Arizona Court of Appeals Division One Holds That Money Hidden By A Decedent in the Decedent’s Home Is Mislaid Property That Belongs to the Decedent’s Estate and Not to the Subsequent Purchasers of the Home.

When Robert A. Spann passed away in 2001 his daughter, Karen Spann Grande, became the personal representative of his estate. Spann had hidden valuables in unusual places in the house and over a period of seven years Grande and her sister, Kim Spann, found gold, cash, stocks, and bonds, some of which were hidden in military-style green ammunition cans. The home was sold “as is” to Sarina Jennings and Clinton McCallum. After the sale, a contractor found four additional ammunition cans containing $500,000. Jennings and McCallum sued the contractor for possession of the money and Grande filed a petition on behalf of Spann’s estate in probate court seeking to recover the funds. The two cases were consolidated and the court granted summary judgment in favor of the estate. Jennings and McCallum appealed, claiming that the money was abandoned when the home was sold “as is” because Grande “consciously ignored” the possibility that there was more money hidden in the home.

The Court of Appeals affirmed, holding that the money was “mislaid” and was the property of the estate. The court upheld the trial court’s determination that the money was mislaid property, explaining that “property is ‘mislaid’ if the owner intentionally places it in a certain place and later forgets about it” and that “[a] finder of mislaid property . . . must turn the property over to the premises owner, ‘who has the duty to safeguard the property for the true owner.’” The court rejected Jennings and McCallum’s contention that the property was abandoned, explaining that property is abandoned when someone “voluntarily and intentionally gives up a known right.” Because “abandonment is generally not presumed, but must be proven,” Jennings and McCallum had failed to prove abandonment because it was undisputed that the estate did not know that the money was mislaid and did not intend to abandon it. The court explained that because the money was mislaid property, it belonged to Spann “when he passed away and, thus, was part of his estate even though it remained undiscovered for nearly seven years.” Even though the house was sold “as is,” because it was not sold “with the thought that there may be cash within its walls . . . , there was no mutual assent to sell the house with concealed valuables.”

Judge Portley authored the opinion; Judges Timmer and Gould concurred.