In re FARSON'S ESTATE. MacPHERSON
VALLEY NAT. BANK OF PHOENIX.
Rehearing Denied May 25, 1954.
[77 Ariz. 198] Manuel Avalos and Nolen L. McLean, Tucson, for appellant.
Knapp, Boyle, Bilby & Thompson, by T. K. Shoenhair, Tucson, for appellee.
On March 29, 1950, appellant, John Frederick MacPherson, was appointed guardian of the person and estate of his mother, Pearl L. Farson, a mentally incompetent
person. The estate was appraised at $322,125.75. In the course of the administration of this estate, appellant submitted two accountings which were approved in the routine manner. On October 31, 1951, he filed his third account and report which was heard December 6, 1951, and was not approved. December 31, 1951, the Probate Judge wrote the attorney for appellant, stating:
'I feel that I would be derelict in my duty if I were to approve the third account and report filed in this court * * *.
'I understand that the guardian is the only heir of the estate of the ward, and that some years ago the ward executed a will naming the guardian as sole beneficiary. I also understand that the ward is very seriously ill and in all probability cannot live many months longer. I also understand that the expenditures made from the ward's estate by the guardian were not made in bad faith and that there was no attempt by the guardian to defraud anyone or to pursue any fraudulent course of action. I also understand that the ward's estate is probably in excess of $200,000.00, which is probably far more than ample to keep her in comfort for the remainder of her life.
'The fact remains, however, that this account and report shows an expenditure of more than $40,000.00 between January 1, 1951, and September 1, 1951. I cannot * * * justify expenditures of this size * * * which constitute a reduction of the principal of the estate by one-sixth or perhaps as much as one-fifth.
'While it appears that the guardian is the only heir, I cannot take judicial notice of such a fact any more than I can take judicial notice of the validity of the apparent last will and testament of the ward or whether it is * * * the ward's last will and testament. While it is apparent * * * the ward will not live another 10 years, I cannot say as a matter of fact that she will not live that long and if expenditures were approved at the same rate in the future as they have been [77 Ariz. 199] made in the past, it is obvious that the ward would be pauperized long before her death. I cannot justify the maintenance of a home in which a relative of the ward, the guardian, and a servant lived and were supported from the ward's estate, the more particularly so when the ward was hospitalized during most of the time. I cannot justify the expenditures of money from the ward's estate for the maintenance of an automobile and a jeep when the ward was totally bedridden during that period. There are many other items in the account and report which cannot be justified at the present time.
'I am further disturbed by the fact that the file shows petitions for orders presented to a judge other than the probate judge of this court and the securing of the signature of said judge upon said orders during a time when the probate judge was present and should have been given the opportunity to consider said petitions. This is particularly true of the order signed on December 8, 1951, pursuant to a petition filed on the same date at a time when you knew that I had under advisement the matter of approval of the acts of the guardian heretofore performed herein.
'The first and second accounts and reports * * * were approved * * *, but the guardian should take warning that the approvals of annual or intermediate accounts are not conclusive and are only prima facie evidence of the correctness of the account and are subject to re-examination upon the hearing of the guardian's final account.
'For the reasons stated herein, therefore, I regretfully inform you that I am unable to approve the third annual account and report.'
January 28, 1952, appellant filed a third amended account and report. Hearing was had thereon, February 16, 1952. At the close of the testimony offered to explain and justify the expenditures in the account,
the court found that there was no substantial change in this account and report from the original third account and report. Reiterating what he had said in his letter and explaining that therefore the amended account and report were unacceptable, the court entered the following orders: Third amended accounting, disapproved; appellant removed as guardian of the estate; appellee, bank, appointed guardian upon qualifying and posting proper bond; froze the estate checking account and ordered that outstanding checks not be honored; and, froze the personal safety deposit box of appellant. And, the lower court stated, as added grounds for these orders, the fact that appellant had been authorized only two months before the hearing to borrow $5,000 for the estate; that the court had received many calls and similar notices from nurses and persons employed by the estate and [77 Ariz. 200] who had not been paid for ...