Giovani v. Rescorla

• Decision Date: 29 June 1949
• Docket Number: 5078
• Citation: 207 P.2d 1124,69 Ariz. 20
• Parties: GIOVANI et al. v. RESCORLA et al
• Court: Arizona Supreme Court

207 P.2d 1124

69 Ariz. 20

GIOVANI et al. v. RESCORLA et al

No. 5078

Supreme Court of Arizona

June 29, 1949

Appeal from Superior Court, Cochise County; Gordon Farley, Judge.

Judgment reversed with directions.

John Pintek, of Bisbee, for appellants.

David J. Marks & Wesley E. Polley, of Bisbee, for appellees.

Stanford Justice.LaPrade, C. J., and Udall, Phelps, and De Concini JJ., concur.

OPINION

Stanford Justice.

C. J. Beezley and Catherine Beezley, his wife, were the owners of the surface and 40 feet of Lot 6, Block 2 of the Townsite of Bakerville, an addition to the city of Bisbee, Cochise County, Arizona.They were the parents of appellantsDorothy Thelma Giovani, Lydia Beatrice Giovani and Ena Marie Cain, and grandparents of Merilee Giovani, the daughter of Lydia Beatrice.

Catherine Beezley passed away September 27, 1919.C. J. Beezley married Beatrice Frazier Sorsby, interpleader defendant(appellee) in April, 1921.He died February 10, 1923.Beezley left a nonintervention will giving all of his property to his wife, appellee herein.On June 16, 1927, she filed a petition for the probate of the will and was appointed executrix.Apparently nothing further was done until the filing of this suit.Beatrice Frazier Sorsby was also appointed the guardian of the estates of the three Beezley children on March 31, 1923.

Ena Marie married Howard Cain in the year 1926, and left the home, which is the property involved in this litigation.Since her marriage she has not lived on the property.On June 16, 1927, an uncle and aunt of the children adopted the two younger children, and Beatrice Frazier Sorsby joined in the adoption by giving her consent.

The facts show that on October 31, 1936, the property in question was advertised to be sold by the county treasurer on account of delinquent taxes assessed against appelleeBeatrice Frazier Sorsby for prior years.In December, 1941, a treasurer's deed was issued to William Frazier, the then husband of Beatrice Frazier Sorsby, she having married him August 7, 1933.On November 10, 1942, Beatrice Frazier Sorsby deeded the property to William Frazier.April 25, 1944, William Frazier deeded the property back to Beatrice Frazier Sorsby and this deed was recorded on May 2, 1944.

This action to quiet title based on adverse possession was filed on October 8, 1946 by the appelleesJoe Rescorla and Ada Rescorla, who evidently had a contract to buy the property.

The case was tried on the complaint, answer, and counterclaims, resulting in a judgment in favor of plaintiffs.

While the appellants have presented several assignments of error, the parties to the action have stipulated what the issues in the case will be:

1."That the Court shall determine whether or not Beatrice Frazier Sorsby had good title to the property set forth in the complaint at the time that she conveyed the property to Joe Rescorla and Ada Rescorla, his wife.

2."It is further stipulated that the Court shall pass upon the question, if any, of damages on behalf of the defendants represented by John Pintek as against Beatrice Frazier Sorsby, interpleaded defendant."

In addition to this stipulation, the issues are further defined in appellants' brief as follows: "Can one in a fiduciary or trust capacity (in this case the step-mother, guardian, executrix and co-owner) in possession of the property under court order, acquire title by or through claim of adverse possession?"

It is the claim of appellants that at the time of the death of Catherine Beezleythey were entitled to one half of the community estate, being their mother's part.They recognized the nonintervention will of their father as bestowing on Beatrice Frazierthe father's one half of the estate, but claim that as to the other one half appelleeBeatrice Frazier Sorsby was a trustee for appellants.They also claim that by reason of the guardianship proceedings filed in 1923 in which appellee was appointed guardian of the persons and estates of all minor children of Calvin James Beezley and Catherine Beezley, his wife, which guardianship has not been terminated by order of court, a fiduciary relation has at all times existed between appellee and her said wards and does now exist, and that she could not under such circumstances occupy said premises adversely to them.

The records in this case disclose that Beatrice Frazier Sorsby was appointed guardian of the persons and estates of the minor children of her husband, C. J. Beezley, in April, 1923; that she duly qualified as such and has never since said date been discharged as said guardian by order of the court.

Section 42-116, A.C.A.1939, relating to guardianship, insofar as we are concerned in this case, provides that "The power of a guardian appointed by a court is suspended only by order of the court; or, if the appointment was made solely because of the ward's minority, by his attaining majority."

The guardianship in this matter was not made solely because of the minority of said wards, but primarily for the purpose of preserving the estate of said minor children, and therefore continues to exist at this time and will continue to exist until suspended by an order of the superior court of Cochise County.This being true, the said Beatrice Frazier Sorsby at all times since her appointment as such guardian has occupied and does now occupy a fiduciary relation toward all of the children now living of her deceased husband regardless of their age, and has at all of said times held the property of said heirs as trustee for them and for the benefit of the estate of Lydia Beatrice Giovani, deceased.It therefore follows that the said Beatrice Frazier Sorsby could not initiate a claim of adverse possession against her wards during the existence of said guardianship, and that she has at no time occupied the property involved in this litigation adversely to said children, but on the contrary has at all times occupied the same as trustee for them and for their benefit.Therefore the statute of limitations has not begun to run as against the children now living of Catherine Beezley, nor against the estate of Lydia Beatrice Giovani, deceased child, or her heir, Merilee Giovani.

In addition to the guardianship relation, appellants contend that interpleader-defendantBeatrice Frazier Sorsby, appellee, was a co-owner and stepmother of the minors involved and was the executrix of the estate of their father, the probate of which necessitated the handling of their portion, and thus a trust relation existed and has continued to exist to this date between appellee and them.We heartily agree with this contention.The evidence is undisputed that the estate of C. J. Beezley, filed for probate in June, 1927, is still pending.Appellee admitted upon the witness stand that said estate was still pending, and that the records in that case show that his minor children were the owners of an undivided one-half interest therein.The testimony of appellee relating to this matter follows:

"Q (by Mr. Pintek) Now, Mrs. Sorsby, you then qualified as the executrix of the estate of Calvin James Beezley, have you not?A Well, I don't think so, Mr. Pintek.You see, there was just a will left, that is the only thing I know.

"Q Mrs. Sorsby, I am going to read to you now a portion of the record as it appears in the Superior Court.This being the transcript of the evidence in cause number 2396, In the Matter of the Estate of Calvin James Beezley deceased.I am referring to page 2 of that document, and ask you if this is your signature there, please?A Yes.

"Q Now.Mrs. Sorsby, at the time that this matter arose when you were petitioning the court to be appointed the executrix of the estate of Calvin James Beezley, deceased, who was your husband, you testified before the ocurt that the three children, who were the children of Mr. Beezley by his first wife, had a half interest...