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Downing v. Skluzacek

Supreme Court of Arizona

June 5, 1944

ALDA DOWNING, as Administratrix of the Estate of James P. Whelan, Deceased, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellants,
v.
LUCILE K. SKLUZACEK, Objector to Account of James P. Whelan, Guardian, Appellee

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

Mr. L. V. Rhue, for Alda Downing, Administratrix.

Messrs. Perry, Silverthorne & Johnson, for Fidelity & Deposit Company of Maryland.

Mr. W. J. Van Spanckeren, for Appellee.

OPINION

Page 681

[61 Ariz. 323] DE CONCINI, Superior Judge.

In this case, Alda Downing, as administratrix of the estate of James P. Whelan, the deceased guardian, and Fidelity & Deposit Company of Maryland, the surety company on the deceased guardian's bond, are the appellants, and Lucile K. Skluzacek, appellee, the daughter of the incompetent, A. T. Skluzacek, is the objector to the account of Whelan, the guardian of her father the incompetent. The court below sustained the objections, supplemental objections and exceptions of Lucile K. Skluzacek to the accounts of the guardian, and denied the motion of the surety company to set aside said order. The court below, among other things, [61 Ariz. 324] fixed the indebtedness of said guardian to the estate of the incompetent in the sum of $4, 125.91. From that order appellants appeal.

A. T. Skluzacek was declared an incompetent by the Superior Court of Maricopa County, June 2, 1937, at which time James P. Whelan was appointed guardian and made bond in the sum of $5,000 with the appellant, Fidelity & Deposit Company of Maryland, as surety. No further proceedings in the guardianship were taken through the court from that time until April 25, 1941, when pursuant to court order the guardian filed an inventory and his first account. On July 22, 1941, he filed an amended account.

The property consisted, among other things, of a going lumber business in Chandler, Arizona. The guardian continued to operate the business without any order from the court, sold and disposed of practically all of the personal property without order or confirmation of court, and as representative of wholesale lumber firms sold himself, as guardian, thousands of dollars worth of materials, which were resold in the course of the retail lumber business. By June 16, 1940, the guardian had disposed of all of the property of the ward except a few items worth $150.

No taxes or assessments on improvements were ever paid on any of the real property belonging to the ward. The lumber-yard and the buildings valued at approximately $14,000, as shown by the inventory filed, were sold for taxes for the sum of $140.10.

Appellant raises the proposition that the daughter of the incompetent has no right to object to the guardian's account. Section 42-139, Arizona Code Annotated 1939, gives her that right. In addition to that, the lower court when it revoked the Letters of Guardianship of Whelan, appointed the daughter, the [61 Ariz. 325] objector, as guardian. It is the guardian's duty to protect the estate of the ward.

Appellants cite a number of assignments of error that can be disposed of under one head. The question is: Did the guardian act at his own peril when he continued the operation of the business and disposed of all of the property of his ward without an order or confirmation by the court?

Sections 42-129 and 42-143, Arizona Code Annotated 1939, provide that the laws relating to estates of deceased ...


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