In re McDonnell's Estate, 4891

• Decision Date: 07 April 1947
• Docket Number: 4891
• Citation: 65 Ariz. 248,179 P.2d 238
• Parties: In re McDONNELL'S ESTATE. v. McDONNELL CLEVELAND et al.
• Court: Arizona Supreme Court

179 P.2d 238

65 Ariz. 248

In re McDONNELL'S ESTATE.

CLEVELAND et al. v. McDONNELL

No. 4891

Supreme Court of Arizona

April 7, 1947

Appeal from Superior Court, Yavapai County; W. E. Patterson, Judge.

Proceeding in the matter of the estate of George H. McDonnell, deceased wherein Mary Monica Cleveland and others filed a petition to determine heirship under Code 1939, § 38-1518 et seq. Mary McDonnell, joined with two groups of nieces and nephews of decedent, filed a complaint in the estate in the matter setting forth their relationship to the deceased as a basis for their claims of heirship. From that part of judgment establishing Mary McDonnell as an heir entitled to one-third of decedent's estate and canceling a quitclaim deed and assignment conveying her interest to Mary Monica Cleveland and others, Mary Monica Cleveland and others appeal.

Reversed.

Leo T Stack, of Prescott, for appellants.

Morgan & Locklear, of Prescott, for appellee.

Udall Justice. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Udall, Justice.

George H. McDonnell died on April 5, 1944, intestate and without issue. His estate consisted of a small amount of cash, a few war bonds, an automobile and an undivided one-fourth interest in certain real property in Prescott, Arizona. He had acquired this realty under the will of his deceased wife who, in turn, acquired it from her former husband Daniel Condron. And he, McDonnell, had held this property as a tenant in common with the three appellants, his stepchildren. The deceased also had owned a one-fourth interest in a fund in the Yavapai County Savings Bank derived from the rents and profits accruing from the above mentioned real estate.

Just prior to his death McDonnell was employed by the Arizona State Highway Department and was stationed in Ash Fork. When he became ill he was taken to the hospital at Jerome where his sister, Mary McDonnell (the appellee) and his stepdaughter, Monica Williams (one of the appellants) came to visit him. The latter was there present at the time of his death and by telephone she promptly notified appellee of that fact. In that telephone conversation it was agreed that the stepdaughter, Monica, should take charge of the funeral arrangements and the deceased's personal effects at Ash Fork. When the appellee came to Prescott to attend her brother's funeral she met the appellant at the Head Hotel where the latter told her that the deceased's sole estate consisted of a few hundred dollars in the bank, a few hundred dollars in war bonds and an automobile, making no mention of any real estate. At this meeting Monica asked Mary McDonnell to release these funds and the automobile in order that the funeral expenses might be paid. Appellee was there asked to sign an instrument previously prepared by Monica's attorney purportedly to effect this result. Relying upon Monica's representations as to the purpose of the instrument, appellee walked across the street with her to the office of a notary public where she signed and acknowledged the document without reading it or having it read to her, although she had every opportunity so to do.

More than one year after probate proceedings were begun, Monica and her brothers filed a petition to determine heirship under section 38-1518 et seq., A.C.A.1939. Whereupon the appellee, joining with two groups of nieces and nephews (sons and daughters of a deceased brother and sister of George H. McDonnell), filed a complaint in the estate matter setting forth their relationship to the deceased as a basis for their claims of heirship. The appellants (the three step-children) answered by setting up the quitclaim deed and assignment of Mary McDonnell's distributive share to them. Mary McDonnell by her reply admitted the execution and delivery of the document but alleged that it was procured without consideration and through fraud.

The issues thus framed were tried before the court without a jury, the heirship of all the blood relative claimants was established and the quitclaim deed and assignment was cancelled. The trial court made no written findings of fact or of law as none were requested. From that part of the judgment establishing Mary McDonnell as an heir entitled to one third of decedent's estate, and cancelling the instrument in question this appeal was taken. The sole assignment of error is that the portion of the judgment cancelling the instrument is supported neither by the law nor by the evidence.

Only the two women took the witness stand and upon several points their testimony is in sharp conflict. The facts here recited have been selected and viewed as they must be, in the light most favorable to the appellee sister as the trial court is the best judge of credibility, and, in the absence of legal error, a judgment based upon conflicting evidence should not be disturbed. Hein v. Nutt, 66 Ariz. , 184 P.2d 656, and cases cited therein.

The first ground of attack on the instrument in question is that it was executed without consideration. Admittedly no monetary consideration passed between the parties. It was either a deed of gift or it was nothing. Being a validly drawn and acknowledged deed and being duly delivered, we hold that want of consideration by itself is not enough to make it inoperative. Kline v. Kline, 14 Ariz. 369, 128 P. 805; 16 Am.Jur. 472-477; 2 Tiffany Real Property, 2d Ed., section 438. The rule in such cases is clearly stated in 16 Am.Jur at pages 472, 473 as follows: "It is fundamental that an executory contract is unenforceable unless supported by a consideration. A deed, however, is an executed contract, and as between the parties, their heirs, or those who represent their rights only, a deed which operates without aid from the statute of uses need not be based on any consideration whatsoever in order that it may be effectual to transfer title to the property."

There is no question as to the fact that a proper deed of gift is valid in Arizona. Collins v. Streitz, 9 Cir., 95 F.2d 430. And it is fundamental that immediately upon death title to real property vests in the heirs who may then convey their interests subject, of course, to the ordinary processes of administration and the rights of creditors. Home Ins. Co. of New York v. Latimer, 33 Ariz. 288, 264 P. 103; Maconchy v. Delehanty, 11 Ariz. 366, 95 P. 109, 17 L.R.A.,N.S., 173, 21 Ann.Cas. 1038; Stephens v. Comstock-Dexter Mines, 54 Ariz. 519, 97 P.2d 202.

There is nothing in the complaint to support the appellee's arguments upon the grounds of mistake as it is alleged that "Monica * * * procured the signature of Mary McDonnell * * * by and through * * * fraudulent statements and representations".

As to the claim of fraud which is the only other ground which can be relied upon for avoiding the deed, the appellant first claims that fraud is not here sufficiently plead. This is clearly not the case, as the facts of the entire transaction have been set out and in addition labelled as fraudulent, and this is sufficient and proper to satisfy the requirements of pleading as set down in sections 21-404, 21-408, 21-409, A.C.A. 1939. City of Phoenix v. Mullen, 65 Ariz. 83, 174 P.2d 422; 1 Moore's Federal Practice, section 8.07.

Fraud is generally classified under two major headings, actual and constructive. The former is distinguished by the presence of an actual intent to deceive, while the latter is characterized by a breach of duty actionable at law irrespective of moral guilt, and arising out of a fiduciary or confidential relationship. 37 C.J.S., Fraud, § 2, at pages 208-215.

It is true that a greater degree of proof of fraud is required between parties dealing at arm's length than if a confidential or fiduciary relationship exists. Waddell v White, 56 Ariz. 420, 108 P.2d 565, rehearing denied 56 Ariz. 525, 109 P.2d 843; 37 C.J.S., Fraud, § 2, page 213. But neither the fact of tenancy in common as to the ownership of real estate between the parties nor any other circumstance or situation here present supports the view that...