In re WARREN'S ESTATE.
Former opinion modified in accordance with opinion and in all other respects affirmed.
Byrne & Byrne, of Prescott, for exceptor and appellant.
Crawford & Baker, of Prescott, for executrix and appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[74 Ariz. 386] The principal facts in this case are reported in Ariz., 248 P.2d 873. On this motion for rehearing we are confronted with an unusual situation. Appellee urges this rehearing upon a matter not raised in her brief or in oral argument; hence it was not before this court when we rendered our decision. Since this new matter has to do with a solemn judgment of the lower court which was not appealed from, we are obliged to grant a rehearing.
In our original opinion we set aside the allowance made to the executrix for extraordinary services in the sum of $ 150 per month during the probate of the estate as set forth in the final decree of distribution. Our opinion ignored the fourth account because it was not in issue. Appellee's motion for a rehearing is based on the proposition that as a matter of law our opinion, which wiped out the final decree insofar as extraordinary services were concerned, should now be rewritten so that the fourth account will be given full force and effect. We agree with appellee's contention, hence the trial court's order approving the fourth account -- not having been appealed from, is final and res judicata. The order approving the fourth account granted executrix $ 300 per month for extraordinary services. This $ 300 included $ 100 a month that the executrix agreed should be deducted as her living expenses for the six years, thereby making the estate liable for $ 200 a month for her [74 Ariz. 387] services. The court in its decree acknowledged that due notice was given by appellee when she rendered the fourth account. This order was never appealed from by the appellant herein and therefore, according to our statutes, is res judicata.
Section 38-1313, A.C.A.1939, provides:
"Settlement conclusive -- Exception. -- The settlement of the account and the allowance thereof by the court is conclusive against all persons interested in the estate except persons under any legal disability may move, for cause, to reopen and examine the account, or may proceed by action against the executor or administrator, either individually or upon his bond, at any time before final distribution. In any action brought by any such person, the allowance and settlement of the account is prima facie evidence of its correctness."
That section was taken from the California Probate Law. Estate of Sullivan, 51 Ariz. 483, 78 P.2d 132. See Cal.Civil Procedure, paragraph 1637. 12 Cal.Jur. 62, section 828, states:
"Conclusiveness -- The statute provides that the settlement of an account and the allowance thereof by the court or upon appeal is conclusive against all persons in any way interested in the estate, except those in whose behalf the statute contains a saving clause. The settlement is, therefore, conclusive upon the heirs, legatees and creditors, or persons succeeding to ...