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In re Hesse's Estate

Supreme Court of Arizona

February 10, 1947

In re HESSE'S ESTATE.
v.
GERCKE et al McNUTT et al.

Appeal from Superior Court, Pima County; John D. Lyons, Jr. Judge.

Proceeding in the matter of the estate of Catherine Hesse, deceased, wherein Elizabeth McNutt, and others, next of kin deceased, filed objections to executor's petition for distribution and the Most Reverend Daniel J. Gercke, Bishop of the Roman Catholic Church of the Diocese of Tucson, a corporation sole, Most Reverend Robert Armstrong, Bishop of the Roman Catholic Church of Sacramento, California, and Reverend Arthur F. Cramer, Pastor of All Saints' Church, Tucson, Arizona, filed motion for summary judgment to test sufficiency of the objections. From an adverse decree objectants appeal.

Motion to dismiss appeal granted.

Krucker & Fowler, of Tucson, and Charles E. Taintor and Scott Weller, both of Los Angeles, California, for appellants.

Clifford R. McFall and O'Dowd & O'Dowd, all of Tucson, for appellees.

Udall, Judge. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Udall, Judge.

This appeal arises out of the judicial interpretation of the provisions of the will of Catherine Hesse, deceased. The admission [65 Ariz. 170] of the will to probate, i.e. "the factum of the instrument", was affirmed by this court In re Hesse's Estate, (McNutt v. Gercke), 62 Ariz. 273, 157 P.2d 347. We then carefully refrained from expressing any opinion as to the "validity of any of the bequests or charitable trusts set forth in the will", for the reason that such matters were not properly before us.

Thereafter the lower court proceeded with the essential steps of administration. The appellants, who are next of kin and heirs at law of deceased, in April, 1945, filed their petition to determine heirship under Sec. 38-1519, A.C.A.1939. This petition was indefinitely postponed and a hearing was never had thereon. In June, 1945, the executor filed a final account and report and petition for distribution. The account and report was approved and settled. The appellants filed objections to the petition for distribution, and the appellees filed their motion for summary judgment to test the sufficiency and validity of such objections. On October 17, 1945, the court overruled appellants' objections, granted the motion for summary judgment, and entered a final decree of distribution, which distributed the estate in strict accordance with the express terms of the decedent's will. It was from this decree that this appeal was taken.

We are confronted at the outset with a motion to dismiss the appeal on the ground that the rules of this court governing appeals have not been complied with. Unfortunately, this motion was included within the appellees' brief and thereby escaped the early attention, which it deserved.

Page 218

Much time and effort by counsel in preparing briefs could have been avoided and oral argument made unnecessary had this motion been timely determined. For the guidance of the bar of this state may we suggest that the better practice would be to file any such motions under a separate cover.

The appellees' motion to dismiss asserts a failure by appellants to comply with certain provisions hereinafter set forth of Rule VII having to do with briefs and arguments, and of Rule XII governing assignments of error found on page 312 of Vol. 2, A.C.A.1939. The ...


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