Hartley v. Stibor , 96 Idaho 157 ( 1974 )

SHEPARD, Chief Justice

(dissenting).

I dissent. The entire majority opinion rests on presumptions arising from the “introduction” of two documents. The first was the decree of the probate court in the estate of Mrs. Stibor’s husband indicating that the property in question herein was the sole and separate property of the decedent. The second document was the alleged warranty deed purporting to convey the property to the plaintiff herein. The district court stated at the time that the “deed” was tendered by plaintiff:

“I think that is probably going to be the whole issue in this lawsuit. I do not think I can recall the legal issues on ruling on admissibility of the deed. I think the document can be admitted and reserve all rulings on its legal effects, whether it is void or whether it is voidable.

“It is a little hard after the first five minutes of the trial to rule on the admissibility of the document where I intend to rule on its legal effect at the same time.”

The record does not indicate that the reserved ruling was ever followed by an unconditional ruling of its admissibility or its legal effect. Therefore I believe the majority opinion to be erroneous in drawing any presumption of any kind from that purported exhibit.

I would further point out that the parties stipulated at the outset of this action:

“At the time of the marriage [of the Stibor?] Helen Stibor was the owner * * * as her separate property * * * subject to an outstanding mortgage”

The decedent herein was married to Stibor in 1950 and she died in 1971. The property in question herein consisted of two houses, one of which was built after the death of decedent’s second husband. Thereafter, and for the majority of the 21 years of marriage, both houses were used as rental properties and the income therefrom contrary to the assertion of plaintiff-appellant at trial, in my judgment, would be community property.

Turning now to the plaintiff-appellant’s own testimony as revealed in the record, it is clear from the plaintiff’s own words that the “deed” was considered to be a gift to take effect after the death of the decedent. That intention is clear from the fact that decedent’s will dated February of 1971 states that the property at issue here is the decedent’s sole and separate property. Plaintiff-appellant at the time that she filed for the probate of her mother’s estate, long after the time of the execution of the “deed” indicated her belief that her mother owned the real property. Plaintiff further could not remember whether or not she had signed a sworn verified answer to a petition for guardianship in which answer she stated that the property in question herein was the sole and separate property of her mother.

I would hold that the judgment of the dismissal of the trial court should be affirmed on the basis that plaintiff failed in its case in chief to establish a prima facie case of her title to the real property in question.