In re Estate of Monaghan

• Decision Date: 17 May 1943
• Docket Number: Civil 4515
• Citation: 60 Ariz. 342,137 P.2d 393
• Parties: In the Matter of the Estate of Robert J. Monaghan, Deceased, v. RICHARD H. KENNERDELL, Appellee ELIZABETH G. MONAGHAN, Appellant,
• Court: Arizona Supreme Court

137 P.2d 393

60 Ariz. 342

In the Matter of the Estate of Robert J. Monaghan, Deceased,

ELIZABETH G. MONAGHAN, Appellant, v. RICHARD H. KENNERDELL, Appellee

Civil No. 4515

Supreme Court of Arizona

May 17, 1943

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.

Mr. H S. McCluskey, for Appellant.

Messrs Cornick & Carr, Mr. Wallace W. Clark, and Mr. O. M. Trask for Appellee.

OPINION

STANFORD, J.

Three appeals have come to this Court from a will contest case (post, p. 346), 137 P.2d 390) tried in the Superior Court of Maricopa County. This appeal is taken from a part of and order and judgment rendered by the court on a petition of the executor appointed in the will asking for a determination of character of property, and that part of the judgment reads as follows:

"4. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, and the Court does hereby order, ADJUDGE AND DECREE, that any further sums coming into the hands of Elizabeth G. Monaghan as a result of her services as attorney in the Intermountain Building and Loan Association, be administered upon as other community property."

Therefore, the real issue in this case is whether or not future fees that may be paid to the appellant because of the Intermountain Building and Loan Association litigation should be accounted for as community property within the meaning of Section 63-301, Arizona Code Annotated 1939, which reads as follows:

"Community property -- Power of Disposition. -- All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, or earned by the wife and her minor children, while she has lived or may live, separate and apart from her husband, shall be the community property of the husband and wife. During the coverture personal property may be disposed of by the husband only."

The appellant claims that the fee involved is a possibility only, and dependent on the happening of a contingency; that no property has yet been acquired. She also claims that the services were rendered while she lived separate and apart from the testator, who was her husband.

The will of deceased, which was dated April 18, 1940, reads, in part, as follows:

"Fourth. I give, devise and bequeath to my wife, Elizabeth G. Monaghan, from whom I have been permanently separated for four (4) years or thereabouts, the cash sum of ten ($10.00) dollars. I represent that in June, 1936, or thereabouts my said wife and I entered into a property settlement agreement which said agreement is of record in the office of the county recorder of Yavapai County, Arizona."

It is the contention of the appellee herein that the attorney's fees in question were earned prior to November, 1935, when the deceased and appellant were living together, and the fee was therefore community property, notwithstanding that the judgment on the merits of the controversy in the Intermountain Building and Loan Association action was entered January 5, 1937.

The condition precedent in the matter of the fee of this appellant, the attorney wife of the testator of the will, was that the Intermountain Building and Loan Association be declared insolvent, a fund created of its assets, and a permanent receiver appointed to administer the same, and the fund distributed to the creditors. In that respect the facts apparently further show that the trial of that cause on the merits occurred September 29, 1936; the court took the matter under advisement and the judgment and decree of the Federal Court determining the corporation to be insolvent and appointing a permanent receiver was rendered on the 5th day of January, 1937. This was at a time after the abandonment by deceased of his wife, this appellant.

"... The character of the property, as to being separate or community, becomes fixed at the time it is acquired...." Pendleton v. Brown, 25 Ariz. 604, 221 P. 213, 215.

As stated in the will there was a property settlement...