Judgment reversed and cause remanded for new trial.
Garland & Sanders, Las Cruces, New Mexico, for appellant.
Udall & Peterson, Safford, for appellee.
Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.
[74 Ariz. 313] Emma Garza, also known as Emma Zorrilla, plaintiff below and hereinafter referred to as plaintiff, brought this action for an accounting against Maria Z. Fernandez, administratrix of the estate of Gerardo Zorrilla, deceased, hereinafter called defendant. Plaintiff now appeals from the lower court's order granting defendant's motion for summary judgment.
Plaintiff, a woman 59 years of age at the commencement of this action, is the mother of four children. Three children were the issue of her first marriage, and one, a daughter, the issue of the second. Plaintiff divorced her second husband in 1935 and in November of 1938, without any marriage ceremony, began living with Gerardo Zorrilla, as his wife. Plaintiff contends that subsequent to their mutual agreement to live together as man and wife they entered into an oral contract whereby plaintiff [74 Ariz. 314] was to manage Zorrilla's business affairs and they were to equally divide the joint accumulation. Zorrilla died intestate in 1949 and plaintiff now brings this action against the administratrix of the estate and for an accounting and a determination of her rights.
The lower court granted defendant's motion for summary judgment based on the following grounds:
"(a) The oral agreement upon which Plaintiff bases her action is barred by Section 58-101, A.C.A.1939, under Sections three and eight thereof;
"(b) Said oral agreement is illegal and void as being against public policy and against good morals; and
"(c) Plaintiff has an adequate remedy at law."
Section 58-101, supra, is Arizona's Statute of Frauds, and subdivisions three and eight thereof read as follows:
"58-101. Statute of frauds. -- No action shall be brought in any court in the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the parties to be charged therewith, or by some person by him thereunto lawfully authorized:
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"3. To charge a person upon any agreement made upon consideration of marriage, except a mutual promise to marry;
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"8. Upon an agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any ...