In re HAYWARD'S ESTATE.
VAN HAGEN et al NEWTON et al.
Appeal from Superior Court, Mohave County; Levi S. Udall, Judge.
Proceeding in the matter of the estate of Theodora L. Hayward, deceased. A proceeding was brought under Code 1939, §§ 38-1518 to 38-1521, to determine heirship in ancillary probate of deceased's will by Winifred Van Hagen and others, opposed by J. Harry Newton, executor, J. Harry Newton and others. From an adverse judgment, J. Harry Newton, executor, J. Harry Newton and others appeal.
See, also, 63 Ariz. 1, 159 P.2d 307.
Carl G. Krook, of Kingman, for appellants.
Woolf & Shute and Langmade and Langmade, all of Phoenix, for appellees.
Faires, Superior Judge. Stanford, C. J., and La Prade, J., concurring.Note: Justice LEVI S. UDALL having disqualified, as he was the trial judge, the Honorable C. C. FAIRES, Judge of the Superior Court of Gila County, was called to sit in his stead.
Faires, Superior Judge.
[65 Ariz. 230] This is a proceeding to determine heirship in the ancillary probate of the will of Theodora L. Hayward, a resident of the State of Colorado, brought by appellees, heirs of the decedent, under the provisions of Sections 38-1518 to 38-1521, A.C.A.1939.
The facts out of which this matter arose are as follows:
Theodora L. Hayward died testate in Delta County, Colorado, on or about the 14th day of August, 1939, leaving an estate in Mohave County, Arizona, consisting of an undivided one-half of the real and personal property located in said County of Mohave then in the residue of the estate of her deceased uncle, John Watson Thompson, that was given and devised to her by him in his last will.
The decedent left a will dated July 27, 1939, in which she makes gifts to her heirs and other persons and bestows the remainder of her estate in trust for the Town of Paonia, Colorado, or the Paonia schools, pursuant to Clause Fourteenth, which reads: "Fourteenth: I give, devise and bequeath all of the residue of my estate to J. Harry Newton and C. D. Hailey in trust, and I direct that such residue be used by said trustees for any purpose deemed by them beneficial to the Town of Paonia, Colorado, or the Paonia schools."
On or about the 18th day of September, 1939, the last will of the testatrix, Theodora L. Hayward, was admitted to probate in the County Court of Delta County, Colorado, and letters testamentary thereon were issued to one J. Harry Newton, a resident of that county. On or about the 11th day of April, 1940, the Superior Court of Arizona, in and for the County of Mohave, admitted said will to ancillary probate, appointing the said J. Harry Newton as executor under said will. Winifred Van Hagen, who instituted the proceeding involved [65 Ariz. 231] in this case, appeared as contestant and filed her opposition to ancillary probate. The judgment of the Superior Court admitting the will to ancillary probate was affirmed by the Supreme Court of Arizona on March 3, 1941, Van Hagen v. Newton, 57 Ariz. 51, 110 P.2d 956.
On October 4, 1943, Van Hagen filed her petition for the determination of heirship under Section 38-1518, A.C.A.1939, followed by her complaint in said proceeding to determine heirship filed on December 15, 1943.
Based upon this petition the Superior Court in and for Mohave County, Arizona, Honorable J. W. Faulkner presiding, entered an order as provided by law, requiring all persons claiming rights or interest in said estate of said testatrix to appear December 14, 1943, and set forth their respective claims. This order was entered as of the same date the petition was filed and the following persons were named as parties to the proceedings; J. Harry Newton, the executor in ancillary probate, J. Harry Newton and C. D. Hailey, who are named as trustees in the residue clause of the last will of said deceased, Grace M. (Mrs. Robert) Birnie, Mabel Perry, Frances Hayward, James Hayward, Winifred Van Hagen, Charlotte I. Thompson and John Watson (Jack W.) Thompson, the executors or administrators of the estates of Harvey Hayward and Clara Amy Hayward, deceased; John Doe and Richard Roe, whose real names are unknown and who are therefore mentioned by fictitious names, they being the persons who claim some interest in said estate as heirs at law of said decedent, or as executors or administrators of the estates of Harvey Hayward and Clara Amy Hayward who were two heirs at law of said decedent but who have died since the date of the death of the said Theodora L. Hayward.
Thereafter, the executor and said trustees filed their motion to dismiss the action as barred by the one ...