JOHNSON et al.
SUPERIOR COURT IN AND FOR MARICOPA COUNTY et al
Original proceeding in mandamus by Janice LaPrade Johnson and others against the Superior Court of the State of Arizona, in and for the County of Maricopa, and Thomas J. Croaff, one of the judges of said Superior Court, to compel respondent judge to fix and determine amount of, and to approve a supersedeas bond on appeal.
Peremptory writ issued as prayed.
Jennings, Strouss, Salmon & Trask, of Phoenix, for petitioners.
Thomas J. Croaff, in pro. per., H. S. McCluskey, and J. H. Morgan, both of Phoenix, for respondents.
Stanford, C. J., Udall, J., and C. C. Faires, Superior Judge, concur. La Prade, J., being disqualified, the Honorable C. C. Faires, Judge of the Superior Court of Gila County, was called to sit in his stead.
[68 Ariz. 69] This is an original proceeding in mandamus initiated by the petitioners against the Superior Court of Maricopa County and the Honorable Thomas J. Croaff, one of the judges thereof, to compel respondent to fix and determine the amount of, and to
approve, a supersedeas bond on appeal. The alternative writ of mandamus was issued and the respondent judge has made his return and answer.
The facts necessary to a determination of this matter are these: One Katherine Pius, the record owner and in possession of certain real and personal property, did on October 5, 1940, convey that property to the Phoenix Title and Trust Company in trust for certain purposes. The Title Company had managed this property from the date the trust was created until January 8, 1948, when Katherine Pius died intestate. Notwithstanding the provisions of said trust, one Pierce F. Pius, a beneficiary named therein, and for whose support the trustor had made provision, made claim to all of the property embraced within the trust upon the ground that he, as the surviving husband of the trustor, was entitled thereto. Whereupon the trustee, on March 3, 1948, filed a "complaint in interpleader and for instructions" in the Superior Court of Maricopa County, with all [68 Ariz. 70] of the persons named as beneficiaries in the trust agreement (among whom are these petitioners) being made parties defendant. The complaint asked that all of the defendants be required to appear and set forth their interest in the matter and that the plaintiff be instructed concerning the execution of the trust. All of the beneficiaries who filed answers, except Pierce F. Pius, admitted the execution of the trust, asserted its validity, and prayed that its provisions be enforced according to its terms. Pierce F. Pius, however, while admitting the execution of the trust, denied its validity upon the ground that the settlor had not been mentally competent when the instrument was executed, and upon the further ground that the property was community property and that he had not joined in the transfers to the trustee. He also prayed that administration be had upon the assets held by the Title Company, and that he be granted a family allowance of $ 300 per month from the corpus of the trust pending the determination of the action. Obviously administration of the settlor's estate could only be had after title and ownership of the property in question had been first determined and then by strictly following the probate law and procedure set out in Chapter 38, A.C.A.1939, relative to decedents' estates. Nevertheless, as a preliminary matter, the respondent proceeded to a hearing on the husband's prayer for a family allowance, at the conclusion of which the court, on August 5, 1948, entered the following order:
"Order, plaintiff, as Trustee, is authorized and directed to pay defendant Pierce F. Pius out of the Trust Estate, the sum of two hundred dollars ($ 200.00) each month, on the 1st of each month, beginning August 1, 1948, and continuing until the further order of this Court, as and for support of said Pierce F. Pius, pending this action."
Petitioners gave a timely notice of appeal from this order and also made application under the provisions of Sec. 21-1809, A.C.A.1939, for a stay pending appeal and for the fixing of a supersedeas bond. The Court denied the application and refused to fix and determine the amount of such a bond or to approve same, whereupon the instant suit was brought by these remaindermen.
In order to determine whether a peremptory writ of mandamus should issue against the respondents it is necessary for us to decide three principal questions: (1) Did the petitioners have a sufficient interest in the matter to entitle them to contest the order granting a family allowance to Pierce F. Pius, and may they bring this action of mandamus? (2) Is the order of the court of August 5, 1948, a reviewable order from which an appeal may be taken? And (3) do the petitioners have any other plain, speedy or adequate remedy at law so as to preclude them from maintaining this action?
While neither the legality of the order appealed from nor the validity of the trust [68 Ariz. 71] agreement itself is now before us, we must assume for the purpose of determining the petitioners' rights in this mandamus ...