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In re Roseman's Estate

Supreme Court of Arizona

March 21, 1949

In re ROSEMAN'S ESTATE. HOWARD et al.
v.
ROSEMAN

Appeal from Superior Court, Pinal County; Henry C. Kelly, Judge.

Proceeding in the matter of the estate of Dan F. Roseman, deceased, on the petition of Walter L. Howard and Gustave J. Romo for the removal of William P. Roseman as executor of the estate. From an order refusing to remove William P. Roseman, petitioners appeal.

Appeal dismissed.

Otis J. Baughn, of Phoenix (Moore & Romley, of Phoenix, on Reply Brief and Oral Argument only), for appellants.

D. V. Mulhern and B. H. Gibbs, both of Phoenix, for appellee.

De Concini, Justice. Udall and Stanford, JJ., concur. Phelps, Justice (specially concurring).Note: Due to illness, the CHIEF JUSTICE did not participate in determining this appeal.

OPINION

De Concini, Justice.

[68 Ariz. 199] This is an appeal by Walter L. Howard and Gustave J. Romo, who were named alternate executors in the will of Dan F. Roseman, deceased, from an order refusing to remove the present executor of said estate.

The case arose in this manner. Dan F. Roseman died April 15, 1943, in Ray, Pinal County, Arizona. He left two wills, one dated August, 1928, with a codicil thereto executed in February, 1943, and a later will executed April 12, 1943. The latter named Tom MacKenzie and William P. Roseman (deceased's brother) as executors, and appellants herein as alternate executors.

The first action taken in the estate was that of D. V. Mulhern (now attorney for appellee herein) who applied for and was granted special letters of administration of deceased's estate in December, 1943. On March 4, 1944, Tom MacKenzie applied for letters testamentary under the last will for appellants herein as alternate executors, stating that he declined to act and that the other named executor, William P. Roseman, was a nonresident. Then William P. Roseman applied for letters testamentary under the first will; asked the court to ascertain which will was the legal will of deceased; and objected to the appointment of Howard and Romo as executors. The two probate petitions were consolidated and heard at the same time before the Honorable W. C. Truman, resident judge of the superior court of Pinal county, on April 10, 1944. At that hearing the lower court admitted the will of April 12, 1943, to probate; denied Howard and Romo the right to act as executors; and appointed appellee William P. Roseman as executor, who then entered upon his duties as such.

Appellee as executor brought a civil action in Pinal county against Tom MacKenzie for the return of a building and loan certificate in his possession alleged to belong to the estate reputedly worth $ 12,500.

Two years and five months later, in September, 1946, appellants petitioned the court

Page 868

for removal of William P. Roseman as executor on the ground that "he was not at the time of his appointment a resident and has not since been and he is not now a resident of the state of Arizona." The court below by an ex parte order suspended the appellee's power as executor, and cited him to show cause why he should not be permanently removed as executor. The parties stipulated to the assignment of the case to Honorable Henry C. Kelly, Judge of Superior Court of Yuma County. The matter was heard on March 11, 1947. The trial court thereupon vacated the previous ...


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