MAISH et al.
Reversed with directions.
Fred W. Fickett, Robert S. Tullar, Tucson, for appellants.
Carlos G. Robles, Tucson, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[71 Ariz. 427] This is a family law suit. Plaintiff below, Teresa de Valenzuela, appellee here, is the grandmother of the Maish children, appellants. Rosario Maish, daughter of the appellee and mother of appellants, was the owner of 640 acres of land in Pima County described as Section 27, T. 11 S., R. 9 E. and hereafter referred to as the ranch.
Rosario died in July 1936 about 2 years after the death of her husband. Neither of their estates have been probated. Appellants, natural children of Rosario, were minors at the time of their mother's death and were her legal heirs. There was a house, well, corrals and approximately 50 head of cattle on the ranch.
Taxes on the ranch had not been paid and were delinquent since 1931. The parties stipulated that the ranch was sold for taxes on December 7, 1939 for the years 1931 through 1938; that Antonio Valenzuela, husband of appellee, bought the tax certificate of purchase from the Pima County treasurer. Antonio died in 1941. In
1946 appellee was issued a treasurer's deed for land in question for want of redemption.
In July 8, 1946, appellee filed her complaint to quiet title to the ranch property alleging her ownership in fee simple by virtue of the issuance to her of the tax deed; that defendants claimed an estate or interest adverse to, and in conflict with, her title. The defendants, four grandsons answered, the two minor boys by a guardian ad litem, denying appellee's right to or title in the property and asserting their own claim. In addition the two older boys filed a counterclaim, in which they alleged in substance that plaintiff-appellee and her husband were charged with the duty of probating the estate of their mother, Rosario Maish; that the value of the ranch and its chattels was more than sufficient to pay all taxes, funeral expenses, expenses of last illness, debts and probate costs; that appellee deliberately failed to do so with the purpose and intent of depriving the minor heirs of their estate. They therefore prayed that appellee be decreed to hold the land as trustee for the benefit of the heirs-at-law.
Upon hearing, the court sitting without a jury found the allegations of the plaintiff's complaint to be true; and title was quieted [71 Ariz. 428] in plaintiff-appellee. From this judgment and decree appellants assign error.
The theory of the appeal is that the lower court erred in failing to decree appellee a trustee of the land in favor of appellants on the basis of either a constructive or express trust. Appellants' first contention is that an express trust was created on the basis of a purported oral agreement between appellee and Rosario Maish whereby appellee and her husband were to be allowed the use and control of the ranch in return for which they were to pay taxes and other charges and turn the ranch over to the children when they reached the age of twenty-one. The situation on this point is that Fred Maish, one of the appellants, testified to such an agreement and was corroborated by an uncle, son of appellee, Telesforo Valenzuela. However, this testimony was ...