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In re Estate of Baxter

Supreme Court of Arizona

September 29, 1941

In the Matter of the Estate of MARY H. BAXTER, Deceased; HOWARD RIVES, Petitioner for Partial Distribution, Appellant,
v.
HUGO B. FARMER, as Executor of the Estate of Mary H. Baxter, Deceased; and DOROTHY K. WINSLOW, as Administratrix of the Estate of Cornelia K. Rives, Objector to Petition for Partial Distribution, Appellees

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment affirmed.

Mr. Walter J. Thalheimer and Mr. William H. Westover, for Appellant.

Mr. Vere Nadir Norton and Mr. W. H. Gregory, of Los Angeles, California, and Mr. J. Fred Hoover, for Appellee Winslow.

OPINION

Page 92

[58 Ariz. 17] ROSS, J.

This in an appeal by Howard Rives from an order denying his petition for a partial distribution [58 Ariz. 18] to him as a legatee under the will of Mary H. Baxter, deceased.

The will, under which appellant claims a portion of the decedent's estate, was made August 13, 1927. The maker thereof was a resident of Yuma County. She died December 20, 1928. In her will she nominated Hugo B. Farmer as executor and devised to him all of her property, real, personal and mixed, wheresoever situate (except a ranch property and appurtenances, devised and bequeathed by her to her niece Frances W. Hardy and her husband), together with the rents, issues and profits thereof, to have and to hold the same in trust, with the powers therein conferred, and for distribution of the proceeds to the persons named and specified.

The executor was authorized and directed to convert all of the property into money; to sell it at private or public sale to the best advantage to the estate and for the highest price obtainable. She directed the

Page 93

reports of sales to be made to the court and specified that no sale should be absolute until thirty days after such report was filed in court, during which time "any beneficiary" under the will might make written objections to a sale and have a hearing before the court. The executor was directed to use due and proper diligence in executing the powers conferred, by selling property and converting it into money and in any event to fully discharge the trust within ten years from and after the testatrix' death, and in a lesser period if it were possible and in the best interests of the estate.

She directed that the moneys belonging to her estate and coming into the executor's hands be disbursed in payment of the expenses of (1) her last illness, funeral expenses and debts; (2) probating her estate; (3) converting property into money and collecting and disbursing the moneys of the estate as provided in the will; (4) executor's fees, fixed in the will at 6% of [58 Ariz. 19] all moneys of the estate, and (5) maintaining the will, in case it was contested, and carrying out its provisions.

The will directed the executor to make annual disbursements out of the moneys coming into his hands under the trust therein and to make and file annual accounts of his receipts and disbursements.

The donees under the will and the operative words of gift and amounts each was to receive are as follows: "It is my will and wish" that my sister Ida J. Snyder receive from my estate the sum of One Hundred Dollars, and no more; that from my estate the moneys shall go "to my nephew, King W. Cawthon, the sum of Five Thousand Dollars; to my niece, Amy McIntosh, nee Snyder, the sum of Five Thousand Dollars; to my niece, Frances W. Hardy, in addition to the property specifically devised to her, the sum of Five Thousand Dollars; to my nephew, Edward B. Rives, the sum of Ten Thousand Dollars; the above named sums shall be paid to them by said Executor out of the moneys belonging to my estate as soon after my death as reasonably can be done without sacrifice of property belonging to my estate.

"All the rest, residue and remainder of the moneys belonging to my estate which shall come into the hands of my said Executor in the full execution of this trust shall be by him paid in the proportions named to the following persons, which it is my will that they shall receive out of my estate, namely: To Blanche Wisby, nee Snyder, a one-sixth share thereof; to Mary J. Kendrick, nee Snyder, a one-sixth share thereof; to Edna E. Cordes, nee Synder, a one-sixth share thereof, and to Ellen Parker, nee Snyder, a one-sixth share thereof; to Robert Rives, Edward Rives and Howard Rives, children of my deceased nephew, Jim Rives, a one-eighteenth share thereof to each of them, the said Robert Rives, Edward Rives and Howard Rives; and [58 Ariz. 20] to my nephew, Logan Rives, a one-sixth share thereof, and ...


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