Ygnacia F. MURILLO, Administratrix of the Estate of Serapio G. Murillo, deceased; and Ygnacia F. Murillo, a widow, Appellant,
Sara M. HERNANDEZ, Appellee.
[79 Ariz. 3] Alfred C. Marquez, Ralph Estrada, Daniel J. Sammons, Tucson, and H. Earl Rogge, Clifton, for appellant.
Gibbons, Kinney & Tipton, Phoenix, and James Boyce Scott, Clifton, for appellee
Plaintiff, Sara M. Hernandez (appellee herein), brought an action against defendant-appellant Ygnacia F. Murillo, as administratrix of the estate of Serapio G. Murillo, deceased, and in her own individual capacity, seeking to establish a constructive trust in plaintiff's favor as to a one-half interest in certain realty situated in Clifton, Arizona. The parties will be referred to as they were designated in the lower court. The case was tried to the court sitting without a jury and no findings of fact were either requested or made. Judgment was entered in favor of plaintiff declaring a constructive trust to exist; setting aside a quitclaim deed given by plaintiff to her father (Serapio G. Murillo, now deceased), and ordering defendant to reconvey a one-half interest in certain lots and to make an accounting and pay over to plaintiff one half of the rents and profits accruing from said realty since the death of the decedent. Motion for a new trial was denied and this appeal followed.
There is but little, if any, conflict in the evidence and the facts may be summarized as follows:
Serapio G. Murillo and Benigna Murillo, husband and wife, had no children as issue of their marriage, and the plaintiff Sara M. (Murillo) Hernandez is their adoptive daughter. During coverture the adoptive parents acquired as community property city lots described in plaintiff's complaint. The wife Benigna Murillo died intestate April 29, 1937 and no steps were ever taken to probate her estate, but her husband continued to exercise control over this property. Thereafter, on October 17, 1937, Serapio married the defendant, Ygnacia F. Murillo, and during the coverture of this second marriage certain improvements were made and seven of the city lots described in the complaint were sold. These sales are in nowise disturbed by the judgment entered herein.
On June 21, 1945, Serapio Murillo as grantee obtained from plaintiff a quitclaim deed, conveying all of her right, title and interest in and to the lots described in the complaint. This deed recites that the grantor is the sole heir of Benigna Murillo, deceased, the consideration stated is $10 (though plaintiff testified no money was paid to her), and it is further recited that 'The interest hereby conveyed is the sole and separate property of the grantee herein'. Details as to the circumstances surrounding the giving of this deed will be set forth later. Serapio G. Murillo died intestate on August 24, 1951, and his widow was appointed as the administratrix of his estate. Upon the latter's refusal to recognize that plaintiff had any beneficial interest in the real property theretofore conveyed by her to decedent this suit was instituted with the result heretofore indicated.
[79 Ariz. 4] Plaintiff testified in response to leading questions of counsel that her father in exercising control and management of the property belonging to him and her deceased mother was 'doing it to protect my interest', she relied upon her father a great deal and 'I trusted my father very much'. Plaintiff and her husband had lived in Richmond, California, for some two years prior to the summer of 1945, when her father and stepmother made a special trip to California to see them. We quote the following from the reporter's transcript:
'Q. Sara, going back and calling your attention to June 21 of 1945 in
Richmond, California when you stated that you and your husband and father were present at your residence in Richmond, California, what was the conversation, if any, between you and your father, regarding this Quit-claim Deed which was executed June 21, 1945 and marked plaintiff's exhibit 'A'? A. He wanted to borrow money and he needed my signature to borrow quite a bit of money, and he said he was going to look after my property and interest, and when I wanted my deed back all I had to do was ask him for it and he would give it back.
'Q. Sara, at the time your father talked to you there on this day when you signed this Quit-Claim Deed, which is Exhibit 'A', regarding this statement made to you by your father, did you rely on this statement in order to sign the deed? A. I had the most confidence in my father and that is why I signed it.
'Objection by Mr. Estrada to statement.
'Court: Objection sustained.
'Q. Sara, at any time after you signed this Quit-Claim Deed did your father reconvey any of this property which you Quit-claimed to him in 1945? A. No sir.
'Q. Did you ever ask your father to reconvey to you? A. No, sir.
'Q. Sara, at any time did you receive any income from this property which had been owned by Serapio and Benigna Murillo? A. No, sir.
'Q. Did you ever ask him for any of the money? A. Never.'
Two other witnesses testified as to statements made to them by Serapio G. Murillo relative to execution of the deed in question. The ...