given, the will was probated in the probate court of Cook county, Illinois, and Hulet S. Terrill appointed administrator with the will annexed.
February 16, 1934, plaintiff commenced this action claiming a balance due on the note of $2,340, with interest at 8 per cent. from January 1, 1930. Defendants answered that on September 7, 1933, there was unpaid on the note the sum of $1,438.58 and no more; that on that day they offered to pay same to plaintiff, but that plaintiff had refused to accept it. They aver they have been ever since able, willing, and ready to pay the note to the person lawfully entitled thereto, or into court if so ordered, but they allege that the note and mortgage were in the physical possession of said Terrill or his attorneys in Chicago at the time of filing the answer, and were there at the time of payee's death, and that they are informed and believe that Terrill, as the personal representative of the deceased, is entitled to the payment of the note and mortgage.
The defendants prayed that Terrill and his attorneys be made parties to the action. This was done by an order of the court and substituted service was had on them, but none made any appearance in the action.
The court found that after Smith's will was probated in Arizona and letters issued to plaintiff
"ancillary probate of said will
was had in the Probate Court of Cook County, Illinois... that in said respective probate proceedings the domicile of said Edwin K. Smith at the time of his death was found by said Santa Cruz Court to be Santa Cruz County, Arizona, and by said Cook County Court to be Cook County, Illinois."
[51 Ariz. 137] The court also found that the note and mortgage at the time of intestate's death were in Chicago, and that they are now in the physical possession of Terrill or his attorneys in Chicago, who claim them as assets of the estate in Cook county. It was also found that at ...