Burns v. Superior Court
Burns v. Superior Court
Opinion of the Court
This matter came before us on the petition for writ of mandamus of Julia C. Burns to compel the respondents, The Superior Court of Pima County, Honorable Lee Garrett, and The Valley National 'Bank of Arizona, as Executor of the Estate of Dorothy Davidson Miller, Deceased, to order The Valley National Bank of Arizona to deliver possession of the real property commonly known as 2517 E. Seneca Street, Tucson, Arizona, to the petitioner as devisee of said property. After a hearing, we issued an alternative writ.
The facts upon which the writ was issued are:
The" petitioner, Julia C. Burns, is named • as' a-devisee under- the Last Will and Tes
On the 30th day of September, 1964, pursuant to A.R.S. § 14-651, the petitioner sought to have delivered to her the possession of a parcel of real property known as 2517 E. Seneca Street, Tucson, Arizona, devised to her under the aforesaid Will. At that time, the time for presentation of claims against the estate had expired; the estate contained cash or cash equivalents in the sum of $26,551.04 in the hands of the Executor; the maximum amount of claims against the estate was $6,000.00; and the real property was vacant and producing no income.
At the time of filing her petition for possession,- the petitioner was indebted and presently is indebted to the estate aforesaid in the sum of $7,646.37 for an obligation owed to the decedent, which indebtedness is an asset of the estate. The record discloses that prior to filing her petition for possession, the petitioner, seeking to have distributed to her the identical property which is the subject matter of the proceedings, filed a petition for distribution before final settlement pursuant to provisions of A.R.S. § 14-652, which petition was denied." No appeal from that'order. was 'taken and the time therefor has expired. The respondents contend that the "denial of this petition is res judicata of the issues raised on the petition here; and that since no appeal was taken, that determination is final.
The distribution before final settlement provided for in A.R.S. § 14-652 is a distinct and separate proceeding from the delivery of possession provided for in •A.R.S. § 14-651. Because of this distinction, the acts of the court in disposing of any petition under A.R.S. § 14 — 652 can have no effect upon a petition presented to the court under A.R.S. § 14 — 651. Hence, the contention of the Executor that the determination by the respondent court on the petition for distribution is res judicata of the matter for which relief is sought in the petition for mandamus now before us is without merit.
A.R.S. § 14 — 651 reads as follows:
“When the time for presentation of claims against the estate has expired, the court shall order the executor or administrator to deliver possession of all the real property to the heirs at law or devisees, Unless it' appears to the court necessary that the rents, issues and profits of the real property be received for a longer period by the executor or administrator to pay debts of decedent, or that it will probably be necessary to sell the property for payment of such debts.” ' .
The alternative writ is made permanent.
Reference
- Full Case Name
- Julia C. BURNS v. The SUPERIOR COURT OF PIMA COUNTY, Honorable Lee Garrett, and the Valley National Bank of Arizona, as of the Estate of Dorothy Davidson Miller
- Cited By
- 1 case
- Status
- Published