ALICE JOHNSON, Administratrix of the Estate of FRED E. JOHNSON, Deceased, Appellant,
MILDRED JONES, Appellee
APPEAL from an order of the Superior Court of the County of Greenlee. T. E. Allyn, Judge. Order reversed and cause remanded with instructions.
Mr. George M. Sterling, for Appellant.
Messrs. Meason & Choisser, for Appellee.
[55 Ariz. 50] LOCKWOOD, J.
Fred E. Johnson, hereinafter called deceased, intermarried with Mildred Jones, hereinafter called appellee, and of such marriage there was issue Bradford D. Johnson and Chloe Jean Johnson, who are still minors. On January 9, 1933, a decree was rendered in the superior court of Maricopa county granting an absolute divorce to appellee, and providing that deceased should pay to her the sum of twenty-five dollars monthly during the time that the children of said marriage were in her care and custody, which by the decree was set as six months out of each calendar year. There was an attempt to set aside the community realty to deceased but the description thereof was faulty. Thereafter appellee conveyed to deceased her interest in the real estate. Later deceased and Alice Johnson, appellant herein, intermarried, and some time thereafter this last marriage was dissolved by the death of Fred E. Johnson. Thereafter both appellant and appellee petitioned for letters of administration, and appellant was finally [55 Ariz. 51] appointed and qualified. The estate was duly inventoried as being of a value of less than two thousand dollars. A petition was filed by appellant asking that the entire estate be set aside to her as the surviving spouse of deceased, under the provisions of section 3977, Revised Code of 1928, as amended by chapter 22, twelfth legislature.
Appellee filed a counter petition requesting that all of the realty of the estate be set aside as a homestead for the minors named above, and alleged in substance that the real estate aforesaid had been accumulated during her marriage to deceased as community property; that when the divorce was granted no disposition was made of it in the decree, but shortly thereafter, upon the request and solicitation of the deceased and upon his promise to retain it for the maintenance and care of their minor children and at their maturity to convey the property to them as their own, she deeded her interest therein to deceased for the purpose of carrying out the trust agreed upon as above, and that it was at all times held by deceased under the express trust aforesaid. She disclaimed any interest in the personal property of the estate.
A hearing was had upon the two petitions, and the court found the facts to be as follows:
"1st: The whole of said property, both real and personal, belonging to said estate, was the separate property of Fred E. Johnson, now deceased.
"2nd: Fred E. Johnson was formerly the husband of Mildred Johnson, now Mildred Jones, the mother of the said Bradford D. Johnson and Chloe Jean Johnson, minors and heirs at law of Fred E. Johnson, deceased.
"3rd: A decree of divorce dated January 9th, 1933 was entered by the Superior Court of Maricopa County, State of Arizona granting an absolute divorce to Mildred Johnson from the said Fred E. [55 Ariz. 52] Johnson, wherein it was ordered that the said Mildred Johnson should have the custody of said minors six months out of each year, and that the said Fred E. Johnson should pay to the said Mildred Johnson the sum of twenty-five dollars monthly during the time that said children were in her care and custody.
"4th: Said decree purported to set aside the real estate now involved in this matter to Fred E. Johnson, as his separate property, but the description of said property in said decree is erroneous.
"5th: After the granting of said decree by the Superior Court of Maricopa County, Arizona, Mildred Johnson, now Mildred Jones, conveyed by deed her interest in and to the real estate to Fred E. Johnson, without consideration therefor save and except that said property was to be used to support and educate the said minors and heirs at law, heretofore named.
"6th: Mildred Jones does not make any claim to any part of said property, except on behalf of the said minors and heirs at law of ...