Supplemental Opinion on Rehearing July 16, 1956.
[81 Ariz. 6] W. E. Ferguson, Holbrook, for appellant.
Platt & Greer, St. Johns, for appellee.
This is an appeal from a judgment of the superior court of Navajo County in favor of plaintiff in an action for the conversion of personal property.
On October 30, 1951, Marion Leslie Hatch and Marie Hatch, husband and wife, entered into a separation agreement by which they attempted to settle their respective community property rights. A portion of the assets were given to Marie Hatch, a portion to Marion Hatch and a third parcel was to be held by both as tenants in common until sold. The portion which the parties held as tenants in common known as the 'home place' was placed in the possession of Marie Hatch until a sale could be had, at which time the proceeds of such sale were to be placed in trust for the two minor adopted sons of Marie and Marion Hatch.
The separation agreement did not mention the personal property in the 'home place' although the agreement in express terms stated that the parties thereby intended to completely settle their community property rights, which they expressed in the following language:
'In consideration of the premises, and the mutual covenants herein contained, the parties do each declare this a full, final and complete settlement of all their property rights growing out of the marriage relationship of the parties and the wife does hereby covenant that she will not make any claim for alimony in any action having for its purpose the dissolution of the marriage of the parties hereto.'
The agreement in a one-line paragraph provided that 'Each party shall have his or her personal effects.'
[81 Ariz. 7] On March 22, 1953, Marion Hatch died at Wenden and defendant was appointed executor of his estate April 21, 1953. Appellant testified that he first took possession of the property in question 'about the 16th of May, 1953.' He thereafter rented the house and furnishings for several months to one H. E. Steele. He was unable to state how many months Steele occupied the premises. He further testified that he removed certain items of personalty from the house at the time it was rented, and moved them back again just prior to the trial of this action.
Mrs. Hatch (Jones) testified that she left the 'home place' containing the furniture described in her complaint in April, 1952, (some three months after the decree of divorce was granted) and visited it only periodically thereafter. The last time she visited the 'home place' was January 29, 1953, and she did not again enter the premises until the following 'October or November'. She made a list from memory of all the items of personalty in the house on January 29, 1953, placing a value on each of the items. She testified that all of these items were intended by her husband and herself to be her property at the time of making their separation agreement and that he should have the furniture and other personal property on the real property known as the Knotty Pine Cafe in McNary including the household furnishings which he was to receive under the written property settlement. The evidence discloses also that decedent occupied the 'home place' for some time after Mrs. Hatch left it in April of 1952 and that he remained there with their adopted boys until he moved with them to Wenden where he died.
Frank Marquez testified that at one time he purchased some furniture from Marion Hatch at which time Hatch said 'Everything you bring from McNary is mine but everything inside the house is not mine; it belongs to Marie and the house belongs to the kids.' Later a discussion ensued regarding the purchase of a couch located in the house and Marquez testified that the decedent said 'This is not mine, Frank. This belongs to Marie. You can talk to Marie about it.' The sister of decedent, Irene Hays, and her husband, Wayne Hays, testified that decedent told them at their home after January, 1952, after the divorce had been granted, that the home and the furnishings belonged to the boys.
The first four assignments of error allege in substance that the court erred in entering judgment in favor of plaintiff because the character of the property was other than as found by the court as a fact, its finding having been reached through an reeoneous application of the law. Defendant insists that the property was community property which had not been disposed of by divorce decree and therefore should be treated under the provisions of section 27-805, A.C.A.1939, section 25-318, A.R.S., wherein the parties would hold as tenants in common after the date of the decree.
[81 Ariz. 8] In deciding this issue we must meet the question of whether the property was disposed of in the property settlement agreement.
Confronted with the statement in the agreement which had been incorporated in the decree of divorce of the parties entered in the superior court of Navajo County on January 23, 1952, to the effect that the parties declared the agreement to b a '* * * full, final and complete settlement of their property rights * * *,' the trial court sought to find language in the agreement carrying out that intent. Admittedly the furnishings located in the home (referred to in the agreement as the 'home place') were not mentioned anywhere in the property settlement agreement. As above pointed out, there is incorporated in the agreement a one-line paragraph providing that 'Each party shall have his or her personal effects.' The term 'personal effects' is not used in ejusdem generis with any class of personal property whatever, but stands alone as the first provision of the agreement.
The trial court construed the term 'personal effects' as used in the agreement, when coupled with the facts that all the other items of property both real and personal
were divided by the terms of the agreement and the provision therein that the wife, appellee herein, was to have custody of the children, to mean that it was intended that appellee should have apportioned to her the 'household furniture and fixtures' located in the house on the 'home place' and cited Ellege v. Henderson, 142 Ark. 421, 218 S.W. 831, 832, the facts of which it is claimed are applicable to the instant case.
We cannot agree with this view. In the Ellege case, supra, the Elleges sold Henderson a 12- or 14-room hotel under an agreement which provided in part:
'It is understood and agreed by us that all equipment and furnishings now in and around said house are to go to Henderson for the consideration of $4,000 as above stated except the own personal effects of said Elleges; in other words, the hotel is to be left fully equipped for business as it now stands. " (Emphasis supplied.)
The Elleges occupied two rooms downstairs in the hotel which were specially furnished by Mrs. Ellege and were never let to guests. The Elleges moved the furniture in these two rooms from the hotel and Henderson brought an action in replevin to recover. The trial court rendered judgment for Henderson and the Elleges appealed.
The supreme court of Arkansas based its decision in construing the term 'personal effects' as used in the contract on the rule of ejusdem generis, stating that:
'When the parties in a contract enumerate a particular class and immediately couple with that class the words 'personal effects' these words must be applied to articles ejusdem generis with those specified in the preceding part of the sentence. The parties[81 Ariz. 9] were dealing with a disposition of the equipment and furnishings of the hotel, and a fair and reasonable interpretation of the words 'except the own personal effects of said Elleges' would show that the parties referred to furnishings of the hotel which had been for the personal use of Mrs. Ellege and her family. It cannot be said as a matter of law that the parties were referring to articles usually worn on the person when as a matter of fact the sentence deals with the disposition of the furnishings of the hotel, * * *.'
It can be readily seen that ejusdem generis can have no application in the instant case.
We have shown statements, above, alleged to have been made by decedent subsequent to the divorce and nowhere therein can we find anything that would justify the conclusion that the words 'personal effects' were intended by the parties to the agreement to include the furnishings in the house on the 'home place'. The trial court expressly based its judgment on its interpretation of the contract as hereinabove pointed out without any reference whatever to the oral testimony. It is our view that the division of all the personal property in specific terms except that involved in this litigation indicates that its omission was an oversight and the oral testimony is in conflict as to what disposition the parties intended to make of it. It would have been a very simple matter to expressly provide that this property was to belong to appellee and that decedent should forthwith execute a bill of sale to her covering the same, as was done with the other personal property. If 'personal effects' as used in the contract was intended to give appellee the furnishings of the house on the 'home place' it would apply with equal efficacy to the furnishings in the living quarters at Knotty Pine Inn located in McNary which was provided to be conveyed to the husband by bill of sale.
We believe that when used without qualification or not used in context where ejusdem generis applies the term 'personal effects' almost invariably is interpreted to mean personal property having a more or less intimate relation with the person of the possessor such as wearing apparel, jewelry, or other items of property of like character. In re Lippincott's Estate,173 Pa. 368, 34 A. 58; ...