In re STANGER'S ESTATE. STANGER et al.
[75 Ariz. 400] Johnson & Shelley, of Mesa, for appellant.
Harold R. Scoville, of Phoenix, for appellee.
STANFORD, Chief Justice.
Amy A. Stanger and Albert Edward Stanger, residents of Montana, were married on August 2, 1949, in Billings, Montana. Shortly thereafter the parties came to Arizona to live, and on March 13, 1950 purchased 60 acres of land described as:
West 60 acres of the SW 1/4 of Section 21, T. 1 N., R. 7 E. of the G. & S. R. B. & M., Maricopa County, Arizona, excepting certain roadways.
The purchase price of the property was $22,500. $11,996.85 was paid by Albert Edward Stanger from his own personal savings which he had acquired before his marriage to Amy A. Stanger. $3,000 was paid from funds which Amy A. Stanger had acquired prior to her marriage to Albert. $3.15 was from a check drawn on the joint account of the two parties, and a mortgage in the amount of $7,500 was given to the seller of the property for the balance of the purchase price. Albert Stanger died June 14, 1950, about three months after the purchase of the property.
The property purchased had upon it six residence buildings together with a garage, water-well and tower. The main residence was a two-story one. All of the residences were furnished and all had in them refrigerators. The houses were somewhat close, the main building being 142 feet south and 146 feet west of the closest of the houses.
Apparently the houses were rented and the money received therefrom was placed in a joint account of the said parties, and expenses for the operation of the property were paid out of said joint account.
Mrs. Stanger was appointed the administratrix of the estate of her husband on June 14, 1950, and she filed a petition to set over to her the entire 60-acre tract as a probate homestead and also filed a petition for family allowance. The court found the entire tract was community property and set it over in its entirety as homestead and also granted the petition for family allowance.
Glenn Stanger, the appellant herein, being one of the surviving children of Albert Edward Stanger, on his behalf and on behalf of other surviving children, filed a motion to vacate the order setting aside the [75 Ariz. 401] homestead, which was denied, hence this appeal.
The appellant presents two assignments of error:
1. That the finding that the property was community is not justified by the evidence;
2. That the property was readily divisible and should have been divided.
As to the first assignment, it is the claim of appellant that the presumption of community property may be overcome by showing the purchase money paid for the property to have been for the most part paid by the decedent from his separate funds.
The testimony of Mrs. Stanger was to the effect that the deed was taken in both their names at the direction of Mr. Stanger 'as community property'. It was stipulated at the trial that the party who drew the deed, though not present, if called to testify would corroborate the wife's testimony on this point. Both ...