In re MOORE'S ESTATE. MOORE
Appeal from Superior Court, Pima County; John D. Lyons, Jr., Judge.
Petition by Yndia S. Moore, surviving widow of James P. Moore, deceased, to have set aside a probate homestead wherein James C. Moore filed objections. From an order denying petition, petitioner appeals.
Order set aside and matter remanded.
Moore, Romley & Roca, of Phoenix, for appellant.
Krucker & Fowler, of Tucson, for appellee.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
[67 Ariz. 66] This is an appeal by Yndia S. Moore, the surviving widow of James P. Moore, deceased, from an order of the Superior Court sitting in probate, denying her petition to have set aside a "probate homestead" provided for under section 38-902, A.C.A.1939. The matter is presented upon an agreed statement of facts, section 21-1830, which may be summarized as follows:
James P. Moore died intestate March 30, 1946, leaving him surviving his widow Yndia S. Moore, appellant here, Diane R. Moore, a minor daughter of 14 years, and James C. Moore, an adult son, appellee here. Yndia S. Moore qualified as administratrix and caused an appraisal to be returned to the Pima County Superior Court, showing total assets of the estate at $ 15,964.19, severally consisting of the family home in Tucson occupied by appellant and Diane R. Moore, valued at $ 15,000 in gross (with a net value of $ 8,000 after deducting the mortgage) and personal property amounting to $ 964.19. All property, both real and personal, is community property.
James P. Moore, the decedent, not having selected, designated, nor recorded a homestead during his lifetime, Yndia S. [67 Ariz. 67] Moore filed her petition for an order selecting, designating, and setting apart a homestead for her use and for the use of Diane R. Moore, the minor child of the decedent, and, in particular, asked that the family home be so selected. Proper notice having been given, James C. Moore, the adult son and appellee here, appeared through his counsel and filed written objections to the granting of the petition. At a hearing on the petition, evidence was received showing that no homestead had been selected during the lifetime of the decedent; that the family home was indivisible (thus making impossible the selection of a part only as a homestead); and that all debts, charges, and funeral expenses had been paid. Upon the objection of
James C. Moore that the court was without jurisdiction to select as a homestead property of a value in excess of $ 4,000, the lower court, having had the matter under advisement, entered an order on November 18, 1946, denying the petition to select a homestead. This appeal followed.
There is but one assignment of error, which reads: "The court erred in denying the petition of Yndia S. Moore for an order selecting a homestead for the reason that the probate court is without discretion to deny a petition for the selection of a probate homestead and is not bound by the value restriction imposed upon homesteads selected prior to death."
under which appellant contends that as a matter of law, first, "The provisions of Section 38-902, Arizona Code 1939, are mandatory and the Probate Court is without discretion to refuse to select, designate and set apart a homestead for the use ...