Buhler v. Adkins

OPINION

FROEB, Judge.

Appellant Alice Ida Buhler married John W. Buhler on April 3, 1977. On April 16, 1977, appellant returned to her home in England. From there she wrote Mr. Buhler and informed him that their marriage had been a mistake and that she intended to use her former name in England. At the same time appellant informed a niece living in the United States that she intended to remain in England and resume her former life. Mr. Buhler filed for dissolution of the marriage in Arizona, but died before the dissolution became final. In a pro per response to the dissolution petition, appellant stated: “I have never at any time (nor do I now) advance any claim or pecuniary interest in his property or effects.” Nevertheless, she subsequently filed, in connection with the probate of Mr. Buhler’s will, a petition for allowance of claim in the amount of $15,500.00 pursuant to A.R.S. §§ 14 — 2401, 2402, and 2403.¹ The claim was denied by appellee, the personal representative of the estate of John Buhler.

Following a hearing and the submission of evidence and memoranda, the trial court entered a partial final judgment denying the appellant’s claim.

The personal representative maintained that appellant was not entitled to either the homestead or the exempt property allowance in A.R.S. §§ 14-2401 and 2402 due to the fact that she was not a resident of Arizona when her claim was filed. In regard to the family allowance in A.R.S. § 14-2403, the personal representative maintained that appellant was not dependent upon the deceased and that the reasonable amount of such allowance should be zero.

We first consider appellant’s argument that as the surviving spouse of the deceased domiciliary she is entitled to the homestead and exempt property allowances in A.R.S. §§ 14-2401 and 2402 notwithstanding the fact that she is a nonresident.

The mainstay of appellee’s position against these allowances is In re Graham’s Estate, 73 Ariz. 179, 239 P.2d 365 (1951) in which the Arizona Supreme Court held that a surviving spouse must be a resident of Arizona at the time of filing her petition to set aside a probate homestead. In reaching its conclusion, the court construed § 38-902 A.C.A., 1939, the probate homestead provision then in effect,² and held, quoting 21 Cyc., Homesteads, p. 470: “Homestead laws exist for the benefit of residents of the state . . .. A non-resident cannot claim the exemption, unless the statute clearly bestows the right upon him.” 73 Ariz. at 182, 239 P.2d at 367.

The key question before us is the extent to which the Graham decision operates as precedent in construing the provisions of the new probate code. If Graham does not bind us, we have little difficulty in accepting the argument that A.R.S. §§ 14-2401 and 14r-2402 apply to nonresident as well as resident surviving spouses.

The Graham case is grounded upon public policy underlying the then existing probate homestead law; it does not purport to be supported by any express language contained in § 38-902 A.C.A., 1939.

Although it is true that the new probate code was a comprehensive change in the probate laws in Arizona when it became effective January 1,1974, there is no indication from any of its provisions brought to our attention that the policy announced in the Graham case has been changed by the legislature. The language of A.R.S. §§ 14-2401 and 14 — 2402 gives no more reason to declare in this case that the code’s benefits are applicable to nonresident surviving spouses than did the language of § 38-902 A.C.A., 1939, give reason to declare in Graham that they were not applicable. Thus, in keeping with our duty to follow precedent, we apply the holding of Graham to these new probate provisions until construed to the contrary by the Arizona Supreme Court.

We would think otherwise if Graham depended upon the specific language of § 38-902 A.C.A., 1939, not found in A.R.S. § 14-2401 and A.R.S. § 14-2402. The fact that the new sections require the decedent to have been a domiciliary or the fact that A.R.S. § 14-2401 provides for a monetary allowance in lieu of the homestead exemption does not suggest a policy different from that announced in Graham. The new provisions serve the same fundamental purpose as the old, namely, to allow the surviving spouse a portion of estate property exempt from claims against the estate. The mere fact that the new provisions include certain revisions of old provisions does not offer us a sound reason to hold that Graham is inapplicable. Moreover, new probate code § 14-1103 lends further support for this view because it states: “Unless displaced by the particular provisions of this title, the principles of law and equity supplement its provisions.”

We turn next to the issue concerning the denials by the trial court of a family allowance pursuant to A.R.S. § 14 — 2403 (see footnote 1).

A.R.S. § 14-2403 gives the court discretion to grant a family allowance. Thus, we need not reach the question of residency of the surviving spouse in connection with the family allowance pursuant to A.R.S. § 14-2403 because the evidence supports a conclusion that no monies were required as a “reasonable allowance” to maintain appellant during administration. Both before appellant’s brief marriage to the decedent and after her return to England, she was financially independent, receiving pension and investment income. She continued to receive these monies during these proceedings. Under these facts, we cannot say that the trial court abused its discretion in denying the family allowance claim. See Estate of Nolan, 56 Ariz. 361, 108 P.2d 388 (1940).

Judgment is affirmed.

EUBANK, P. J., Department C, concurs.

1 . § 14-2401. Allowance in lieu of homestead

A surviving spouse of a decedent who was domiciled in this state is entitled to an allowance of six thousand dollars. If there is no surviving spouse, each dependent child of the decedent is entitled to an allowance of six thousand dollars divided by the number of dependent children of the decedent. The allowance provided in this section is in lieu of any homestead exemption the decedent may have had during lifetime under § 33-1101. The allowance provided in this section is exempt from and has priority over all claims against the estate except expenses of administration. The allowance is in addition to any share passing to the surviving spouse or child by intestate succession, but is chargeable against any share passing by the will of the decedent unless the will provides otherwise. As amended Laws 1976, Ch. 92, § 3.

§ 14-2402. Exempt property

In addition to the allowance in lieu of homestead the surviving spouse of a decedent who was domiciled in this state is entitled from the estate to value not exceeding three thousand five hundred dollars in excess of any security interests therein in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, dependent children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than three thousand five hundred dollars, or if there is not three thousand five hundred dollars worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the three thousand five hundred dollar value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except the expenses of administration, but the right to any assets to make up a deficiency of exempt property shall abate as necessary to permit prior payment of allowance in lieu of homestead and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by intestate succession, but is [are] chargeable against any share passing by the will of the decedent unless the will provides otherwise. As amended Laws 1976, Ch. 92, § 4.

§ 14-2403. Family allowance

A. In addition to the right to the allowance in lieu of homestead and exempt property, if the decedent was domiciled in this state, the surviving spouse and dependent children are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, for the use of the surviving spouse and dependent children. If the spouse is not living the allowance is payable to the children or persons having their care and custody. In case any dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his guardian or other person having his care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except expenses of administration, but not over the allowance in lieu of homestead.

B. The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by intestate succession, but is chargeable against any share passing by the will of the decedent unless the will provides otherwise. The death of any person entitled to family allowance terminates his right to allowances not paid. As amended Laws 1976, Ch. 92, § 5.

2 . § 38-902 A.C.A., 1939, provided:

Setting apart homestead — After the return of the inventory, the court may on its own motion, or on petition therefor shall set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead, selected, designated, and recorded, if such homestead was selected from the community property, or from the separate property, of the persons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or if the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court shall select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife, and the minor children, or if there be no surviving husband or wife, then for the use of the minor children, out of the community property, or if there be no community property, then out of the property of the decedent.