Smith v. Tang, No. 7630

• Court: Supreme Court of Arizona
• Writing for the Court: UDALL; STRUCKMEYER
• Citation: 412 P.2d 697,100 Ariz. 196
• Decision Date: 25 March 1966
• Docket Number: No. 7630
• Parties: Anna M. SMITH, Appellant, v. Thomas TANG, Administrator with Will Annexed of the Estate of Roy G. Smith, Deceased, Appellee. In the Matter of the ESTATE of Roy G. SMITH, Deceased.

Page 697

412 P.2d 697 100 Ariz. 196 Anna M. SMITH, Appellant,
v.
Thomas TANG, Administrator with Will Annexed of the Estate of Roy G. Smith, Deceased, Appellee.
In the Matter of the ESTATE of Roy G. SMITH, Deceased. No. 7630. Supreme Court of Arizona, In Banc. March 25, 1966.

[100 Ariz. 199]

Page 699

Gorodezky, Mitchell & Stuart, by Sheldon Mitchell, Phoenix, for appellant.

James H. Green, Jr., Phoenix, for appellee.

UDALL, Justice.

This is an appeal by Anna M. Smith, plaintiff herein, who filed suit against the administrator with the will annexed of her late husband's estate, defendant herein, for money claimed owing therefrom to her. Plaintiff's claims against her late husband's estate were for monies spent by her for his funeral bills, for expenses of his last illness and for damages arising out of her husband's claimed breach of an ante-nuptial agreement. A trial was had and a verdict in favor of plaintiff was returned by the jury, and from the trial court's granting of defendant's motion for a new trial, plaintiff appeals.

Prior to the trial both parties herein moved for partial summary judgment as to proceeds from the sale of joint tenancy property owned by plaintiff and her late husband which the defendant by counterclaim sought to recover. The trial court granted partial summary judgment for defendant, thereby giving defendant one half of the net proceeds of the sale of the joint tenancy property.

After the trial plaintiff petitioned the probate court for a family allowance for herself and to set over to her a probate homestead consisting of the residence of herself and her late husband. From the denial of her petition, the plaintiff appeals.

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We ordered consolidation of the appeals from the judgment and orders entered in the trial court and from the action taken by the probate court.

On February 26, 1945, in the state of Ohio, Roy G. Smith, deceased, executed his will which was admitted to probate in the Superior Court of Maricopa County. The will named Mr. Smith's children by a former marriage as beneficiaries. One of the witnesses to the will was plaintiff who was employed by Smith and subsequently was married to him. On May 18, 1949, Smith and plaintiff entered into an ante-nuptial agreement in Canton, Ohio. On June 4, 1949, the parties to the agreement were married in Ohio and subsequently moved to Arizona.

Prior to Roy G. Smith's death, he and plaintiff owned as joint tenants, with right of survivorship, residential property in Phoenix, Arizona. On January 7, 1959, Mr. Smith and plaintiff entered into an agreement to sell the house for the sum of $16,000. Both buyer and seller signed escrow instructions which were delivered to [100 Ariz. 200] an escrow agent and plaintiff and Mr. Smith delivered a warranty deed to the escrow agent in connection with the sale. The buyer made a down payment of $1750 to Mr. Smith who deposited the money in his separate bank account. On January 21, 1959, Mr. Smith died in Phoenix, and thereafter the title company, acting as escrow agent in the sale of the real property, obtained a deed from plaintiff and paid the balance of the purchase price, $13,537.37, to her.

The questions presented for review by this appeal, stated in their most concise form are: (1) Did the trial court abuse its discretion in granting a new trial where the verdict returned by the jury exceeded the amount of damages sought by the complaint? (2) Whether the purchase price from a sale of real property held in joint tenancy goes to the survivor where one joint tenant dies after an agreement of sale of the property, but prior to payment of the full purchase price? (3) May a surviving spouse waive her claim to a family allowance or a probate homestead under A.R.S. § 14--514 by an ante-nuptial agreement?

Plaintiff's amended complaint sought to recover damages against the estate upon two causes of action. The first cause of action sought to recover damages of $6,078.86 which included expenses of last illness, funeral expenses, payments made to protect the estate, loans allegedly made by plaintiff to the deceased husband, and one-half of the amount received for the sale of the joint tenancy property. By her second cause of action plaintiff sought $14,788.51 which included separate monies allegedly spent by plaintiff for her comfort and support for which she asks to be reimbursed and loans made by plaintiff to her late husband. In both causes of action plaintiff asked for a sum of $4,195.51 for loans which plaintiff claimed were made to Mr. Smith from 1957 to 1959. The jury's verdict for plaintiff on the first cause of action was for $16,000, which was $9,281.14 in excess of the damages alleged in the amended complaint. The jury returned a verdict on the second cause of action for plaintiff in the sum of $1,900. Thus, the total amount awarded plaintiff by the jury was $17,900 whereas the total amount prayed for by plaintiff was $16,671.86 if the $4,195.51 is included only once.

Immediately after the verdict was returned by the jury, counsel moved to conform the verdict to the intent of the jury by reversing the causes of action, which motion was granted by the trial court pursuant to Rule 49(c), Rules of Civil Procedure, 16 A.R.S. Thereafter, defendant sought a new trial which was granted by the trial court although the court did not indicate upon which grounds the motion was granted. One of the reasons stated in the motion for a new trial was that the [100 Ariz. 201] verdict was for an excessive amount of damages.

The general law with respect to a verdict for more than the allegation of a

Page 701

complaint demand is that the verdict is erroneous. 89 C.J.S. Trial § 506. As stated in 65 A.L.R.2d 1331:

'In the majority of cases where a verdict or judgment entered upon such verdict was deemed erroneous because exceeding amount of damages claimed or demanded in the successful party's pleadings, it has been held that a new trial may be avoided by a remittitur of the amount of the excess.'

There was no remittitur sought in the instant case and the trial court did not so order. Instead, the trial court granted defendant's motion for a new trial.

The order granting defendant's motion for new trial did not comply with Rule 59(m), Rules of Civil Procedure, 16 A.R.S., by specifying with particularity the ground or grounds upon which the new trial was granted. We recently commented on a general type of order in granting a new trial in Yoo Thun Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809, 811 (March 3, 1966) stating that in this situation 'we will presume that the verdict of the jury was correct, placing the burden upon the appellee to convince us that the trial court did not err in ordering a new trial.' We are not convinced that the verdict of the jury was incorrect even though the amount awarded plaintiff was in excess of the amount sought in her complaint.

The defendant's motion for a new trial set out several reasons why a new trial should be granted. ¹ The grounds, however, related primarily to an erroneous verdict by the jury in that it was not responsive by awarding more damages than were asked or proven and that the trial court erred in purporting to amend or modify the verdict pursuant to Rule 49(c), Rules of Civil Procedure, 16 A.R.S. Rule 49(c) states, in part: 'If the verdict is informal or defective, the court may direct it to be reformed at the bar * * *.' [100 Ariz. 202] Where a verdict is manifestly irregular or defective the trial court may put the verdict in such form as to...