                                                                    FILED BY CLERK
                                                                       MAY 30 2007
                          IN THE COURT OF APPEALS                       COURT OF APPEALS
                              STATE OF ARIZONA                            DIVISION TWO
                                DIVISION TWO


In re the Estate of                         )         2 CA-CV 2006-0138
                                            )         DEPARTMENT A
ELLIOT GOLDMAN,                             )
                                            )         OPINION
                                Deceased.   )
                                            )
                                            )
                                            )


             APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                  Cause No. P26182

                          Honorable Clark Munger, Judge

                                     AFFIRMED


Duffield Young Adamson, P.C.
 By K. Alexander Hobson                                                        Tucson
                                                     Attorneys for Petitioner/Appellee
                                                     Jewish Community Foundation of
                                                                    Southern Arizona

Robert Barlow                                                              Phoenix
                                                 Attorney for Respondent/Appellant
                                                                      Jay Goldman


P E L A N D E R, Chief Judge.
¶1            In this probate action, appellant Jay Goldman, personal representative (PR)

of the Estate of Elliot Goldman, appeals from a summary judgment entered in favor of

appellee, the Jewish Community Foundation of Southern Arizona. Jay argues that, because

the estate asset value at Elliot’s death was insufficient to pay a devise to the Foundation and

“date of death values are considered in determining whether abatement occurs,” the devise

to the Foundation abated, and the trial court erred in concluding otherwise. We disagree

and, therefore, affirm the judgment.

                                      BACKGROUND

¶2            Although the pertinent facts apparently are undisputed, on appeal from a

summary judgment, “we view all facts and reasonable inferences therefrom in the light most

favorable to the party against whom judgment was entered.” Bothell v. Two Point Acres,

Inc., 192 Ariz. 313, ¶ 2, 965 P.2d 47, 49 (App. 1998). Elliot Goldman died in December

1995, and his brother, Jay Goldman, was appointed PR of the estate. In its first article,

Elliot’s will provided that “all expenses of [his] last illness and funeral, costs of

administration . . . and estate and inheritance taxes” were to be paid “from the residue of

[his] estate.” Article four of the will created trusts for each of Elliot’s two children with the

value of each trust “not [to] exceed $900,000,” including any life insurance proceeds. In

that same article, as amended by a subsequent codicil, Elliot also made several “specific

bequests,” including $250,000 and the marital residence to his wife; $25,000 to his cousin;

$20,000 to his business manager; and $300,000 to Jay.


                                               2
¶3            In the will’s fifth article, Elliot made devises to several charitable

organizations, to be made “[a]fter payment of expenses, costs and other items under [the first

article] and the distribution provided in [the fourth] Article.” Those devises provided

$10,000 to the Community Food Bank of Tucson; $25,000 to Jewish Family Service of

Tucson; $15,000 to the Congregation Chofetz Chayim; and $50,000 to the Foundation.

That article further provided: “[I]n the event there are insufficient assets to pay the [fifth

article] specific bequests, then the assets on hand shall be first used to pay [Elliot’s wife] .

. . to the extent possible, and any remaining assets shall be used to pay the [remaining]

specific bequests . . . on a pro rata basis.” Any residue of the estate was to go to the

children’s trusts.

¶4            Jay valued the estate’s assets as of the date of Elliot’s death at $2,732,733,

consisting of $2,676,690 originally reported in the estate’s “Beginning Inventory” plus

another $56,043 Jay subsequently discovered. Jay averred that the children’s trusts received

$521,147 in insurance proceeds and that the fourth article bequests ultimately totaled

$2,023,853. Jay also averred that the first article payments—including estate debt, funeral

and administration expenses, and estate taxes—totaled $1,535,642. Thus, the first and

fourth article payments, which the will directed to be made before the fifth article devises,

exhausted the estate’s assets as originally valued.

