ROY GADDY SHACKELFORD, a Minor, by E. T. Cusick, as His Guardian Ad Litem, Appellant,
EMMA L. SWANTEK, as Administratrix With Will Annexed of the Estate of Nell Trotter, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge.
Messrs. Cusick & Lyons, for Appellant.
Messrs. Kimble & McLean, for Appellee.
McAlister, C. J. Ross and Stanford, JJ., concur.
McAlister, C. J.
[62 Ariz. 87] This is an appeal by the plaintiff who unsuccessfully attempted to impress a constructive trust in his favor upon the funds held by the defendant in her capacity as administratrix of the estate of decedent, Nell Trotter. We refer to the parties as they were designated in the trial court, plaintiff and defendant.
The decedent, Nell Trotter, was a resident of Pima County, Arizona, and she died about the 12th of August 1941, and left a will, dated May 5, 1941, in which J. W. Trotter, her nephew, of Los Angeles, was named executor, but he did not qualify because he lived in another state. On October 29, 1941, Emma L. Swantek was duly appointed administratrix, and has been since then the acting administratrix of said estate. After the assets of the estate had been liquidated, the plaintiff, as guardian ad litem, filed a complaint to have the defendant declared a trustee of the funds remaining in her representative capacity upon the theory that they were the minor's money.
Nell Trotter was the maternal grandmother of the real party in interest, Roy Gaddy Shackelford, a boy about 16 years of age, who formerly lived at Green Bay, Wisconsin. The mother of the boy died in April, [62 Ariz. 88] 1929, when he was less than two years of age and thereafter Nell Trotter, the minor and the father, Roy G. Shackelford, lived together at Green Bay, Wisconsin.
When the mother of the minor died she left him an inheritance of approximately $ 2,500 which "was placed with the New York Life Insurance Company for his benefit." It was deposited with that company in the name of Nell Trotter and Roy G. Shackelford, the maternal grandmother and the father, respectively, of the child and it remained there about 8 1/2 years, or until September 1937, when it was withdrawn from the insurance company by Nell Trotter and the father. That company issued its check for $ 2,522.36, payable to Nell Trotter and Roy G. Shackelford and on October 4, 1937, this check was indorsed by both payees and cashed by Nell Trotter at the People's Trust & Savings Bank of Green Bay, Wisconsin, and the proceeds distributed as follows: $ 833.04 was deposited in that
bank to the credit of Nell Trotter alone, and $ 1,689.32 was taken in cash by her; on June 6, 1938, Nell Trotter withdrew in cash $ 100 and on June 16, 1938, she withdrew the remaining $ 737.20 also in cash, thus closing the account.
Thereafter Nell Trotter and her grandson Roy went to Sierra Madre, California, where they remained for several months. The latter part of 1938, or early in 1939, she went to Tucson, Arizona, for a few days, and while there she purchased Lot 5 in Block 18, Amended Government Heights Subdivision No. 2, in her own name. Upon this property she built a small house which she and the boy occupied and upon the rear of the same lot she built, a little later, another house, which she rented for $ 20 a month for about two years. W. A. Shackelford, Roy's paternal grandfather, a builder by trade, lived in [62 Ariz. 89] Tucson, and he did most of the work on the first house, making no charge for his services. Others helped in building these houses, but they were paid for their work. Under date of April 9, 1939, Nell Trotter wrote Roy G. Shackelford from Tucson, Arizona, saying: "We got here the 11th of March. We have a little 12 X 20 house. Your Dad built the house for us and he did not charge us anything for the work." During the time they lived in the west Roy G. Shackelford, father of the boy, sent them about $ 500 to pay living expenses.
Throughout the trial the plaintiff contended that the residue of the estate was the minor's property, because, according to the testimony of Roy G. Shackelford, father of the child, with whom she lived for eight years before leaving for the west, the decedent "had no money other than that of my son's." She often declared that "she would keep Gaddy's money for him and take care of it for him, and all that is left is ...