In re TOLLESON'S ESTATE.
GARDNER VAN ZANDT et al.
Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
Proceeding in the matter of the estate of W. G. Tolleson, also known as Walter G. Tolleson, deceased, wherein Dorothy Cover Gardner presented a claim which was duly approved and allowed by executor and judge. From an order directing payment of the claim, Elma Van Zandt and another, as administratrices with the will annexed, appeal.
Cox, Lockwood & Lockwood, of Phoenix, for appellants.
Walter J. Thalheimer, of Phoenix, for appellee.
Morgan, Judge. Stanford, C. J., and LaPrade, J., concurring.
[64 Ariz. 81] Morgan, Judge.
Appellants, as the administratrices with the will annexed of the estate of W. G. Tolleson, appealed from an order of the superior court in probate, directing the payment of an allowed and approved claim of the appellee-claimant. Funds are available for the payment of the claim. The objections raised by the appellants relate entirely to the power or jurisdiction of the representative and judge in approving and allowing the claim. The admitted facts, so far as pertinent, may be stated as follows:
On January 2, 1931 deceased, for value received, executed and delivered his promissory note payable to claimant within three years, and providing for a monthly payment of $ 40 to apply on principal and interest. On October 7, 1937, the note being overdue, he wrote claimant a letter, from which we paraphrase and quote: The writer points out the difficulty which he has had in securing money which accounts for his delays in writing. Check for $ 25 was enclosed. Mr. Tolleson then recited his efforts to reduce other obligations, and continues, "I honestly believe [64 Ariz. 82] before the winter season, I mean the business season is over about May 1st, I will have him paid this amount in full. This means the brick building as well as my lands, when I will then give you a mortgage on brick -- for what I owe you. I am only receiving $ 50 a month for brick. If I send you $ 25 a month, will mean less payments to Marshall. This means longer time paying him. During winter months I hope to make some extra money anyway and send you every month a payment." He then asks if the note had been taken out of the bank; calls attention to the fact that he had never been credited with any payments made to the payee, and states that this should be done. Certain items so paid were referred to, and finally concludes, "Just remember 'Polly' all my heart is in this work I want to pay you in full before I pass on, and if I don't, you will get the brick building."
Tolleson died testate on October 13, 1940. His son was appointed and qualified as executor. On January 14, 1941 claimant presented her verified claim, based upon the note and letter. The claim was in due course approved and allowed by the executor and judge. The executor died, and on October 17, 1942 his administratrix filed final account and report of his administration of the W. G. Tolleson estate. The claim involved here was set forth as an allowed and acknowledged debt. This account was duly approved by the court. On October 21, 1942 the appellants were appointed as representatives. Both they and the court continued to recognize the claim as valid. The property of the estate was sold for, among other purposes, to pay this claim. Appellants refused to pay the claim so allowed and recognized. Upon claimant's application, the court, on September 26, 1944, ordered payment.
The position of appellants rests upon these two principal propositions: (1) The note upon which the claim was based shows on its face that at the date of the maker's death it was barred by limitations, and the letter of October 7 is insufficient both in form and in fact to remove the bar of the statute, and to establish a new cause; and neither the executor nor judge had jurisdiction to approve it for payment. The allowance, therefore, was without jurisdiction and is void; (2) Although the approval of an account of an executor ordinarily bars a reconsideration of approval of any item, if it appears on the face of the record that the court was without jurisdiction to approve a particular item, the approval of such item may be attacked collaterally.
The questions presented by these propositions are, (1) Was the claim on its face barred by limitations? (2) Are appellants barred, by the action of the probate court in approving the claim and the account, from contesting its validity? Should our answer to the first question be in the negative, the second need not and may not properly be considered.
[64 Ariz. 83] Claims barred by the statute of limitations cannot be allowed by the administrator, executor or judge. Section 38-1007, A.C.A.1939. A number of cases, including Estate of Sullivan, 51 Ariz. 483, 78 P.2d 132, have been cited by appellants to the effect that the statute deprives the court and representative of jurisdiction to approve a barred claim. At least one authority to the contrary has been cited by appellee. Kohn v. Rupley,54 Cal.App. 565, 202 P. 163. We think it unnecessary to express an opinion as to this phase. The matter of jurisdiction would be material only in the event the claim on its face was barred by the statute. The superior court, sitting as a probate court, is given the power to approve or reject claims. Of necessity, this includes the power to determine whether a claim is or is not barred by the statute. This is not contested by appellants. Their claim is that the note was obviously barred, and that the letter was insufficient to interrupt the statute, and therefore the claim was barred on its face. Unless the letter of October 7, which was an essential part of the claim, was, as claimed by the ...