¶5            In 2003, the estate’s real property was appraised again, and an increase in its

value resulted in an estate balance of $1,844,650.64 in November 2004. From Elliot’s death


                                               3
to November 2004, Jay made payments to all of the fifth article devisees other than the

Foundation, presumably at least in part from this increase. Jewish Family Service received

$25,000; the Congregation Chofetz Chayim received $16,000 ($1,000 more than Elliot

devised to it); and the Community Food Bank received $10,000. Jay also made payments

to himself and to Elliot’s wife that exceeded the amounts left to them in the will’s fourth

article. But he did not pay the Foundation’s devise.

¶6            Jay averred he initially did not pay that devise “due to [his] concerns about the

ability of the Foundation to accomplish the goals [Elliot had] intended.” The $50,000 Elliot

had left to the Foundation was, in Jay’s opinion, “not sufficient to permanently endow an

annual trip to Israel” as Elliot had intended. Therefore, after offering to combine the devise

with a gift from his parents to establish a fund that would be shared with another office of

the Foundation, Jay finally offered to pay the Foundation $25,000. The Foundation rejected

those offers and asked for an accounting of the estate. Shortly thereafter, in August 2004,

the Foundation petitioned the probate court for an order to show cause seeking payment of

the $50,000 devise to it.

¶7            The court ordered Jay “to show cause . . . why the devise of $50,000 due to

[the Foundation], together with interest,” should not be paid and to produce an accounting,

which Jay provided in January 2005. After hearing oral argument on the parties’ cross-

motions for summary judgment, the probate court concluded the devise to the Foundation

had not abated and granted summary judgment in favor of the Foundation. In so ruling, the


                                              4
court stated “Arizona law governing abatement of devises under a will is applied to the value

of the estate at the time of distributions, not to the value of the estate as determined at date

of death or as reported on a Federal estate tax return.” Accordingly, the court ordered Jay

to pay the Foundation $50,000 “with interest at the legal rate of 10% from January 22, 1997

until paid in full.” This appeal followed.

                                       DISCUSSION

¶8            Jay contends “[d]ate of death values are considered in determining whether

abatement occurs.” Because the first and fourth article bequests exhausted the estate asset

value at the time of Elliot’s death, Jay argues, the fifth article devises abated. According to

Jay, “[a]ny post death appreciation would benefit the creditors and the unabated

beneficiaries,” and “[t]here is no legal basis for claiming an abated beneficiary interest is

somehow resurrected because probate assets later appreciate in value.” Thus, he maintains,

“the trial court erred in concluding as a matter of law that date of distribution and not date

of death values are considered in determining whether abatement applies.”

¶9            “On appeal from a summary judgment, we must determine de novo whether

there are any genuine issues of material fact and whether the trial court erred in applying the

law.” Bothell, 192 Ariz. 313, ¶ 8, 965 P.2d at 50. We also review de novo “issues involving

statutory interpretation.” Id.

¶10           “‘Abatement’ is the reduction of testamentary legacies because estate assets

are insufficient to pay debts and other legacies.” In re Estate of Mason, 190 Ariz. 312, 314


                                               5
n.3, 947 P.2d 886, 888 n.3 (App. 1997), citing Thomas E. Atkinson, Law of Wills § 136

(2d ed. 1953). Under A.R.S. § 14-3902(A), “shares of distributees abate . . . in the

following order:” (1) “Property not disposed of by the will,” (2) “Residuary devises,” (3)

“General devises,” (4) “Specific devises.” With the exception of the residence willed to

Elliot’s wife, the devises at issue here are all general devises. See Atkinson, supra, § 132

(“A ‘general legacy’ is one which is payable out of general assets of the estate and which

does not require the delivery of any specific thing.”). The statute further provides that

“[a]batement within each classification is in proportion to the amounts of property each of

the beneficiaries would have received if full distribution of the property had been made in

accordance with the terms of the will.” § 14-3902(A).

