Maria Z. FERNANDEZ, Administratrix of the Estate of Gerardo ZORRILLA, Deceased, Appellant and Cross-Appellee,
Emma GARZA, also known as Emma Zorrilla, Appellee and Cross-Appellant.
Rehearing Denied Sept. 26, 1960.
[88 Ariz. 216] Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, for appellant and cross-appellee.
Garland, Sanders & Martin, Las Cruces, N. M., for appellee and cross-appellant.
HERBERT F. KRUCKER, Superior Court Judge.
Emma Garza, plaintiff in the court below, brought suit against Maria Zorrilla Fernandez, administratrix of the estate of Gerardo Zorrilla, to recover certain property[88 Ariz. 217] from the defendant, predicated on an alleged agreement with the deceased Zorrilla. Judgment was entered against the defendant, fixing the plaintiff's recover in the sum of $17,476.12, and from such judgment defendant appeals. Plaintiff also cross-appeals to correct the judgment in certain particulars hereinafter stated. Both the subject-matter and the parties to the present appeal are not new, the same having been twice before the court in Garza v. Fernandez, 74 Ariz. 312, 248 P.2d 869, and Fernandez v. Garza, 83 Ariz. 318, 320 P.2d 948.
The facts material to the determination may be stated as follows: Plaintiff's husband died in 1921, leaving her a house and $3,000. In 1938, she entered into an agreement with Gerardo Zorrilla that she would take care of his property, including collecting the rents, cleaning when tenants moved and keeping the houses in repair, and that they would divide equally all rents collected and everything else. Thereafter, plaintiff moved into Zorrilla's home and shortly afterward entered into a meretricious relationship which continued until Zorrilla's death on August 14, 1949.
In 1941, when plaintiff moved in with Zorrilla, she rented her own home for $25 a month for three months; then with her own funds remodeled it into two apartments, thereafter renting them for $30 a month each. In June of 1943, she purchased a house on Sixth Street in Clifton, Arizona, for $3,251.50, using her own money. Zorrilla purchased four houses in Clifton in 1941 with his individual funds, and title was taken in his name. In December of 1941, four apartments were added to the house in which they lived. There were completed in January or February of 1942. In that same year, Zorrilla built another house at a cost of $2,900. The rental money from all these houses was placed in Zorrilla's account in a bank in Safford, Arizona.
At the time of Zorrilla's death, the accumulation of the property of the deceased and the plaintiff, under their agreement, was found by the trial court to be $34,952.25, one half of which by its judgment the court directed to be paid over to the plaintiff from the assets of the Zorrilla estate. This sum amounted to $17,476.12.
Defendant advances five assignments of error supported by three propositions of law. Proposition of Law No. 1 in essence urges that the court below lacked jurisdiction of the subject matter, and accordingly the action should have been dismissed. This proposition is bottomed on A.R.S. § 14-570, formerly § 38-1003, A.C.A. 1939, which provides that all claims arising upon contract shall be presented to the executor or administrator within the time limited in the notice and any claim not so presented shall be barred forever. It is, of course, true that if a cliam against an [88 Ariz. 218]
estate is not presented in the time and in the manner prescribed by the statute, it is barred. Latham v. McClenny, 36 Ariz. 337, 285 P. 684.
The appellee answers, however, that the subject-matter of the suit is not such a claim as is contemplated by the statute for the reason that the trial court found an agreement between plaintiff and decedent to work together to acquire property for their joint benefit and to divide all the profits made therefrom equally. Clearly, this finding establishes the essential elements of a partnership. As to partnership assets in the hands of the administrator of a deceased partner, this court has followed the theory that they are trust funds and therefore not part of the assets of an estate; they are held not as part of the estate, but in trust for the suriving partner. Franklin v. Trickey, 9 Ariz. 282, 80 P. 352; In re Baxter's Estate, 22 Ariz. 91, 194 P. 333. No presentation of a claim is necessary and the statute of non-claims has no application.
Defendant contends by her second and third propositions of law that where there is no evidence to sustain the plaintiff's case, the court should enter judgment for the defendant notwithstanding the verdict of the jury for the reason that the court may not assume facts upon which to base its judgment. It is argued that there was no evidence to support the finding of a partnership agreement. We think the evidence is sufficient to support such a finding. For example, Mrs. Rufina Mota testified:
'Q. What did Mr. Zorrilla say, in the presence of Mrs. Garza, what she was to receive? A. He told me about how good she was in managing their business but that it would be eventually her own interest because she was to receive half of what they made.
'Q. Half of what they made from what? A. From the business ...