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In re Estate of Hayward

Supreme Court of Arizona

March 3, 1941

In the Matter of the Estate of THEODORA L. HAYWARD, Deceased;
v.
J. HARRY NEWTON, Petitioner for Ancillary Probate of the Last Will and Testament of Theodora L. Hayward, Deceased, Appellee WINIFRED VAN HAGEN, CHARLOTTE I. THOMPSON, Formerly Charlotte Thompson Lloyd, and JOHN WATSON THOMPSON, Sometimes Called Jack W. Thompson, Contestants, Appellants,

APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment affirmed.

Messrs. Woolf & Shute, for Appellants, and Mr. W. T. Elsing, on the Brief.

Mr. Carl G. Krook, of Kingman, Arizona, and Mr. A. A. Clements, of Paonia, Colorado, for Appellee.

OPINION

[57 Ariz. 52] ROSS, J.

Theodora L. Hayward, a resident of Paonia, Delta County, Colorado, died testate August 14, 1939. Her will was admitted to probate in said Delta County on September 18, 1939, and letters testamentary [57 Ariz. 53] were issued to J. Harry Newton, the named executor thereof. Thereafter said executor

Page 957

applied to the Superior Court of Mohave County, Arizona, for ancillary letters and in his application represented that the decedent at the time of her death "owned an undivided one-half interest in the residue of the estate of John Watson Thompson, now being probated in the County of Mohave, State of Arizona."

Winifred Van Hagen, Charlotte I. Thompson (formerly Charlotte Thompson Lloyd) and John Watson Thompson, cousins of the decedent and nieces and nephew, respectively, of John Watson Thompson, deceased, contested the issuance of letters ancillary on the ground that the decedent left no property in Mohave County.

The John Watson Thompson will, after specifying a considerable number of gifts to friends and relatives, contained this provision:

"7. All the rest and residue of my estate, real and personal, of which I shall die seized and possessed, or to which I shall at my decease in any way be entitled, including any lapsed legacies or devises, I give, devise and bequeath to my nieces, Miss Theodora L. Hayward, of Paonia, Delta County, State of Colorado, and Miss Winifred Van Hagen, of Oakland, California, in equal shares, and if either of them shall have died before my decease, without issue living at the time of my death, then her share shall pass to my said sister, Mrs. Emily D. Van Hagen, my niece, Charlotte Thompson Lloyd, and my nephew, John Watson Thompson, or the survivor or survivors of them, share and share alike."

By this provision of the will the residue of the Thompson estate, after payment of special devises and legacies, passed to Theodora L. Hayward and Winifred Van Hagen in equal shares, both having outlived the testator. It is undisputed that one-half of such residue amounted to around twenty thousand dollars. [57 Ariz. 54] It is also a fact that the executors of the Thompson estate recognized that Theodora L. Hayward had a one-half interest in such residue during her lifetime, and that Winifred Van Hagen owned the other one-half.

One of the questions raised is whether under the Thompson will Hayward's one-half interest died with her, and another is whether she had before her death voluntarily created a trust of her interest in the estate with Winifred Van Hagen as the beneficiary. The trial court decided both these questions in the negative, and directed that letters ancillary issue to Newton. The contesting heirs have appealed.

The evidence which appellants claim establishes a trust of Hayward's interest in favor of Van Hagen consists of letters written by Hayward and of conversations during her lifetime. When all the letters taken together are considered, we think they manifest an intention on the part of Hayward in the future to give to Van Hagen her one-half interest, but not an intention to transfer her title or interest therein immediately. She continued up to her death to direct the executors of the Thompson estate as to what to do with her part of the income therefrom. She gave such executors no formal writing authorizing or directing them to collect and hold her part of the estate for the use and benefit of Winifred Van Hagen, as one who was creating a trust and appointing trustees to manage and care for it ordinarily would do. She continued to accept remittances of her share of the income, not as trustee but as owner.

She died, as above stated, on August 14, 1939. At the time Van Hagen was with her and had been for more than a month. On July 23, 1939, the latter wrote to J. H. Knight, one of the executors of the Thompson estate:

[57 Ariz. 55] "Here I am at Paonia with a sick woman. Theodora is far from well -- she does not know that I am writing but I would suggest that you and Mrs. Lassell (the other executor) send her a check for the amount that has accumulated to her credit...."

In response to the request in the above letter, the executors remitted that portion of the income, or $2,500, belonging to Hayward and in acknowledging receipt thereof Van Hagen wrote, on August 8th, to Mr. Carl ...


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