¶11            Elliot’s will, however, provided that the first article expenses and fourth

article devises should be paid before the fifth article devises. And § 14-3902(B) provides

that, “if the testamentary plan . . . would be defeated by the order of abatement stated in

subsection A, the shares of the distributees abate as may be found necessary to give effect

to the intention of the testator.” Thus, under Elliot’s will, the fifth article devises would

abate before those in the fourth article. But, contrary to the method Jay followed by

ultimately withholding payment from only one devisee, each fifth article devise would abate

in proportion to the amount allocated to it in the will. See § 14-3902(A). Likewise, the

residuary devises to the children’s trusts would also abate, even before the general devises

set forth in the fifth article. See id.


                                             6
¶12           As noted above, although payment of the first and fourth article devises

exhausted the value of the estate’s assets at Elliot’s death, that value subsequently increased

before the estate was closed. As a result, the estate ultimately was sufficient to cover all of

the other fifth article devises and to maintain a remaining balance, apparently totaling more

than $1,800,000 as of November 2004. Therefore, we must determine whether an estate

should be valued for abatement purposes at a fixed amount at the time of the testator’s

death, or rather, as the Foundation argues, “abatement occurs or does not occur based on

the value of the assets as finally distributed from the estate.”1

¶13           As Jay points out, this appears to be an issue of first impression in Arizona and

possibly the nation as a whole. The parties have not cited, nor have we found, any Arizona

case law or statutes directly on point. Nor does the Uniform Probate Code, on which

Arizona’s probate statutes are based, see 6 A.R.S. p. 13, address the issue raised here.

Several Arizona statutes, however, are instructive.


       1
        If an estate should be valued for abatement purposes at the time of the testator’s
death, as Jay urges, we agree with him that his payments to the other fifth article devisees,
and even the overpayment to himself, would not necessarily affect the abatement of the
Foundation’s devise. Indeed, Jay acknowledges that if his argument is correct, “Article Fifth
bequests abate in their entirety,” abatement “applies to all Article Fifth beneficiaries,” and
Arizona law “permits the Personal Representative to recover those previous improper
distributions to abated [Article Fifth] beneficiaries.” See A.R.S. § 14-3909 (“Unless the
distribution or payment no longer can be questioned because of adjudication, estoppel or
limitation, a distributee of property or money improperly distributed or paid, or a claimant
who was improperly paid, is liable to return the property improperly received and its income
since distribution if he has the property . . . [and otherwise] is liable to return the value as
of the date of disposition of the property improperly received and its income and gain
received by him.”).

                                               7
¶14           First, A.R.S. § 14-1201(16) defines the term “estate” to “include[] the

property of the decedent, trust or other person whose affairs are subject to this title as

originally constituted and as it exists from time to time during administration.” (Emphasis

added.) Thus, a decedent’s estate is not fixed at the time of his or her death, but rather,

includes property existing at that time and throughout the administration of the estate. The

legislature’s use of the term “property” in statutorily defining an “estate” does not exclude

income or property appreciation and, in fact, implies that such increases should be included

in the estate “as it exists from time to time during administration.” Id.

¶15           Additionally, A.R.S. § 14-3708 requires a PR, under some circumstances, to

supplement the initial inventory filed pursuant to A.R.S. § 14-3706:

                     If any property not included in the original inventory
              comes to the knowledge of a personal representative or if the
              personal representative learns that the value or description
              indicated in the original inventory for any item is erroneous
              or misleading, he shall make a supplementary inventory or
              appraisement showing the market value as of the date of the
              decedent’s death of the new item or the revised market value
              or descriptions, and the appraisers or other data relied upon, if
              any, and file it with the court if the original inventory was filed,
              or furnish copies thereof or information thereof to persons
              interested in the new information.

§ 14-3708 (emphasis added). In closing an estate after unsupervised probate proceedings,

a PR also must verify that “the assets of the estate have been distributed to the persons

entitled” and must “furnish[] a full account in writing of the [PR]’s administration to the

distributees whose interests are affected thereby.” A.R.S. § 14-3933(A)(2), (3). Although


                                               8
the parties agree a PR is not statutorily obligated to file a supplementary inventory or interim

accounting whenever the value of estate assets changes, the requirements in §§ 14-3708 and

14-3933 are at least consistent with the view that the value of estate assets at the time of the

testator’s death is not the only value that matters for distribution and accounting purposes.

