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In re Jacob's Estate

Supreme Court of Arizona

December 28, 1956

In the Matter of the ESTATE of Taft JACOB, Deceased. Abe T. JACOB, John E. Jacob, George T. Jacob, and Mike Jacob, Appellants,
v.
Victor H. ARIDA, Administrator of the Estate of Taft Jacob, Deceased, Appellee.

Page 439

[81 Ariz. 290] Hall, Catlin & Malloy, and Russell E. Jones, Tucson, for appellants.

Cusick, Watkins & Frey, Tucson, for appellee.

UDALL, Justice.

The question presented by this appeal is whether, under the agreed statement of facts, the trial court committed reversible error in denying a petition to revoke the letters of administration theretofore issued to appellee Victor H. Arida, for administration of the estate of Taft Jacob, deceased. It is asserted administration was no longer necessary as there were no creditors of said estate and no assets therein.

The matter is presented to us upon an agreed 'Statement Of The Case' which bears the approval of the presiding judge pursuant to Rule 76, Rules of Civil Procedure; hence, the facts are nowise in dispute. Succinctly stated in chronological order the record shows the following: Taft Jacob and his wife Mary Jacob had been residents of Tucson, Pima County, Arizona, for many years, and they had accumulated and estate consisting of both real and personal property. On July 11, 1946, Taft Jacob gave a power of attorney to his eldest son, Abe T. Jacob. The latter-apparently acting under this power of attorney-immediately proceeded to transfer, or purportedly transfer, all of Taft Jacob's property to various members of the latter's family, viz.: to Mary Jacob, wife, Abe T. Jacob, son, and S. A. Jacob, a brother. All of this property was community property of Taft Jacob and Mary Jacob, his wife.

Taft Jacob died intestate on July 21, 1946. He left surviving him his wife and seven children, namely: Abe T., John E., George T., 20 years, Mike, 15 years, James, 12 years, Richard, 7 years, and Rose Mary, 19 years. It will be noted that at his death all of his children, except Abe T. and John E., were minors. No steps were taken to probate the estate of Taft Jacob at that time.

On April 23, 1952, the surviving spouse, Mary Jacob, and Abe T. Jacob, John E. Jacob and wife, and George T. Jacob and wife, entered into a family settlement agreement, the details of which it is not necessary to set forth.

It was not until November 21, 1952 (6 years and 4 months after decedent's death), that the surviving spouse, Mary Jacob, filed in the superior court a petition for letters of administration. This petition was in the usual form, alleging the jurisdictional facts together with an allegation that decedent left an estate in Pima County consisting of real and personal property having [81 Ariz. 291] a valuation of $110,000. Prior to a hearing on this application, Abe T., John E. and George T. Jacob, three of the heirs at law of decedent, filed a motion to dismiss and an objection to the petition for letters of administration, upon the grounds that the property described in the petition did not belong to the estate, that the estate did not own any property, and that there were no creditors of said estate.

When said petition came on for hearing it was stipulated by all of the interested

Page 440

parties that the court might enter an order appointing petitioner administratrix of the estate providing that such order reversed to said heirs the right to contest the validity of the administration of said estate. On December 8, 1952, letters of administration were issued to the widow, Mary Jacob, the order of appointment containing the proviso that the granting of said petition did not in any manner determine nor affect othe ownership of the property set forth therein. Ten days later the three older heirs-now joined by their brother Mike-stipulated that Victor H. Arida, the nominee of the surviving spouse, could be substituted as administrator in place of their mother, Mary Jacob. The court entered an order on December 18, 1952, authorizing the substitution under the same conditions heretofore set forth and letters of administration were issued to Victor H. Arida on December 22, 1952.

On December 19, 1952, the court appointed Abe T. Jacob as guardian ad litem of James and Richard Jacob, minors, and on January 8, 1953, the court also appointed Abe T. Jacob as guardian ad litem of his sister, Rose Mary Jacob, an incompetent.

Pursuant to court order Administrator Arida gave notice to creditors and proof of publication was made. No creditors' claims were filed within the statutory period. The administrator filed a purported inventory and appraisement in the estate proceeding on November 5, 1954, listing the property that all agree belonged to decedent prior to execution of the power of attorney. On December 23, 1953, Administrator Arida filed a civil action in the superior court (No. 42194 Pima County) against the adult sons, Abe T., John E., George T., and Mike Jacob, and against S. A. Jacob, a brother of decedent, and Abe T. Jacob as guardian of his minor brothers James and Richard Jacob and of the incompetent sister, Rose Mary Jacob, demanding judgment against said defendants for the value of the property which the administrator claimed belonged to the Taft Jacob estate. It is alleged in the complaint that said power of attorney was illegally exercised by Abe T. Jacob and that the family settlement agreement is invalid.

On January 12, 1955, Abe T. Jacob, for himself and on behalf of all of the other heirs of decedent, filed a verified petition [81 Ariz. 292] for revocation of letters of administration upon the grounds that there were no creditors of the estate; hence, the court either lacked jurisdiction to enter its order appointing the administrator, or it lost jurisdiction to continue administration of said estate due to the absence of creditors and that it is unnecessary that the estate be further administered. An order to show cause why said letters should not be revoked was issued.

At the time the matter was presented to the court, the adminstrator filed an affidavit of heir James Jacob in which the latter stated: he had just reached the age of majority and had not received any of the corpus of the estate of his deceased father; no one was appointed his legal guardian during his minority; he repudiated the family settlement agreement entered into on April 23, 1952; and, further, he demanded that the administrator continue with the administration of said estate in order that there might be an accounting of the rents, issues, profits and corpus of his deceased father's estate and that he might receive his proportionate share therefrom.

The four brothers, Abe T., John E., George T., and Mike Jacob, filed a counter affidavit with the court, in which they assert that their brother James had authorized them to represent him in all matters pertaining to all pending litigation and that he had consented to the answer filed in the foregoing civil action. Furthermore, they give their version of the family settlement agreement and avow that the affiants have always considered that they held all of said property ...


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