Murillo v. Hernandez, 5930
| Decision Date | 05 April 1955 |
| Docket Number | No. 5930,5930 |
| Citation | 79 Ariz. 1,281 P.2d 786 |
| Parties | Ygnacia F. MURILLO, Administratrix of the Estate of Serapio G. Murillo, deceased; and Ygnacia F. Murillo, a widow, Appellant, v. Sara M. HERNANDEZ, Appellee. |
| Court | Arizona Supreme Court |
Alfred C. Marquez, Ralph Estrada, Daniel J. Sammons, Tucson, and H. Earl Rogge, Clifton, for appellant.
Gibbons, Kinney & Tipton, Phoenix, and James Boyce Scott, Clifton, for appellee
Plaintiff, Sara M. Hernandez (appellee herein), brought an action against defendant-appellant Ygnacia F. Murillo, as administratrix of the estate of Serapio G. Murillo, deceased, and in her own individual capacity, seeking to establish a constructive trust in plaintiff's favor as to a one-half interest in certain realty situated in Clifton, Arizona. The parties will be referred to as they were designated in the lower court. The case was tried to the court sitting without a jury and no findings of fact were either requested or made. Judgment was entered in favor of plaintiff declaring a constructive trust to exist; setting aside a quitclaim deed given by plaintiff to her father (Serapio G. Murillo, now deceased), and ordering defendant to reconvey a one-half interest in certain lots and to make an accounting and pay over to plaintiff one half of the rents and profits accruing from said realty since the death of the decedent. Motion for a new trial was denied and this appeal followed.
There is but little, if any, conflict in the evidence and the facts may be summarized as follows:
Serapio G. Murillo and Benigna Murillo, husband and wife, had no children as issue of their marriage, and the plaintiff Sara M. (Murillo) Hernandez is their adoptive daughter. During coverture the adoptive parents acquired as community property city lots described in plaintiff's complaint. The wife Benigna Murillo died intestate April 29, 1937 and no steps were ever taken to probate her estate, but her husband continued to exercise control over this property. Thereafter, on October 17, 1937, Serapio married the defendant, Ygnacia F. Murillo, and during the coverture of this second marriage certain improvements were made and seven of the city lots described in the complaint were sold. These sales are in nowise disturbed by the judgment entered herein.
On June 21, 1945, Serapio Murillo as grantee obtained from plaintiff a quitclaim deed, conveying all of her right, title and interest in and to the lots described in the complaint. This deed recites that the grantor is the sole heir of Benigna Murillo, deceased, the consideration stated is $10 (though plaintiff testified no money was paid to her), and it is further recited that 'The interest hereby conveyed is the sole and separate property of the grantee herein'. Details as to the circumstances surrounding the giving of this deed will be set forth later. Serapio G. Murillo died intestate on August 24, 1951, and his widow was appointed as the administratrix of his estate. Upon the latter's refusal to recognize that plaintiff had any beneficial interest in the real property theretofore conveyed by her to decedent this suit was instituted with the result heretofore indicated.
Plaintiff testified in response to leading questions of counsel that her father in exercising control and management of the property belonging to him and her deceased mother was 'doing it to protect my interest', she relied upon her father a great deal and 'I trusted my father very much'. Plaintiff and her husband had lived in Richmond, California, for some two years prior to the summer of 1945, when her father and stepmother made a special trip to California to see them. We quote the following from the reporter's transcript:
'Q. Sara, going back and calling your attention to June 21 of 1945 in Richmond, California when you stated that you and your husband and father were present at your residence in Richmond, California, what was the conversation, if any, between you and your father, regarding this Quit-claim Deed which was executed June 21, 1945 and marked plaintiff's exhibit 'A'? A. He wanted to borrow money and he needed my signature to borrow quite a bit of money, and he said he was going to look after my property and interest, and when I wanted my deed back all I had to do was ask him for it and he would give it back.
'Q. Sara, at the time your father talked to you there on this day when you signed this Quit-Claim Deed, which is Exhibit 'A', regarding this statement made to you by your father, did you rely on this statement in order to sign the deed? A. I had the most confidence in my father and that is why I signed it.
'Objection by Mr. Estrada to statement.
'Court: Objection sustained.
'
'
Two other witnesses testified as to statements made to them by Serapio G. Murillo relative to execution of the deed in question. The plaintiff's husband, Julian Hernandez, was asked:
Gregorio Murillo, a nephew of decedent, testified that in June of 1945, he had a conversation with decedent, as follows:
Plaintiff related several previous business transactions with her father. She testified that after the death of her mother, the father on August 5, 1939, gave her a quitclaim deed to a tract of realty in Clifton. It was later sold and she received the proceeds amounting to some $800.
When shown a group of cancelled checks signed by her father with her named as payee and bearing her endorsement, plaintiff's explanation was that 'I was always borrowing money from him.'
In the year 1947, as an investment plaintiff and her husband and her father bought a ranch in Tempe on a fifty-fifty basis, for which she signed the agreement to buy. The next year decedent purchased the Hernandez interest therein and they deeded this property back to her father, accepting $600 in cash plus a cancellation of her then indebtedness to him amounting to approximately $1,000.
Plaintiff built a home on one of the lots now in litigation and has been living in it 'off and on' for about six years, although she has never paid any rent thereon because her 'father said she did not have to.' Her father, and since his death, his second wife have always paid all the utility bills.
The record further shows that plaintiff was of sound mind and normal intelligence. She was twenty-seven years of age when her mother died and thirty-five years of age when she executed the quitclaim deed in question. Prior to her marriage to Julian Hernandez she had been married to one Ruben Carvajal, although the date of this marriage does not appear. The record does not disclose that at any time since plaintiff first married she ever lived under the same roof with her parents or was a member of the Murillo household.
The only documentary evidence offered in support of plaintiff's testimony that her father wanted her to sign the deed so he could 'borrow money' was a realty mortgage given 26 months thereafter (on August 22, 1947) to the Valley National Bank et al. to secure an indebtedness of $7,000. Nor is there any documentary evidence showing the acquisition of other lands to support the nephew's statement the deed in question was given 'so he (Murillo) could apply for a loan because he wanted to buy some more property'.
Defendant Ygnacia F. Murillo's only relevant testimony was that subsequent to her marriage to decedent four houses, financed by mortgage loans from the bank, were built on some of the lots.
At the conclusion of the plaintiff's case, the lower court stated:
Later counsel asked the trial court to reserve its ruling as they were endeavoring to effect a compromise and more than ten months then elapsed before judgment was finally entered.
Defendant first contends that 'The court erred in admitting evidence concerning statements of the decedent (grantee) in violation of sec. 23-105, A.C.A.1939.' This statute prohibits testimony of a party in cases brought by or against an administrator concerning transactions and statements of the decedent, 'unless called to testify thereto by the opposite party or required to testify thereto by the court * * *.' Counsel recognize it has been our uniform holding that admission of such testimony rests in the sound discretion of the trial court, Stewart v. Schnepf, 62 Ariz. 440, 158 P.2d 529, but contends the court abused that discretion in the instant case by admitting testimony of plaintiff and her husband relative to decedent's promise to reconvey. From the record however it appears such an objection was not made to Sara's testimony, the objection made being that a confidential relationship had not been shown and that such statements would be hearsay. It is elementary that it is now too late for defendant to argue this question, as this court will not consider an objection that was not first made in the...
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