¶16           We also note that the abatement statute, § 14-3902, is found in a statutory

article entitled “Special Provisions Relating to Distribution.” Likewise, the title of § 14-

3902 includes the term “distribution” and the statute itself refers to “shares of distributees,”

suggesting that abatement is tied more closely to the distribution of an estate than to the

initial inventory required by A.R.S. § 14-3706. Cf. United States Parking Sys. v. City of

Phoenix, 160 Ariz. 210, 211-12, 772 P.2d 33, 34-35 (App. 1989) (“[W]e can nevertheless

refer to titles and captions for indications of legislative intent.”). Similarly, when a

distribution is to be made in kind, the asset to be distributed is to be valued at or near the

time of distribution, not the time of the testator’s death. A.R.S. § 14-3906(A)(2)(b), (A)(3).2

In sum, although no statute specifically addresses this issue, the Arizona statutory scheme



       2
        As Jay correctly points out, A.R.S. § 14-3906 addresses distributions in kind, which
are not at issue in this case. We disagree with him, however, that the section is therefore
“not relevant to the issue presented” here. The means by which a personal representative
is to value property for one type of distribution is relevant, at least by analogy, to the
question of how a representative should value property for other types of distribution and
for purposes of abatement. Cf. Robson Ranch Mountains, L.L.C. v. Pinal County, 203
Ariz. 120, ¶ 13, 51 P.3d 342, 347 (App. 2002) (“We . . . seek to harmonize related statutory
provisions and ‘aim to achieve consistency among them’ in the context of the overall
statutory scheme.”), quoting Bills v. Ariz. Prop. & Cas. Ins. Guar. Fund, 194 Ariz. 488,
¶ 18, 984 P.2d 574, 580 (App. 1999).

                                               9
relating to distributions from an estate suggests that the value of assets at the time of

distribution is relevant and that the value at the time of the testator’s death is not controlling.

¶17            Further, we are not persuaded by the cases, both Arizona and out-of-state, on

which Jay relies. Those cases merely stand for the propositions that a devisee’s interest in

the estate vests at the testator’s death, Betts v. Renfro, 148 So. 406, 409 (Ala. 1933), and

that the purpose of an inventory is to create a record of the assets of the estate, Lowry v.

Crandall, 52 Ariz. 501, 503, 83 P.2d 1003, 1004 (1938). It is undisputed here that the

Foundation has a vested interest in the estate; the only issue is whether the devise in which

it has an interest has abated. And, as noted above, Arizona law requires that an inventory

be updated throughout the administration of the estate whenever valuations set forth in the

original inventory are deemed “erroneous or misleading.” § 14-3708.

¶18            Raising various policy concerns, Jay also argues that, “[i]n order to facilitate

the orderly administration of the estate,” to lend certainty and predictability to the PR’s role,

and to eliminate “the unavoidable conflicts that will certainly emerge between abated and

unabated beneficiaries where abatement decisions are made at the time future distributions

are made,” “the law should require that date of death values be used to determine

abatement.” And, Jay further contends, “[u]se of a date certain [to value the estate for

abatement purposes] eliminates the need to speculate about future values.”

¶19            Elaborating on these points at oral argument in this court, Jay urged us to

adopt a bright-line, date-of-death valuation rule for abatement because such a rule could be


                                                10
easily applied and would avoid the conflicting fiduciary duties he asserts a PR otherwise

would face. A PR owes a fiduciary duty to all beneficiaries to keep them reasonably

informed of the estate and its administration and to deal with estate assets in a manner in

which a prudent person would deal with the property of another. See A.R.S. §§ 14-

3703(A); 14-7302; 14-7303; see also In re Warren’s Estate, 74 Ariz. 319, 322, 248 P.2d

873, 875 (1952) (PR “owes a distinct and binding duty to the devisees and creditors alike

to properly account to them through the court concerning the management of the estate”),

modified on rehearing, 74 Ariz. 385, 249 P.2d 948 (1952); In re Estate of Pedelty, 61

Ariz. 425, 434, 150 P.2d 362, 366 (1944) (PR “should handle [estate] with the same

business acumen that he would handle a similar business matter of his own”). In addition,

a PR is obligated “to settle and distribute the estate . . . as expeditiously and efficiently as

is consistent with the best interests of the estate.” § 14-3703(A).

