Stephen v. Stephen, Civil 2844

• Decision Date: 27 January 1930
• Docket Number: Civil 2844
• Citation: 284 P. 158,36 Ariz. 235
• Parties: MABEL GRACE STEPHEN and ARTHUR J. SMITH, as Trustee, Appellants, v. EDWARD FREER STEPHEN, GEORGE WILLIAM LYON STURROCK, MARY HENDERSON STEPHEN and RONALD WILLIAM STEPHEN, as Executors and Trustees Under the Last Will and Testament of FREDERICK SOMERVILLE STEPHEN, Deceased, Appellees
• Court: Arizona Supreme Court

284 P. 158

36 Ariz. 235

MABEL GRACE STEPHEN and ARTHUR J. SMITH, as Trustee, Appellants, v. EDWARD FREER STEPHEN, GEORGE WILLIAM LYON STURROCK, MARY HENDERSON STEPHEN and RONALD WILLIAM STEPHEN, as Executors and Trustees Under the Last Will and Testament of FREDERICK SOMERVILLE STEPHEN, Deceased, Appellees

Civil No. 2844

Supreme Court of Arizona

January 27, 1930

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Messrs Moore, Elliott & Shimmel, for Appellants.

Messrs Ellinwood & Ross, for Appellees.

OPINION

LOCKWOOD, C. J.

Edward Freer Stephen, George William Lyon Sturrock, Mary Henderson Stephen, and Ronald William Stephen, hereinafter called appellees, brought suit in the superior court of Maricopa county as executors and trustees under the last will and testament of Frederick Somerville Stephen, as trustees hereinafter called appellants, under chapter 10 Session Laws of 1927, commonly called the Declaratory Judgment Act, for the purpose of establishing whether or not certain property in the state of Arizona was at the time of the death of Frederick Somerville Stephen his separate property or community property of himself and Mabel Grace Stephen, his wife.

The facts in the case are not disputed. From them it appears that decedent and his wife at all times during the existence of the marriage relation were domiciled in and legal residents of Great Britain, and subject to the laws of Scotland. During such marriage relationship decedent visited Arizona on numerous occasions, being accompanied by his wife on two of such visits, but they were temporary sojourns only and made without the intention of remaining in Arizona permanently. As a result of such visits, decedent purchased certain property in Arizona, with funds not acquired originally in that state, and which, under the laws of the matrimonial domicile, were his separate property, his wife having no vested interest whatever therein which would under such laws descend to her heirs in the event of her death during his lifetime. Decedent died testate, and by his will appellees were appointed executors and trustees under the terms thereof. The will was first probated in Scotland, and ancillary probate was made in Maricopa county. At the time all of the parties apparently assumed the Arizona property belonged to the community, and it was transferred by appellees and Mabel Grace Stephen to Arthur J. Smith in trust, according to the terms of which trust such property was treated as community property in which the said Mabel Grace Stephen had a one-half interest. Some doubt as to the law applicable having since arisen in the minds of all the parties, this suit was brought for the purpose of determining their respective rights and duties in relation to such property.

The question involved may be stated as follows: When property is acquired during coverture which, under the law of the marital domicile and the place of its acquisition, is the separate property of one spouse, does removal of the property to a state where the community property law is in force cause such property, either in its original shape or in any into which it may have been changed, to become community property?

The matter is one of first impression in Arizona, but we are not without light for our guidance. We have held in the case of Cosper v. Valley Bank, 28 Ariz. 373, 237 P 175, after discussing and comparing the community property laws of the various states which adhere to that system, that our law is more analogous to that of the state of Washington than to that of any other. While the phraseology of the statutes of that state differs somewhat from that of ours, yet the substance in most cases, and particularly in those sections which describe what shall be community and what shall be separate property, is practically the same. The precise question which we have before us has arisen several times in Washington. In the case of Brookman v. Durkee, 46 Wash. 578, 123 Am. St. Rep. 944,...