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In re Estate of Hayward

Supreme Court of Arizona

May 28, 1945

In the Matter of the Estate of THEODORA L. HAYWARD, Deceased.
v.
SUPERIOR COURT of Mohave County, Arizona, and LEVI S. UDALL, Judge of the Superior Court of Apache County, Arizona, as Judge of the Superior Court of Mohave County, Arizona; WINIFRED VAN HAGEN and WOOLF & SHUTE, Her Attorneys; and LANGMADE & LANGMADE, Attorneys for Sayles Gorham, Administrator d. b. n., Respondents J. HARRY NEWTON, Executor of the Last Will of Said Theodora L. Hayward, Deceased, in Ancillary Probate, Petitioner,

Original proceedings by J. Harry Newton, Executor of the Last Will of Theodora L. Hayward, Deceased, for a writ of certiorari directed to Levi S. Udall, Judge of Superior Court of Apache County, Arizona, presiding as Judge of Superior Court of Mohave County, Arizona, C. B. Tatum, Clerk of Superior Court of Mohave County, Arizona, and the Superior Court of Mohave County, Arizona, to determine whether the Superior Court had jurisdiction to vacate and set aside an order of Superior Court settling and allowing the executor's first account and report of administration.

Writ heretofore issued ordered quashed and writ of prohibition vacated.

Mr. Carl G. Krook, for Petitioner.

Messrs. Woolf & Shute, and Messrs. Langmade & Langmade, for Respondents.

LaPrade, J. Stanford, C. J., and Morgan, J., concur.

OPINION

LaPrade, J.

Page 308

[63 Ariz. 3] J. Harry Newton, executor of the last will of Theodora L. Hayward, deceased, in ancillary probate, sought a writ of certiorari in this court to review the proceedings of the superior court of Mohave County, Arizona, wherein an order settling, allowing, and approving the first account and report of the executor was ordered vacated. The writ was issued, requiring a certification to this court of all proceedings had, and commanding and requiring respondents to desist from further proceeding in the matter ordered for review.

The questions presented for our determination are solely legal in nature. The material facts, not being in dispute, may be stated as follows:

On February 4, 1944, said executor, in the discharge of his duties as such, filed his verified first account and report of his administration of said estate, which was set for hearing by the clerk, notice thereof duly given in the manner required by law, and thereafter, to-wit, on February 15, 1944, the day for which said hearing was set, said account and report were duly heard before Honorable J. W. Faulkner, as Judge of said superior court of Mohave County. Evidence was taken in support thereof, and on the same day an order was entered approving, allowing and settling said account and report as presented, which order was filed on February 16, 1944.

The estate consists chiefly of one-half of the residue of the John Watson Thompson estate in Mohave County, Arizona. By decedent's (Theodora L. Hayward's) will, the residue of her estate was left to petitioner and C. D. Haley in trust for the Town of Paonia, Colorado, or the schools thereof. Winifred Van Hagen [63 Ariz. 4] was the other distributee of the residue of the John Watson Thompson estate. On May 17, 1944, ninety-two days after the date of the order settling and allowing the executor's first account and report of his administration, a motion was presented and filed by Winifred Van Hagen to vacate and set aside said order of Judge Faulkner of February 15, 1944, under Section 21-1502, Arizona Code Annotated 1939 [Rule 60(b)], alleging as grounds: (1) that the order was improvidently entered, and (2) that through inadvertence and excusable neglect said order was entered in the absence of Winifred Van Hagen and her attorneys, and without any actual notice to any of them of the filing of said account.

On June 2, 1944, the Honorable J. W. Faulkner, as said judge of the superior court of Mohave County, Arizona, assigned the probate cause aforesaid to the Honorable

Page 309

Levi S. Udall, judge of the superior court of Apache County, Arizona, with full jurisdiction on his part to try and determine all matters, issues and proceedings which might arise in said probate cause, and to retain jurisdiction ...


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