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In re Estate of Lawrence

Supreme Court of Arizona

December 5, 1938

In the Matter of the Estate of MARCUS JAY LAWRENCE, Deceased. AMERICAN SECURITY AND TRUST COMPANY, CARRIE J. LAWRENCE, PAUL T. LAWRENCE and VALLEY NATIONAL BANK, Appellants,
v.
JANE STOUT LAWRENCE and THE PHOENIX SAVINGS BANK & TRUST COMPANY, Appellees

APPEAL from a judgment of the Superior Court of the County of Yavapai. Levi S. Udall, Judge. Judgment vacated and set aside; cause remanded with directions.

Messrs. O'Sullivan & Morgan, Mr. E. C. Locklear, Mr. Charles L. Ewing and Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellants.

Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellees.

OPINION

[53 Ariz. 2] ROSS, J.

This is an appeal from an order granting letters of administration with the will annexed upon the estate of Marcus Jay Lawrence, deceased, to the Phoenix Savings Bank & Trust Company, of Phoenix, an Arizona corporation, and refusing to grant said letters to the American Security and Trust Company, a corporation, of Washington, District of Columbia, or the Valley National Bank, of Phoenix, an Arizona corporation.

The deceased was at the time of his death, May 11, 1938, and for a short time prior thereto had been, a resident of Yavapai county, Arizona, and left separate property, both real and personal, in said county and state and in the District of Columbia. In his will, [53 Ariz. 3] which the trial court duly admitted to probate, the deceased appointed the American Security and Trust Company, a corporation organized under the laws of the District of Columbia, his executor. He left surviving him his wife, Jane Stout Lawrence, who, on May 23, 1938, filed her petition in the probate court of said county for letters of administration with the will annexed; and on the 31st day of May the American Security and Trust Company, in whose possession the deceased had left his will, filed the will for probate and its petition for letters testamentary, or if the court should find it incompetent to act, it asked that the Valley National Bank be appointed administrator with the will annexed.

The mother of the deceased and a half brother, who were liberally remembered in the will as legatees and devisees, and

Page 46

other nonresident beneficiaries, joined in the latter petition asking that the American Security and Trust Company be appointed executor or in lieu thereof the Valley National Bank, an Arizona corporation, be appointed administrator with the will annexed.

The court heard both petitions together and, after taking the matter under advisement, came to the conclusion that the surviving widow was not, as a matter of right, entitled to letters and declined, on account of her inexperience and hostility to other heirs and possible adverse interest to the estate, to appoint her. The court refused to appoint the American Security and Trust Company, the executor named by deceased, on the ground that it was not a resident of the state, and also refused to appoint the Valley National Bank as prayed, although it found such bank competent and qualified to act, but appointed the Phoenix Savings Bank & Trust Company on a written request by the surviving widow handed to the court subsequent to the hearing and while the court had the matter of appointing [53 Ariz. 4] a personal representative under advisement and consideration.

The American Security and Trust Company, the Valley National Bank and the heirs and legatees petitioning for their appointment have appealed contending (1) that although the American Security and Trust Company is a foreign corporation, it having qualified under the law to transact business in Arizona at the time of the hearing on the petition, was competent to act as executor and that the court erred in not appointing it instead of the Phoenix Savings Bank & Trust Company; (2) that since the American Security and Trust Company was the trustee of the estate of the deceased, and since the mother and half brother were the principal beneficiaries of the estate, the court committed error in not appointing their selection, the Valley National Bank, to administer the estate; (3) that the appointment of the Phoenix Savings Bank & Trust Company, when no one had petitioned for its appointment and no hearing was had as to its fitness or qualifications, was without jurisdiction and an error.

If it be determined that the deceased's choice of executor in his will was competent, it will not be necessary to consider the other two assignments. The law favors the upholding of the wishes of a testator in that respect when it can be done.

"The court admitting a will to probate shall issue letters thereon to the persons named therein as executors who are competent to discharge the trust...,"

says the law. Section 3915, Rev. Code 1928. This legislative declaration is universally recognized and may not be disregarded or ignored by the courts. Section 3916, Id., does not enumerate who may act as executors but does ...


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