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In re Monaghan's Estate

Supreme Court of Arizona

September 30, 1946


Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Proceeding in the matter of the estate of Robert J. Monaghan, deceased, wherein Richard H. Kennerdell, as executor of the estate of Robert J. Monaghan, deceased, filed a petition for sale of the community property, to which sale Elizabeth G. Monaghan objected. From an order directing the sale of the realty as an entity, the objectant appeals.

Order set aside.

H. S. McCluskey, of Phoenix, for appellant.

Cornick & Carr, of Prescott, and Wallace W. Clark and Ozell M. Trask, both of Phoenix, Sp. Asst. Counsel, for appellee.

Morgan, Judge. Stanford, C. J., and La Prade, J., concur.


Morgan, Judge.

Page 108

[65 Ariz. 11] Decedent died testate in Phoenix, Arizona, on May 10, 1941, survived by his spouse, Elizabeth G. Monaghan, appellant, who was appointed and served as special administratrix. His will was later admitted to probate and the executor, appellee here, was appointed and qualified. All property of established value coming into the possession of the executor was community property of Robert J. and Elizabeth G. Monaghan, his wife. Pursuant to written stipulation, the funeral expenses and separate debts of decedent were paid by the special administratrix. The executor has paid two claims for legal services rendered to the community, in the aggregate sum of $ 1167.30, and a small claim for medical services to decedent. Other obligations consist of notes secured by mortgages on real property, on all of which amortized payments are current, and which secured obligations are not accelerated by decedent's death. No claims on these were filed with the executor by the holders. Time for filing claims has expired. No unsecured debts remain unpaid. All current assessments and taxes have been paid.

Under an order secured by appellant while she was serving as special administratrix $ 300 per month has been paid to her as a widow's allowance. The estate was appraised at approximately $ 45,000. Three appeals heretofore have been taken on questions arising out of this estate, as follows: An appeal on the part of the present appellant from the judgment admitting the will to probate, resulting in an affirmance of the lower court's judgment. Estate of Monaghan, 60 Ariz. 346, 137 P.2d 390; a second appeal on the part of appellant from an order of the probate court holding that certain attorneys' fees due appellant were community property, resulting in a reversal, Estate of Monaghan, 60 Ariz. 342, 137 P.2d 393; an appeal by the executor [65 Ariz. 12] and the beneficiaries under the last will and testament of the deceased from an order of the lower court holding certain real property to be community, in which the judgment of the lower court was affirmed; Estate of Monaghan, 60 Ariz. 366, 138 P.2d 292.

These various proceedings delayed the administration of the estate and added to the costs and charges of general administration beyond the ordinary charge which would have been incident to the probate of the estate. In October, 1944, the executor filed petition disclosing that he had $ 7,963.63 cash on hand, and that there were unpaid charges and obligations totaling $ 8,000, consisting of $ 2,500 special administratrix's fees, attorney's fees for special administratrix $ 2,500, fees allowed attorneys for executor $ 3,000. That no fees had been paid the executor, and additional fees and expenses would be required for closing the estate; that it was necessary to sell the real property or some portion thereof to pay these charges and expenses. Appellant objected to the sale of her one-half interest in the real property on the ground that such interest vested in her at the death of the decedent subject only to community debts which had been paid, and that the personal property, with the rents, issues and profits from real property, were and are adequate to pay any charges which might lawfully be assessed against her or her community interest. She alleged that her vested one-half interest was not subject to the expenses and charges of administration and other expenses, including widow's allowance, and that therefore the property interest of the decedent could be sold without the necessity of selling her interest.

Over these objections, the court directed the sale of the real property as an entity for the payment of the expenses and charges of administration. The property was advertised for sale. Appellant's petition that the order of sale be set aside or modified, on substantially the same grounds set forth in her objections, was denied. She gave supersedeas bond to stay the proceedings and brought this appeal.

Page 109

Numerous assignments have been presented by the appellant, but the principal and only questions worthy of consideration are those which relate to what items may be charged to the community interest of the wife upon probate of the estate of the deceased husband.

While the law generally requires the representative of a deceased person to inventory and taken possession of all property of the estate, including community property (Sections 38-801, 38-803, A.C.A. 1939), it is settled beyond any doubt whatsoever that the survivor's interest in community property is subject to probate only in the event there are community debts. La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426, Ann.Cas.1915B, 70; Molina v. Ramirez, 15 Ariz. 249, 138 P. 17; Estate [65 Ariz. 13] of Wilson, 19 Ariz. 205, 168 P. 503, wherein it was held that in the absence of a showing of debts, there was no right to administer in probate the community interest of the deceased. At the time of the deaths of the deceaseds in the foregoing cases there was no right of disposition of the community interest by will, as at present. The law was that upon the dissolution of the community by death, all the community estate of the deceased went to the survivor and to the children of the deceased, if any. Par. 2124, sec. 9, R.S.1901. The law at that time, as now, however, provided in every case the community estate passes charged with the debts against it. Par. 2125, sec. 10, R.S.1901, sec. 39-109, A.C.A.1939. By sec. 1100, R.S.A.1913, the law was changed to give the owners of the community power of testamentary disposition over their respective one-half interests. In Pauley v. Hadlock, 21 Ariz. 340, 188 P. 263, it was held that where the wife died intestate, leaving children, and there were community debts, the probate court had jurisdiction of the whole community estate to determine how much thereof might be sold to satisfy the indebtedness, and to carve out of it a homestead for the surviving husband and children. Perhaps the clearest statement made by the court appears in Roberson v. Teel, 35 Ariz. 166, 275 P. 2, 4. It was there said:

"* * * The right of possession given to the executor or administrator by statute is merely for the purpose of enabling him in proper cases to pay the debts and legacies. Where there are none such to be paid, there is no valid reason why he should have possession of the estate."

In Nowland v. Vinyard, 43 Ariz. 27, 29 P.2d 139, 140, involving probate of separate and community property, it was said:

"It seems that when the marital relation is dissolved by death the law casts the duty upon the personal representative of the decedent to attend to the administration of the community property, at least for the purpose of liquidating the community debts. It requires that he make an inventory of and cause to be appraised all of the estate of the decedent, including 'the community estate' (section 3958, Rev. Code 1928), and that the inventory show 'what portion of the property is community property and what portion is the separate property of the decedent' (section 3960). While it is provided that upon the death of a husband or wife one-half of the community property shall go to the survivor, it 'passes charged with the debts against it' (section 985). Community debts are those contracted by the husband during the marriage and the community property is liable for them (section 2175). Since the survivor's one-half interest in the community is assigned or set over to him by operation of law, there is really no necessity for administration of it unless there are debts. We have so held. Estate of Wilson, 19 Ariz. 205, 168 P. 503.

"If, however, there are community debts, the most convenient, speedy, and practical [65 Ariz. 14] method of clearing the estate is to confer on the personal representative of the decedent the administrative right and power subject to the directions of the probate court, to collect its assets and pay its debts. This is what we think the Legislature intended should be done. The expenses of administering the community property should, then, be borne by the whole community. Any charges against the community not authorized as expenses, or any claim not a community debt or obligation,

Page 110

should not be paid out of the ...

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