¶20           According to Jay, those duties would clash if a date-of-distribution rule for

abatement purposes were adopted. Such a rule, Jay argues, would create a conflict between

a PR’s duty to unabated beneficiaries, whose interests would often be best served by a

prompt disposition of the estate assets, and potentially abated beneficiaries, whose devises

might not abate if disposition of the estate were delayed in hopes that, over time, the estate’s

value would increase sufficiently to cover their interests.

¶21           We are not persuaded by these arguments. First, it is not clear that a date-of-

death valuation rule would be more easily applied, or more likely to avoid the conundrum


                                              11
Jay postulates, than would a rule by which abatement is determined based on the value of

estate assets at the time of distribution. If assets were to be valued for abatement purposes

as of the testator’s date of death but, as in this case, the estate assets appreciate in value

during administration of the estate, the question of what to do with the excess value would

remain. The PR could not simply allocate that excess to the unabated beneficiaries absent

legal authority or a will provision to that effect. Nor could the PR disregard the order of

abatement prescribed in § 14-3902(A), unless the will expressly provided a different order

of abatement or the statutory scheme would defeat “the testamentary plan or the express or

implied purpose of the devise.” § 14-3902(B).

¶22            Thus, even if a date-of-death valuation applied, when estate assets appreciate

in value during administration of the estate and all unabated devises have been satisfied,

abated bequests quite likely would have to somehow be “unabated” in order to follow the

testator’s intent. In other words, even under the date-of-death valuation rule Jay advocates,

a PR easily could face essentially the same dilemma a date-of-distribution valuation rule

might pose.

¶23            In addition, the PR fiduciary conflicts Jay postulates are not only speculative

but also manageable. The law does not prohibit PRs from making partial distribution of

estate assets to specific beneficiaries in accordance with will provisions. Indeed, the record

reflects that during the nine years after Elliot’s death, Jay made periodic, partial distributions

of estate assets at various times and to various devisees under the will. Thus, as Jay’s own


                                               12
actions illustrate, a PR’s alleged dilemma concerning distributions to unabated beneficiaries

could be largely illusory.

¶24             In addition, if a PR intends and is ready to distribute estate assets expeditiously

but, by doing so, might cause certain devises to abate, the PR is not without recourse.

Rather, a PR faced with such a situation could “petition for an order of complete settlement

of the estate” and request the probate court to “consider the final account” and approve the

PR’s “accounting and distribution.” A.R.S. § 14-3931(A). The probate court, in turn, may

“determin[e] the persons entitled to distribution of the estate,” approve “settlement and . .

. distribution of the estate and discharg[e] the [PR] from further claim or demand of any

interested person.” Id.; see also In re Estate of Thurston, 199 Ariz. 215, ¶ 19, 16 P.3d 776,

780 (App. 2000) (absent fraudulent concealment or misrepresentation in presenting

accounting or obtaining court approval, “the [probate] court’s approval of an estate

administrator’s accounting bars an attempt to reopen consideration of items presented in the

accounting”).

