In re ROWLANDS' ESTATE.
CUTHBERT et al DISCOMBE
Reversed and remanded with directions.
Baker & Whitney, of Phoenix, for appellant.
William C. Eliot, of Phoenix, for appellees.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[73 Ariz. 339] This is an appeal by Maria Discombe from an order of the probate court approving a Decree of Distribution in the estate of Eva Rowlands, deceased. The appeal is from the order of distribution of the estate remaining after specific bequests had been distributed.
Eva Rowlands, a widow, died testate in Phoenix, Arizona on February 17, 1949. Her holographic will was dated April 26, 1948 and duly admitted to probate. The will provided for a number of specific bequests of personal property, i. e., jewelry, china, silver and household furnishings to certain named persons. Several of testatrix's husband's relatives living in Wales were remembered with money bequests. Other than those relatives by marriage, the only person to receive a money bequest in addition to any personal property was Maria Discombe who was the maid of the testatrix. The appraised residue of the estate is $ 38,000.
The will nominated "Lucy Cuthbert or Mr. Hugh Cuthbert, Sr., of Phoenix" to serve as Executor of the will and directed that no bond be required of such person. Mrs. Hugh (Lucy) Cuthbert, Sr., declined to serve and her husband petitioned for and was qualified as the executor.
The disputed portion of the will reads as follows: "* * * All things not mentioned in my Will I leave it up to Mr. and Mrs. Hugh Cuthbert, Sr. to distribute to any of my close friends. Please give generously to Maria Discombe who has been a faithful maid. * * * If I have not mentioned anything I ought to have mentioned I leave it to your judgments Mr. and Mrs. Hugh Cuthbert Senior. * * *"
The petition for decree of final account and distribution filed by Hugh Cuthbert Sr. proposed to distribute such residue to himself and his wife. Maria Discombe filed objection to this proposed distribution. The probate court, by minute entry, denied objector's petition, and ordered: "* * * that in pursuance of and according to the terms and provisions of the last will and testament of the said Eva Rowlands, deceased, duly admitted to probate as aforesaid, all the rest, residue and remainder of said estate consisting of the following described assets and any and all other property of any kind and character whatsoever belonging to the estate of said deceased, or [73 Ariz. 340] in which said estate may have any interest, be and the same is hereby distributed to Hugh T. Cuthbert, Sr., and Lucy Cuthbert, his wife. * * *."
Maria Discombe appeals from this portion of the final decree of distribution. Four assignments of error are ...