APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.
Mr. Jacob Morgan, for Appellant.
Mr. John M. Boyle, and Mr. Mark Wilmer, for Appellee.
[61 Ariz. 426] STANFORD, J.
The question involved in this appeal is the liability of the administrator for failing to sell in due time stocks and bonds of the estate under his control. The stocks were listed New York Exchange and New York Curb.
Eva Pedelty died in Maricopa County, Arizona, February 18, 1940. Petition for letters of administration was filed in the Superior Court of that county by her brother, Alva Pedelty, who asked for the appointment of A. H. McLellan an administrator of the estate on account of the petitioner being a non-resident of the state and therefore not qualified to serve. The petition, as filed, alleged there to be only three persons as the next in kin and heirs at law of deceased.
Appellee was appointed administrator March 5, 1940, promptly thereafter gave his bond and on the 7th day of March,
1940, filed the inventory and appraisement of the estate, and on the 8th day of March gave notice to creditors, the notice to creditors being what is called in law practice as notice of a "ten months estate" because the estate exceeded the sum of $5,000 in value. On the 3rd day of November, 1941, Alva Pedelty, as an interested party in the estate, filed in court a petition for revocation of letters of administration of the appellee, alleging that the administrator had wholly failed to make and file with the court a verified account of all his acts in said estate since his appointment, or at all, and that the [61 Ariz. 427] administrator refused to furnish him with information with respect to the estate and that the administrator was incompetent for the reason that he told the petitioner for letters of revocation "that there is nothing further to do in the estate that it is left entirely up to the attorney in the matter," and the trial court thereupon issued a notice to show cause why the letters of administration should not be revoked. The time for hearing the said matter was set for the 12th day of November, 1941. On the 4th day of November, 1941, the trial judge signed a decree establishing notice to creditors. On November 6, 1941, the administrator, the appellee herein, filed his final account and report of the affairs of the estate and in said report stated that he was not entirely certain who were the heirs of deceased, and when that was determined he would file his petition for distribution of the property and money of said estate. In his report the appellee mentioned the value of the estate to be $10,757.40; that he, as such administrator, was entitled to a fee of $550.29, and a like sum for attorney's fees and entitled to a fee for special services rendered in and about the collection of dividends on stocks and bonds and the care of them in the sum of $50 and his attorney was entitled to a special fee in a like sum; that on the 17th day of November, 1941, Alva Pedelty, as a legatee and heir of the estate of Eva Pedelty, filed his objection to the said final account and report of the administrator. On the 24th day of November, 1941, the trial judge again appointed appraisers including two therefore appointed, and they re-appraised all of the property, except money in estate, at $7,529.78, and on December 16, 1941, the administrator, the appellee herein, filed his supplemental final account and report and petition for distribution setting forth that the value of the estate including money on hand was [61 Ariz. 428] $9,423.92 and naming nine heirs at law of the estate entitled to the distribution of same. On December 30, 1941, the probate court entered an order approving the final account and an order approving the supplement to the final account. On January 23, 1942, appellee filed his petition for order authorizing sale of all assets of the estate excepting cash. The trial court in making the order of sale, among other things, stated:
"It Is Ordered that said sale shall be made by said administrator at private sale; that the stocks and bonds belonging to said estate shall be sold by said administrator in the customary manner of selling stocks and bonds, and that said administrator is authorized to sell the same through Refnes, Ely, Beck & Co., paying the usual commissions for effecting such sales...."
On the 25th day of September, 1942, Alva Pedelty, in this instance as guardian of Mary Pedelty, petitioned the court for the removal of the administrator for reasons among other things that the administrator had neglected to take steps looking toward the speedy and prompt settlement of the estate and had permitted the estate to continue for more than two and one-half years without distribution to the heirs, and following the citation and order to show cause on petition for removal, the appellee, as administrator, made a motion to quash and motion to strike, the motion to quash being based on the provisions and requirements of Sec. 38-2005, Arizona Code Annotated 1939, and on October 14, 1942, the trial court granted the said motion to quash on the ground that the process did not conform with the provisions and requirements of said section.
On October 9, 1942, the appellee herein, as administrator, filed an account and report of sale in which petition he asked that his acts in such sale be ratified [61 Ariz. 429] and distribution be ordered of the monies on hand in accordance with the decree of distribution theretofore entered. On the 15th day of October, 1942, the appellant herein, as guardian, filed exceptions to the account and report of sale which was filed October 9, 1942, and the appellant in said exceptions stated, "which said account and report was filed after he filed his petition for removal of such administrator, and for
an immediate distribution herein," and further alleged:
"That said Guardian further excepts and objects to the said account and report on the ground that said administrator has failed and neglected to charge himself, or account, for interest upon the funds in his hands as administrator although he has had large sums of money in his hands as such administrator for more than two and one-half years.
"The said Guardian further excepts and objects to the said account and report on the ground that said administrator is claiming compensation for special services, whereas such services were neither special nor beneficial to the estate of said decedent or the heirs thereof, and further, because the services of said administrator were detrimental and injurious to said estate and the heirs thereof because of the neglect, inattention to business, procrastination, delay ...