In re Estate of Baldwin, Civil 3845

• Citation: 71 P.2d 791,50 Ariz. 265
• Decision Date: 29 September 1937
• Docket Number: Civil 3845
• Parties: In the Matter of the Estate of WALTER H. BALDWIN, Deceased. v. MARY C. BALDWIN (Objector to Probate of Will and to Issuance of Letters of Administration With the Will Annexed), Appellee GEORGE C. BALDWIN (Petitioner for Probate of Will and for Letters of Administration With the Will Annexed), Appellant,
• Court: Supreme Court of Arizona

71 P.2d 791

50 Ariz. 265

In the Matter of the Estate of WALTER H. BALDWIN, Deceased.

GEORGE C. BALDWIN (Petitioner for Probate of Will and for Letters of Administration With the Will Annexed), Appellant, v. MARY C. BALDWIN (Objector to Probate of Will and to Issuance of Letters of Administration With the Will Annexed), Appellee

Civil No. 3845

Supreme Court of Arizona

September 29, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed and cause remanded.

Mr Walter J. Thalheimer, for Appellant.

Mr Floyd M. Stahl, for Appellee.

OPINION

McALISTER, C.J.

This is an appeal by George C. Baldwin from an order of the superior court refusing to admit to probate the last will of Walter H. Baldwin, deceased, and to issue him letters of administration with the will annexed of the estate.

The appeal is here upon an agreed statement of the case which discloses these facts:

Walter H. Baldwin died in Lake county, Illinois, in June, 1932 leaving a last will and testament dated June 15, 1925, and a codicil thereto dated July 14, 1930. The will and codicil were admitted to probate in that county and state. A duly authenticated copy of both and of the probate thereof was filed in the Superior Court of Maricopa County, Arizona, and along with it a petition by George C. Bladwin, son of the deceased, for the admission to probate in that court of the will and codicil and for the issuance to him of letters of administration with the will annexed of the estate. The petition set forth that the deceased left an estate in Maricopa county consisting of an undivided one-half interest in Lots 4 and 5 of Citrus Homes, alleged to be of the value of $23,000, and to have been acquired by the deceased and his wife, Mary C. Baldwin, during their marriage.

Mary C. Baldwin, wife of the deceased, filed objections to the petition in which she alleged that Walter H. Baldwin left no property or estate whatever in Arizona; that she was at the time of his death and for many years prior thereto had been his wife; that the only property in this state in which Walter H. Baldwin ever had any interest was Lots 4 and 5 of Citrus Homes, Maricopa County, and that his interest therein was acquired by a deed dated August 25, 1930, executed by William S. Oppenheim, a bachelor, conveying these two lots to Walter H. Baldwin and Mary C. Baldwin, his wife, "not in tenancy in common, but in joint tenancy with right of survivorship"; that by reason of this deed Walter H. Baldwin and Mary C. Baldwin, his wife, held the property through his lifetime as joint tenants with the right of survivorship; that upon the death of Walter H. Baldwin, Mary C. Baldwin became the owner of the entire title to said property, and that the estate of Walter H. Baldwin had no interest whatever therein; that, in consequence, there was no reason or occasion for administration proceedings.

The portion of the deed containing the expression quoted is in this language:

"Know All Men by These Presents: That William S. Oppenheim, a bachelor, of the City of Chicago, County of Cook, and State of Illinois for and in consideration of the sum of Ten ($10.00) Dollars, to him in hand paid by Walter H. Baldwin and Mary C. Baldwin, his wife, grantees herein, has granted, sold and conveyed, and by these presents does grant, sell and convey unto the said grantees, not in tenancy in common, but in joint tenancy with right of survivorship all that certain real property situate in the County of Maricopa, State of Arizona, described as follows...." (Italics ours.)

The court sustained the objections of Mary C. Baldwin and refused to admit the will and codicil to probate and to issue letters of administration. The petitioner has brought this order here for review.

The only question presented by the record is whether property deeded to husband and wife as joint tenants with the right of survivorship becomes, upon the death of one of the spouses, the sole property of the other, or whether it is community property, one-half of which belongs to the estate of the deceased.

The contention of appellants is that under the laws of Arizona the husband and wife have only two distinct well-defined property rights: The first, the separate property of each spouse, and the second, the community property belonging to both, and that since the statutes of the state give them those two rights only, it follows necessarily that they have no others, such, for instance, as that of holding property by joint tenancy with the right of survivorship. The correctness of this claim, as well as that of appellee, that they do have the right to hold the title to property as joint tenants, rests upon the proper construction to be placed upon the two sections of the Revised Code of 1928 dealing with the question of joint tenancy and reading as follows:

"2777. Estates in common; joint tenancies. All grants and devises of real property made to two or more persons create estates in common and not in joint tenancy, except grants or devises in trust or to executors or to husband and wife. A grant or devise to two or more persons may, however, by express words, vest the estate in the survivor upon the death of a grantee or devisee."

" 986. Right of survivorship abolished. Where two or more persons hold property jointly and one joint owner dies before severance, and the grant or devise does not expressly vest the estate in the survivor, the interest in the estate of the owner dying shall not survive to the remaining joint owners but shall descend to the heirs of the deceased joint owner as though his interest had been severed and ascertained."

The first of these two sections, it will be observed, specifically authorizes the holding of property in joint tenancy with the right of survivorship, and the second by the expression, "and the grant or devise does not expressly vest the estate in the survivor," an exception to the main statement, recognizes the right thus given. The important query, therefore, is whether, in view of the community property law of this state, these sections give husband and wife, the same as they do others, the right to hold real property as joint tenants with the right of survivorship. Appellant insists that they do not and in support of his position calls attention, first, to the language of these sections and its construction by the court in Blackman v. Blackman, 45 Ariz. 374, 43 P.2d 1011, 1016; and, second, to the fact that if they do apply to husband and wife, they are not in that respect operative, because they did not, as they appeared in the 1913 statutes, have this meaning, and any modification of them in the revision of 1928 accomplishing this result could not be given effect since the act providing for revision did not authorize a change in the meaning of the statutes then in force. Considering the last reason first, it occurs to us from a reading of paragraphs 4708 and 4709 of the Revised Statutes of 1913 (Civ. Code), which became section 2777, supra, and of paragraph 1102 of the 1913 Statutes, which became section 986, supra, that their meaning was not materially changed by the revision but merely clarified. These three paragraphs read as follows before they were revised:

"4708. All grants and devises of land made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy."

"4709. The preceding section shall not apply to mortgages, nor to devises, or grants made in trust, or made to executors, or to husband and wife."

"1102. Where two or more persons hold an estate, real, personal or mixed, jointly, and one joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owners, but shall descend to and be vested in the heirs and legal representatives of such deceased joint owner, in the same manner as if his interest had been severed and ascertained."

Paragraphs 4708 and 4709, we take it, as well as section 2777 into which they were combined, provided that land may be held in joint tenancy where the grant or devise expressly so declares, and while paragraph 1102 did not contain the expression "and the grant or devise does not expressly vest the estate in the survivor,"...