Graham v. Maxwell , 73 Ariz. 179 ( 1951 )

DE CONCINI, Justice.

This is an appeal from an order of the trial court refusing to set aside, under the provisions of section 38-902, A.C.A.1939, a probate homestead to Sadie R. Graham, widow of Charles Edward Graham, deceased. The facts of the case show the following:

Prior to September, 1947, Sadie Graham, appellant, and her husband were residents of the state of Washington. The property in Arizona which was attempted to be set aside as a homestead was purchased about six months before the Grahams moved to Arizona. At the time they came to Arizona they brought their household furnishings and personal property with them. There was still some property of the value of approximately $3,000 in Washington. The husband died intestate in October, 1949, after having lived in Arizona for two years.

Mrs. Graham, shortly after the death of Tier husband, returned to Washington and instituted probate proceedings in the courts ■of that state. She filed a petition asking that she be appointed administratrix. In this verified petition she set out the following :

“That Charles E. Graham died in Cactus in the County of Maricopa, State of Arizona, on the first day of October, 1949, and that he was at the time of his death a resident of Port Orchard, in the County of Kitsap, in the State of Washington, and left estate in Kitsap County, Washington, the probable value of which is: Real Property $2750, Personal Property $250.00

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“That your petitioner is the widow and •surviving spouse of said deceased, and therefore is entitled to have Letters of .Administration of said estate issued to Sadie R. Graham, who is a resident of the State of Washington, and a fit and proper person to administer upon said estate.”

She was appointed administratrix and disposed of the estate that remained in the state of Washington.

Appellant’s son instituted probate proceedings in Maricopa county, Arizona, and asked that he be appointed administrator. After appraisal and inventory, and while appellant was in Washington, she filed a “Petition for Decree Setting Aside Homestead” but did not allege she was a resident of Arizona. Charles I. Maxwell and Beatrice E. Maxwell, secured creditors, contested the petition. Two separate hearings were held by the trial court and after both, the petition was denied. The only evidence presented by the appellees at either hearing was certain exhibits showing the various papers filed by appellant in the Washington probate. Appellant took the stand and testified as to the change in residence from Washington to Arizona.

Appellant makes one lengthy assignment of error which, when reduced of its redundancy, is as follows: The court erred in denying appellant’s request to set aside a probate homestead to- her, because the evidence conclusively shows that appellant and her deceased husband were residents of Arizona.

The first question we would like to discuss is that of homesteads generally. From the assignment and especially in their argument, counsel for appellant seem to believe that property can become impressed with a homestead simply by the intention of the owners. They say in the assignment “and continuously occupied and claimed the said property as their homestead for a period of approximately two years * * Again, in their proposition of law, they state “a homestead, established, occupied and continued in Arizona during the lifetime of the husband * * There is no testimony that any homestead was perfected prior to the death of the husband. Section 2-1 — 502, A.C.A.1939, states the one method by which such a homestead can be established before death. See also First National Bank of Mesa v. Reeves, 27 Ariz. 508, 234 P. 556; MacRae v. MacRae, 37 Ariz. 307, 294 P. 280.

Appellant also argues although does not raise it in her assignment of error that a nonresident may have the benefit of a probate homestead. This court has repeatedly held that counsel’s argument based on faulty assignments of error will not be considered. Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548; Tidwell v. Riggs, 70 Ariz. 417, 222 P.2d 795. Nevertheless this court thinks a pronouncement on that issue would be a benefit to the bar and the courts of this state. 26 Am.Jur., Homestead, sec. 175, p. 110, states: “The right which the homestead law secures to the surviving spouse and children is for the benefit of residents of the state; it may not be claimed by a nonresident or by the widow of a nonresident. A widow or orphan must be a resident of the state at the time of the decease of the husband or father in order to obtain the benefit of the homestead law. * * See 40 C.J.S., Homesteads, § 243 c., p. 730, citing Prater v. Prater, 87 Tenn. 78, 9 S.W. 361: “A homestead right in favor of the widow generally does not. exist where the husband was a nonresident of the state, and, under some statutes, also where she was a nonresident at the time of.his death.”

We hold that “Homestead laws exist for the benefit of residents of the state, whether entitled to political and civil rights of citizenship or not. A non-resident cannot claim the exemption, unless the statute clearly bestows the right upon him. * * 21 Cyc., Homesteads, page 470.

The only question remaining- to be answered on this appeal is whether appellant was a resident of Arizona at the time of her petition to set aside the probate homestead to her.

The sum total of appellees’ evidence con-, sisted of the various exhibits from the Washington probate proceedings, wherein the appellant- stated, under oath, that she ■and her deceased husband were residents: of that state.

While such papers were properly in evidence, as the early part of this opinion shows, they do not have the conclusive effect that appellees urge upon us. Certainly however, as statements made under oath,, it is proper to consider them as strong evidence. As was said by Chief Justice Lockwood, in Hiatt v. Lee, 48 Ariz. 320, 61 P.2d 401, 404, 107 A.L.R. 444: “It is true that it would seem to the ordinary mind that the only reason why such an affidavit was not conclusive on the question of evidence is that affiant either did not know that he was making oath that he was a resident of the state where he registered, or that he deliberately perjured himself. The first alternative would require a degree of stupidity far beyond the ordinary, while the second would, of course, show a deliberate intention to commit a felony. Yet either may possibly be true, for we know such things have happened, and apparently the trial court must have believed in this case one of them was true. * * *.”

In the case under consideration, there was no explanation by the appellant as to why she made the statements in the Washington proceeding. Counsel attempted to bring this out, but the appellees objected to the questions. The trial court sustained those objections. It is not necessary to pass upon that as the matter was not presented in accordance with Rule X, of the Rules of the Supreme Court, in that it was not assigned as error with the reasons therefor. Thornburg v. Frye, Tidwell v. Riggs, supra. Meyer v. Killingsworth, 73 Ariz. 143, 238 P.2d 1097.

The evidence on behalf of appellant being a resident of the state of Arizona consisted of her sworn testimony that she and her husband had been residents of Maricopa county for two years and one month before the death of her husband, and that at the time of her sworn statement to the contrary, in the Washington probate court, she was not a resident of the state of Washington.

The question simply resolves itself down to the proposition of whether there was sufficient evidence to sustain the trial court’s order. Remembering our oft-repeated rule “ * * * that where there is a conflict in the evidence we will not disturb the findings of the trial court if there is any reasonable evidence in the record to sustain it”, Chester v. Chester, 69 Ariz. 104, 210 P.2d 331, 333, we hold that there was sufficient evidence to sustain the trial court’s order in the instant case. See also State Tax Commissioner of Arizona v. United Verde Extension Min. Co., 39 Ariz. 136, 4 P.2d 395, 396, where we said: “ * * we must remember that the cardinal rule of this court, adhered to without exception for many years, is that, where the evidence is in conflict, we will not substitute our opinion thereof for that of the trial court. [Citing cases.] And, if any reasonable evidence supporting such judgment appears in the record, the judgment will be sustained. [Citing cases.]” And the late case of Valley Nat. Bank of Phoenix v. Carrow, 71 Ariz. 87, 223 P.2d 912.

Order affirmed.

PHELPS and LA PRADE, JJ., concur.