275 P. 2 | Ariz. | 1929
George J. Smith and Edna A. Smith intermarried in the year 1879. Each had children by a previous marriage, and there were two *168 children born of the marriage. During the coverture Mr. and Mrs. Smith acquired approximately eighty acres of land near the city of Phoenix, it being admitted that this was community property. In the year 1908 Smith died, leaving a will which, so far as material, reads as follows:
"First, I desire all my just debts fully paid.
"Second, I give, devise and bequeath to my beloved wife, Edna A. Smith, all my property both real and personal, to have and to hold unto her, my said wife, for and during the period of her natural lifetime, to use and enjoy the same in any manner she may see fit, and at her death whatsoever remains of the same, I give and devise and bequeath to my three children in the following manner, to wit: to Mary J. Sears, my daughter, an undivided one-fifth and to Ernest Troy Smith, my son and Pearl Edna Roberson, my daughter, share and share alike, the remaining four-fifths of my property.
"Third, I hereby nominate and appoint my beloved wife, Edna A. Smith, sole executrix of this my last will and testament and I direct that no bonds be required of her as such executrix, and I further give unto my said executrix full power and authority to sell any or all of my estate, both real and personal, and invest the same in any manner she may see fit, carefully managing the same and keeping account of the same so that my estate may be traced from time to time and at her death go to my children as hereinbefore provided."
This will was duly probated in Maricopa county, and Mrs. Smith qualified as executrix and continued to act as such until her death in 1927. An inventory was filed and notice to creditors duly given, and at the time of the death of Mrs. Smith the community estate was in no manner indebted, but it had not been formally distributed by the court. During her lifetime she had sold a considerable portion of the realty, and at her death there remained some thirty-nine *169 acres of land and a little over $13,000 in cash, the proceeds of the community estate. She left a will, devising her estate to various persons and appointing Emma Teel, L.B. Morrell and Ada Silliman as executors thereof. We shall hereafter refer to them as appellees.
William R. Roberson then applied for letters of administrationde bonis non with the will annexed of the estate of Smith, which letters were duly issued to him. He made demand upon appellees for possession of all the property remaining in the hands of Mrs. Smith at her death, and, upon this demand being refused, brought suit against appellees, joining with him as party plaintiff Ernest T. Smith, a child of the marriage between George and Edna Smith. The case was heard before the court, and judgment rendered in favor of appellees, whereupon appellants have brought the matter before us for review.
In order that we determine the particular question at issue properly, it is necessary that we review some of the general principles of the law of Arizona in regard to community property and administration of estates. In the case of La Tourette v.La Tourette,
In the case of Le Baron v. Le Baron,
By the will of George Smith, his wife took a life interest in his half of the community, with a remainder over to his children. Under its terms, had she entirely dissipated the community estate, or had she proceeded as executrix to a partition, either of which she might well have done, the situation herein involved would not have arisen. She died, however, with the community still undivided, and upon her death the rights of the remaindermen under the will of her husband vested, as did the rights of the devisees under her will, as tenants in common. What, then, are the rights of the respective administrators?
We have held in the case of La Tourette v. La Tourette,supra, that the probate court, in administering community property, may assume jurisdiction of the whole of the estate in order to determine the debts chargeable against it, and to direct their payment out of the community property. And, indeed, this is *171
the proper course in most of the cases where either spouse dies, for, while the title to the property vests immediately upon the death without administration, it vests subject to community debts, and these debts follow the property into the hands of a purchaser, unless they have been settled or barred in the manner provided by statute. It is therefore generally advisable to administer the entire estate, but the only purpose of such administration is to see that all community debts are either paid or barred. If, therefore, it appears that there are no such debts, the interest of the surviving spouse certainly should not be subject to the expenses of the administration, it being of no benefit to such estate. Estate of Wilson,
Applying these principles of law to the present situation, we find that the remaindermen under the will of George Smith are tenants in common with the devisees under the will of Edna Smith. Appellant Roberson is administrator de bonis non of the estate of George Smith, and since the purpose of administering the entire community estate is the paying of the debts, and since the only possible excuse for applying paragraphs 859 and 967, Revised Statutes of Arizona of 1913, Civil Code, which grant the executor or administrator the right of possession of the estate of a decedent, to that portion vesting in the surviving spouse by right of ownership and not of descent, is to subject it to the debts of the community, there can be no question but that, in view of the fact such debts *172 had been settled years before the appellant Roberson was not entitled to the possession of the undivided half of the community vested in Edna Smith, and afterwards in her devisees. Nor do we think that he was entitled to the possession of the moiety of the estate which had vested in the remaindermen under the will of George Smith. The right of possession given to the executor or administrator by statute is merely for the purpose of enabling him in proper cases to pay the debts and legacies. Where there are none such to be paid, there is no valid reason why he should have possession of the estate.
This precise question arose in the case of Flood, Admr., v.Pilgrim,
The judgment of the superior court of Maricopa county is affirmed.
McALISTER and ROSS, JJ., concur.