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Pintek v. Superior Court In and For Cochise County

Supreme Court of Arizona

June 18, 1958

John PINTEK, as guardian and Trustee of John Anthony Stover and Mary Ellen Stover, minors, Petitioner,
SUPERIOR COURT of the State of Arizona in and for the COUNTY OF COCHISE, and joseph Kesmar, as executor of the extate of Alvena M. Stover, deceased, Respondents.

[84 Ariz. 280] John Pintek, Bisbee, for petitioner.

Wesley E. Polley, Phoenix, for respondents.

UDALL, Chief Justice.

This original proceeding was initiated by Attorney John Pintek (hereinafter termed petitioner), acting as guardian and trustee of the minors named in the caption, against

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the superior court of the State of Arizona in and for the County of Cochise and Joseph Kesmar as the executor of the estate of Alvena M. Stover (hereinafter termed respondents). Petitioner filed with this court a multitude of general grievances (79 in number) setting forth how this estate had, as he claimed, been mishandled. Being unsure of his remedy, he sought in the alternative, either a writ of certiorari, or prohibition, or mandamus, or as he terms it, a 'writ of review'. On February 25, 1958, after an informal hearing under Rule I, Rules Supreme Court, 17 A.R.S., and after separating the 'wheat from the chaff', we issued an alternative writ of mandamus directing respondents to close and distribute said estate or show cause why same should not be done. The response and reply [84 Ariz. 281] to said writ were filed and the matter ordered submitted.

A petition of similar tenor had, prior thereto, been presented to the Honorable Jesse A. Udall, Judge of the Superior Court from Graham County, to whom the Stover Estate matters had just been assigned by the Honorable Herbert F. Krucker, Judge of the Superior Court from Pima County. Inter alia said petition did pray for an order compelling executor Joseph Kesmar to bring the administration of said estate to a close and obtain from the court a distribution of the residue thereof to those lawfully entitled thereto. Inasmuch as said petition in effect was also asking for a 'review' of all prior proceedings it is readily understandable why Judge Udall refused to issue an order to show cause, as apparently he felt the matter was one of the cognizance of the supreme court of the state rather than a court of concurrent jurisdiction. The refusal of the respondent court to assume jurisdiction and to order the estate closed forms the basis for the instant proceeding.

This court is not a stranger to the Stover Estate, as in all four matters involving it have reached us, viz.: (1) Pintek v. Superior Court, 1954, 78 Ariz. 179, 277 P.2d 265, concerning the right and propriety of a judge to preside in such proceedings; (2) Pintek v. Superior Court, 1956, 81 Ariz. 255, 304 P.2d 392, wherein we restrained the court from authorizing payment of certain attorney's fees and expenses from said estate; (3) an appeal now pending (incomplete and undetermined) entitled Pintek, as guardian and trustee v. Kesmar, as executor (docketed November 25, 1957, our number 6586); and (4) the instant proceeding. As many of the basic facts relative to the Stover Estate are set forth in the reported decisions, supra, they need not be repeated here.

Respondents urge as grounds for dismissal of the petition and to quash the writ: (1) insufficient verification of the petition; (2) failure to state sufficient facts for issuance of the writ; (3) that mandamus is not the proper remedy; and (4), the estate is not in a condition to be closed. The grounds stated in (1) and (2) are wholly without merit and hence will not be further considered.

(3) Is mandamus the proper remedy?

A.R.S. § 12-2021 states when mandamus may issue. It reads:

'A writ of mandamus may be issued by the supreme or superior court to any person, inferior tribunal, * * * to compel, when there is not a plain, adequate and speedy remedy at law, performance of an act which the law specially imposes as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right of office to which he is entitled * * *.'

[84 Ariz. 282] (a) Have the respondents a duty to close and distribute said estate?

Testatrix died July 9, 1952 and her will was shortly thereafter admitted to probate. Petitioner was qualified as executor and issued letters testamentary on August 5, 1952. He resigned and on March 15, 1955 respondent court entered an order approving such resignation. Following this, the present executor, Kesmar, was issued letters testamentary. After a lapse of nearly six years the estate has not been closed

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nor distributed and the attorney for the present executor asserts the executor is required by law to administer the estate until the minors reach ...

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