D. J. STEWART, as Administrator of the Estate of William W. Damron, Deceased, Appellant,
ELIZABETH DAMRON, a Widow, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge.
Mr. W. J. Van Spanckeren, for Appellant.
Messrs. Snell, Strouss & Wilmer, and Mr. Richard G. Johnson, for Appellee.
Morgan, J. Stanford, C. J., and LaPrade, J., concur.
[63 Ariz. 160] Plaintiff brought this action to establish her title in and require Wallace A. Macdonald, administrator of the estate of the deceased, to convey to her a lot, with improvements, situate in the city of Mesa. The grounds of the complaint were that deceased, pursuant to an oral gift agreement, held the property during his lifetime as a trustee for plaintiff. The claim was contested by the administrator. Upon the trial, with the advisory verdict of the jury on interrogatories submitted, all issues were found in favor of plaintiff and judgment entered in her behalf. Various motions by the defendant, including motion and supplemental motion for new trial [63 Ariz. 161] on the ground of newly discovered evidence, were denied by the court. From the judgment and denial of motions, defendant appealed. During the pendency of the appeal, the present administrator was substituted in lieu of the original defendant-administrator.
The facts proven and as found by the trial court and jury may be summarized as follows: Plaintiff was the mother of the deceased, who was generally known as Bill Damron. She was an elderly woman of modest means, living at Mesa. There existed a very strong bond of affection and relationship of trust and confidence between the mother and son; he was a man of considerable wealth and had taken her on numerous trips; she generally spent several months each summer with him at his home in Kentucky. In 1930 plaintiff had married Wallace A. Macdonald, the original administrator mentioned above. They did not get along and were for the most part not living together in 1937. At that time plaintiff was being supported from the proceeds of property which she had previously sold, rentals from a house and roomers, income from a trust fund established by her son Bill, and money gifts which he sent her from time to time. Bill disliked his mother's husband and appears to have had no confidence in him.
In 1937 Bill Damron came to Mesa and visited his mother. Another son, Roy, who resided in Los Angeles, came to Mesa at about the same time. The mother desired to build some rental houses. The two brothers talked over the matter with their mother and an understanding was reached whereby Bill agreed to assist his mother with funds in the purchase of a lot and for the construction of apartments. Roy was to make the plans, work on and supervise the construction. Legal title was to be taken in Bill's name and held by him for the plaintiff until her marital [63 Ariz. 162] difficulties could be settled or terminated. Pursuant to this agreement, the lot was purchased and the apartments constructed. One-ninth ($ 50) of the actual purchase price was paid by the plaintiff; she also expended $ 400 in the making of the improvements, the total expenditures being about $ 6,000. The balance of the funds used represented remittances sent to her by her son Bill, or directly to Roy, or through a brother-in-law.
The jury found that these remittances were outright gifts and were not ear-marked for construction purposes. Roy worked for seven months without compensation. The building program was carried on in his mother's name. She issued checks and paid all accounts. No account was made by her to her son. When the structures were completed, she took possession and received all income. On many occasions Bill spoke of the houses as his mother's stating that they were hers and that he was holding the title for her. The plaintiff divorced Macdonald in 1939. Following that, Bill told his mother that he would deed her the property when he came to Arizona in about two months. He did not return to Arizona, and was killed in an accident on August 1, 1941, before executing the conveyance.
The assignments of error raise questions as to the sufficiency of the evidence to justify the answers of the jury and the judgment entered. Assignment is also made that the court abused its discretion in failing to grant motion for new trial based on newly discovered evidence.
The questions raised by defendant on this appeal may be stated as follows: (1) The transaction did not constitute a valid gift; (2) the evidence is insufficient to support an estoppel against the deceased, or to bring the case within the exception of the statute of frauds, or to create a trust upon the property involved; (3) the court abused its discretion in failing to grant a new trial, in that it appeared on the [63 Ariz. 163] hearing of the motion that a letter, containing evidence not cumulative in character and which it is reasonably probable influenced the jury, ...