VALLEY NAT. BANK OF PHOENIX
SIEBRAND et al
Rehearing Denied May 20, 1952.
Phil J. Munch, of Phoenix, for appellant.
Wilson & Wilson, of Phoenix, for appellees.
La Prade, Justice. Udall, C. J., and Stanford, Phelps, and De Concini, JJ., concurring.
La Prade, Justice.
[74 Ariz. 55] This appeal is prosecuted by the Valley National Bank, in its capacity as Arizona [74 Ariz. 56] Administrator of the Estate of John J. Siebrand, deceased, which, as plaintiff below, brought an action in replevin to recover possession from defendants of certain personal property (automobiles, trucks and circus equipment) in their possession and for damages for its unlawful use and detention, alleging and claiming that the property belonged to the estate of its intestate and that it was subject to administration in the Superior Court of Maricopa County. Defendants denied ownership and right of possession in plaintiff and affirmatively
alleged that they were the owners of the property and entitled to possession in that they had purchased the property under court orders from the duly appointed special administrator of the estate of the deceased appointed by the probate court of the state of Minnesota in Nobles County. Evidence at the trial fully sustained these allegations. After trial, judgment was ordered for defendants without any findings of fact or conclusions of law. From this adverse judgment and the order denying a new trial plaintiff prosecutes this appeal.
The deceased, at the time of his death July 5, 1948, was temporarily in the state of Idaho and there had with him the property herein attempted to be replevined. Letters of special administration were issued by the Minnesota court on July 22, 1948. The petition seeking letters of special administration in Minnesota alleged that deceased was a resident of Round Lake, County of Nobles, State of Minnesota, and was signed and filed by a sister of the deceased. Letters were issued, after which the special administrator petitioned for leave to sell which was granted. Sale was made to these defendants, report thereof made and confirmed by court order.
The unverified petition for letters in Arizona was signed by Phil J. Munch, as Attorney for Petitioner, one Gertrude Siebrand, and filed October 22, 1948, wherein it was alleged she was the surviving spouse. At the hearing on the petition she was sworn and testified and letters of administration were directed to issue to her. Gertrude failed to qualify, signed a resignation and nominated plaintiff which was thereafter on November 12, 1948 appointed and qualified. In this petition Gertrude alleged that deceased was a resident of Maricopa County and left estate, personal property (describing same) in the county, and that the next of kin were "Gertrude Siebrand, surviving spouse * * * and Richard John Siebrand, son aged six, residing at Round Lake, Minnesota". These letters were not sought by Gertrude on the claim that she was a creditor but rather upon the ground that she was the surviving wife.
At the trial by consent and without objection, inquiry was made into the question of the domicile of deceased at the time of his death. The evidence of plaintiff was furnished by Gertrude Siebrand who, on cross-examination, admitted that she was not married to John Siebrand but had lived [74 Ariz. 57] with him as his wife from February 1947 until his death (July, 1948). She testified that when he entered the hospital in Idaho Falls, Idaho, during his last illness he gave his address as 2307 East Van Buren, Phoenix, Arizona, and that she lived with him as his wife at that address "in the wintertime when the show was here". The circus show was quartered during the winter months on a vacant lot at the above address where the deceased and Gertrude lived in a trailer house on the premises. In addition to the testimony of Gertrude, plaintiff offered documentary evidence consisting of title certificates to the trucks and trailers upon which Mr. Siebrand's address appeared as "2307 East Van Buren Street, Phoenix, Arizona". The address shown on these title certificates and upon a conditional sales contract was a mailing address and not a declaration of legal residence or domicile.
Evidence was introduced by defendants in support of their contention that John J. Siebrand was domiciled in Minnesota. Their evidence disclosed that when deceased entered the Navy in December, 1943, he gave his residence as "Round Lake, Minnesota". A marriage certificate evidencing marriage to Dawna Speth at Las Vegas, Nevada, September 26, 1941, gave his residence as Round Lake, Minnesota. A power of attorney executed by deceased in September, 1944 gave his residence as Round Lake, Minnesota; his separation papers from the U. S. Naval Service on April 11, 1945, gave Round Lake, Minnesota as his permanent address for mailing purposes. Deceased's immediate family at the time of his death consisted of his son, mother, two brothers and two sisters, all ...