In re WARREN'S ESTATE.
Opinion Modified on Rehearing November 17, 1952. See 249 P.2d 948.
Judgment affirmed as modified.
Byrne & Byrne, of Prescott, for exceptor and appellant.
Crawford & Baker, of Prescott, for the executrix and appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[74 Ariz. 320] This is an appeal from decree of distribution and an order approving the final account of the executrix, Violet Irving, of the estate of John Warren, deceased. John Warren died intestate on December 9, 1938, and letters testamentary were issued December 30, 1938 to his widow, the executrix named in his will, now Violet Irving.
John Warren's estate consisted of a community interest in a 5-room house, a store and dwelling situate in Bagdad, Arizona; two warehouses, and the land on which the buildings were situate. He also owned an equity in what is described as the Cutler house in Skull Valley, furniture, shares of stock in a copper company, and a promissory note. The duly-appointed appraisers [74 Ariz. 321] valued the entire community estate at $ 11,400. The creditors' claims submitted to and approved by the executrix amounted to $ 12,000.
The executrix was given permission by the lower court to continue operating the grocery store in Bagdad which her husband had been operating prior to his death. She paid the existing debts from profits realized from the business and with moneys she advanced from her salary as postmistress. She made and filed six accounts from 1938 to 1948 which were duly approved by the lower court, and then filed her final account on September 22, 1948. Prior to the filing of the final account she applied to the court for permission to sell the store. An order was issued granting her the right to sell it. Mrs. Irving, the executrix, sold the store to her son John Warren, Jr., for $ 16,500, John executing a promissory note to Mrs. Irving for that amount. In the final account the executrix asks for payment to her of wages
for the period of December 9, 1938 to December 9, 1944 at $ 200 per month, and for $ 300 per month up to September 9, 1948 when the assets of the store were sold to the son.
The trial court made findings that Mrs. Irving had rendered extraordinary services to the estate, in addition to her regular services as executrix. While making no order as to compensation for her regular services as executrix, the trial court directed that Mrs. Irving be compensated for her extraordinary services on the basis of $ 150 per month, covering the time from her appointment to the date of the filing of her final account, and, in addition, gave her rent-free, the use and occupancy of a part of the premises owned by the estate for living quarters occupied by her during said period. This compensation left no assets in the estate for distribution.
The testator disposed of his interest in the community by giving to his surviving wife, one-half thereof, and the other half to his wife as trustee for appellant, her daughter by a previous marriage, and John Warren, Jr., son of the deceased and Mrs. Irving, executrix and trustee. The will provided that the trust estate should remain intact until the beneficiaries under the trust should each attain his majority.
It should be remembered that the testator appointed Violet Warren Irving executrix of the entire estate and trustee for the shares left to his children. Where trust duties are imposed by the testator upon a testamentary trustee who is also a devisee and legatee as well as an executor under the will, such executor cannot act as trustee until there has been a distribution of the trust estate. Jones v. Broadbent, 21 Idaho 555, 123 P. 476. For a later and more complete discussion of the above problem see also In re Howard's Estate, 108 Utah 294, 159 P.2d 586. In the instant case the executrix at no time acted as trustee or if she did it was without authority in law.
The decree of distribution was finally rendered June 29, 1951, giving the executrix [74 Ariz. 322] three-fourths of the estate and one-eighth each to the children of the testator as the will of the testator provided.
The appellant, Aileen Inman, is the daughter of the appellee and the stepdaughter of the deceased. At the time of decedent's death she had attained her majority. She now appeals from the final order and decree of distribution of the trial court and assigns eight errors in support of her appeal.
The first assignment of error states that the executrix failed to include in the charges against her, in her accounting of the probate estate, the income received by her as executrix from the business she conducted on behalf of the estate, from the period of her administration until the date of sale to her son, John Jr.
It is well settled (and a citation of authorities is unnecessary) that an executor owes a distinct and binding duty to the devisees and creditors alike to properly account to them through the court concerning the management of the estate. In the case at bar, the store business which was operated by the executrix in the performance of her duties is the most important duty she had to perform. In all, she made seven accountings to the court as to the manner in which she was carrying on the business generally. At no time did her accounts distinctly set forth the exact income received from the business. With such accounting it was impossible to see how much money she had expended for various sundry items. Bancroft, Vol. III, 2d Edition, p. 1677, says however:
"* * * There can be no presumption of negligence or wrongdoing; the presumption is rather to the contrary, that an executor or administrator acted regularly and duly performed the duties of his trusts, unless irregularity and neglect appear on the very face of his accounts. Mere proof of neglect in accounting does not raise an inference ...