Della S. CRAVER, Appellant,
Charles G. CRAVER, Jr., Joe Wesley Craver, individually and as Co-Executors of the Estate of Charles Grover Craver, deceased, Jeanette C. Nelson, Appellees.
[85 Ariz. 18] Minne & Sorenson, Phoenix, for appellant.
William C. Eliot, Phoenix, for appellees Charles G. Craver, Jr., and Joe Wesley Craver.
Lester J. Hayt, Phoenix, for appellee Jeanette C. Nelson.
UDALL, Chief Justice.
The sole question presented by this appeal is whether the evidence as a whole, when considered in a light most favorable to appellees, sustains the judgment of the trial court in holding that Della Craver, the surviving wife,--plaintiff-appellant--should take nothing by her complaint. We shall refer to the parties as appellant and appellees, respectively. The case was tried to the court sitting without a jury.
The controversy between the parties arose in this manner: Charles Grover Craver, now deceased (hereinafter referred
to as decedent), on September 13, 1950 sold the E 1/2 W 1/2 SE 1/4 Sec. 3, Twp. 1 N. Range 2 East, G. & S. R. B. & M., containing approximately 40 acres, to Michael A. Parker and wife on an installment agreement under which he retained title until all of the purchase price had been paid. The instructions given to the Phoenix Title and Trust Company requested that monthly payments received by said escrow agent be forwarded to seller in the names of himself and his wife, the appellant herein. This was done until his death, which occurred on July 10, 1954. In his will (executed November 24, 1953) disposing of an estate later appraised at $54,246.05, this 84 year old man provided generously for his wife and then devised and bequeathed to his three adult children by a prior marriage, appellees herein, the real property that he had sole and/or the proceeds from the contract of sale. Some months after the admission of his will to probate on August 5, 1954, appellant brought this action asking the court to determine the interest of all parties in the proceeds of the contract of sale. The balance then due on the contract was appraised at $25,527.05.
Appellant first proceeded in the trial of this case on the theory of 'joint tenancy' which has since been abandoned; then in her brief, submitted to the lower court, switched to 'an equitable assignment theory' but now contends that the proceeds of the sale are community property and that she is therefore entitled to one-half thereof irrespective of the express terms of decedent's will.
The evidence is undisputed that decedent, Charles Grover Craver, acquired the realty here in question prior to his marriage to appellant on March 25, 1929. The law is so well settled in this jurisdiction as to require no citation of authority that 'property acquires its status at the time of its [85 Ariz. 19] acquisition.' Recognition of this principle no doubt brought from appellant's counsel the following admission at the trial, viz.:
'Mr. Cavness: Oh, if the Court please, we admit it was separate property; that it was taken in his name alone; that he is the record title holder. There is no argument about that.'
On this state of the record the burden was upon appellant to establish, by clear and convincing evidence, that the proceeds of sale were community property. As the real property was decedent's sole and separate property, the transmutation from the real property to personal property by reason of a sale would not change the proceeds thereof to community property.
We quote from appellant's brief as to her contention in this matter:
'It is her position, however, that the character of the property was changed from real to personal property by virtue of the execution of an agreement of sale and that the property right in the contract became the community property of the appellant and her husband by virtue of the instructions given to the Phoenix Title & Trust Company, and by virtue of the fact that the wife was included as one of the sellers under the terms of the agreement of sale.'
It is apparent that appellant further relies upon the following additional incidents in the handling of the property which she claims conclusively established that she was legally entitled to a community interest in the balance of the unpaid contract, viz.:
(a) That she with her husband had signed the deed as prepared by the title company conveying the property to the grantees upon the fulfillment of the contract of sale.
(b) The quitclaim deed signed by the Parkers (purchasers), held in escrow in case of a default in payment by them, was ...