¶25             In sum, Jay’s policy arguments do not clearly militate in favor of adopting a

date-of-death valuation rule for abatement purposes. Rather, in our view, a rule requiring

date-of-distribution values to be used in determining abatement will encourage PRs “to settle

and distribute the estate . . . as expeditiously and efficiently as is consistent with the best

interests of the estate,” A.R.S. § 14-3703(A), rather than delaying the distribution in a




                                                13
manner that might result in an appreciated value of estate assets with no clear recipient

beneficiaries.3

¶26           Jay also maintains that Elliot’s “[w]ill creates testamentary trusts for [the

children] and provides that the trusts may be funded with cash or property.” And, he posits,

“[t]he transfer [of assets] into a testamentary trust occurs automatically upon death of the

testator.” According to Jay, he “is not attempting to preserve . . . residuary devises” because

the “post-death appreciation [of the estate] benefits the . . . children[’s] trusts on account

of their status as Article Fourth beneficiaries—not because they were named as residuary

beneficiaries.” Therefore, he suggests the abatement of the fifth article devises does not

benefit the residuary estate, but rather, benefits the devises to the children’s trusts as an

increase in value of trust assets.

¶27           In his arguments below, however, Jay consistently took the position that “[a]ny

money recovered from the prior distributions [to the other fifth article devisees] would


       3
        This view is consistent with the few decided cases we have found that, though
distinguishable, tangentially address this point. In In re Estate of Zalaznick, 389 N.Y.S.2d
736, 738 (N.Y. Sur. Ct. 1976), the New York court found: “Neither the applicable statutory
or case law sanctions a result under which a distribution for residuary beneficiaries can
increase at the expense of abating general or specific bequests.” Although New York, unlike
Arizona, is not a Uniform Probate Code state, we find the Zalaznick court’s reasoning
instructive. Cf. Bunker’s Glass Co. v. Pilkington PLC, 202 Ariz. 481, ¶ 40, 47 P.3d 1119,
1129 (App. 2002) (although not binding, “the laws of other jurisdictions [are] sometimes
instructive”); see also In re Will of Maglin, 379 N.Y.S.2d 213, 215 (N.Y. Sur. Ct. 1975)
(“In the absence of any expressed directions to the contrary, assets are to be valued as of the
date of distribution.”).



                                              14
ultimately go to the remainder beneficiaries.”4          Because Jay did not raise his new

testamentary trust argument below, he has waived it. See Trantor v. Fredrikson, 179 Ariz.

299, 300, 878 P.2d 657, 658 (1994) (“Because a trial court and opposing counsel should

be afforded the opportunity to correct any asserted defects before error may be raised on

appeal, . . . errors not raised in the trial court cannot be raised on appeal.” ).5

¶28            Finally, we note that a fundamental purpose of the law of decedents’ estates

is “[t]o discover and make effective the intent of a decedent in distribution of his property.”

A.R.S. § 14-1102(B)(2). As noted earlier, Elliot clearly expressed an intent in his will to

prioritize the fourth article beneficiaries over the charitable beneficiaries covered in the fifth

article. By doing so, he implicitly provided that the fifth article devises would abate before

those set forth in the fourth article. But Elliot did not express any intent that a date-of-death

valuation of his estate should control for abatement purposes. And he expressly included

bequests to various charitable organizations, including the Foundation, in his will. In short,

nothing in the will suggests that Elliott intended the charitable bequests to abate under the




       4
       As noted earlier, n.1, supra, Jay maintained below and on appeal that the payments
he made to the other fifth article devisees could be recovered under A.R.S. § 14-3909 if
those devises were found to have abated.
       5
        As noted in ¶ 2, supra, Elliot’s will expressly stated his “intention that the value of
each [child’s] trust not exceed $900,000.00.” Although the will directed that “cash or assets
having [that] value” be placed in each child’s trust, the will did not provide that any
appreciated value of other estate assets accrue to the trusts. Nor does the record reflect that
the appreciation in value of the estate’s assets during administration of the estate arose from
assets that were used to fund the trusts or that were in any way related to them.

                                               15
circumstances presented here, in which the value of estate assets dramatically appreciated

during the prolonged administration of his estate.

                                     DISPOSITION

¶29           The judgment of the trial court is affirmed.



                                              ____________________________________
                                              JOHN PELANDER, Chief Judge

CONCURRING:



____________________________________
JOSEPH W. HOWARD, Presiding Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




                                            16
