*1 supra, Am.Jur., p. 374, 5AIn
this will found: be op-
“Generally speaking, when the
erator of an automobile once starts
chain own of events of his reason responsible
negligence may held he mishaps properly the
for all are
proximate unlawful con- result of his
duct, notwithstanding there are other
intervening contributing causes ” * * * injury. opinion above
quoted pre- applicable rule the facts
sented the instant case.
Affirmed. Gayle al.,
Edith PAGE et Plaintiffs Error,
Eugenia SHERMAN, Individually, Eu genia Sherman, Executrix of Icle Victoria
Stinson, deceased, Defendants in Error.
No. 38002.
Supreme Court of Oklahoma.
May 19, 1959.
Rehearing Denied June *3 Cox, Harry Hicks, Hollis,
Ross K.A. Little, City, plaintiffs Oklahoma error. Miller, Hollis, Duvall,
R. D. Duke Devier Pierson, City, Oklahoma for defendants in Head, error. Duvall & City, Oklahoma counsel.
WILLIAMS, Vice Chief Justice. was brought This action Eugenia Sherman as executrix and sole heir and under the will of mother, devisee lele Stinson, deceased, against Victoria my Eugenia “If Sherman (L. daughter, E. estaté stepfather’s executors of Sherman, (wife Fort others, Stinson, W. deceased), and establish John Worth, Texas) me in certain shall survive community interest alleged (30) days, bequeath give the sole then I by defendants property claimed my unto all daughter, Eugenia, L. E. of the estate and assets my property kind char- Stinson, every deceased. acter, simple without fee findings of fact judge trial made The character condition limitation.” judg- upon which and conclusions of law plaintiff ment entered in favor of question presented first from which against the defendants *4 whether there to is substantial evidence appeal. judgment defendants support the net trial court’s that the finding position parties As the assume the same earnings enterprises of the various Stinson generally here as in the trial court we shall community property period the (1945 Eugenia plaintiff, and refer to Sherman 1949) to community property were and not estate, of executors E. Stinson L. separate property in of L. E. Stinson al., et as defendants. which Mrs. Stinson could claim no interest. Stinsons, The at the time of their re- The in record discloses that Mr. Stinson deaths, spective ap- been married had 1934 employed salary per at a of $200 proximately years. died in Mrs. Stinson month, separate property and had no of 1952; January, Mr. Stinson died one month any year, character. The from following previously later. Mrs. Stinson had been wife, financial by assistance furnished his married, Sherman, pre- by daughter Mrs. a he invested in business known as marriage, plaintiff, vious being her sole Supply, Hollis Farm Hartley- later and in issue. Mrs. left dated Febru- Stinson a will property. Stinson Sup The Hollis Farm ary 21, 1951, in which she devised all her ply by the end of 1939 had net worth of real, personal mixed, and to Mrs. $10,560.26. At the end of II World War Sherman, daughter. there was an increased demand for farm implements supplies Mr. Stinson will de- and left a in which he and the business prospered proportionately, that, vised all his to the named defend- so as re ants, excluding flected the books stepdaughter, his and accounts Mrs. Sherman, enterprises, L. E. Stinson legatee. as a devisee there was in an in July 31, 1945, crease net worth from to respective The estates are in the now May 31, 1949, $132,401.42. process County of administration in the County, Court of Harmon Oklahoma. Upon evidence, controversial the trial prepared by will was at- Mrs. Stinson’s court found that Mrs. Stinson made numer- Texas, presumably torneys in as she was ous Supply loans to Hollis Farm and in that through inheritance of lands owner other businesses conducted in the name of state, judge trial be of the found her husband. The books of these enter- $100,000. explanation of mak- value prises disclose some of these loans were beneficiary, the ing her sole Mrs. Sherman repaid, while others were not. Mrs. Stin- provisions: following contained the will operation son also assisted in the disposition my property ig- “This Supply. Farm Hollis This finding being my well fixed nores husband who is supported by evidence, substantial we deem financially and well able take care unnecessary greater it to set out at length- wants, future and of his own needs testimony upon which the court’s con- disposition which has and fact is a based that clusion is the increase in net knowledge approval.” full his properties worth of the Stinson resulted joint industry her will contained the from the following Clause of husband and provisions: wife. earnings of do con- agree net Neither we with defendants’ found that court (supra) com- tention dis- ignoring enterprises during clause
the Stinson part closed Stin- an intent-on of Mrs. munity period were only separate son to devise estate Stinson had and therefore Texas, com- interest in the or that she intended the clause will one-half did an hus- After and did munity daughter. disclaim interest in her property to her half ac- might band’s that she have accounting, it was determined quired after community. amount allowances, was the certain credit will, ambiguity find in the plaintiff’s remitti- $60,440.77,reduced unable to devise read into intention to $3,058.46,for tur the amount only property, or that favor was entered judgment sum ignoring any interest clause she disclaimed individually, plaintiff executrix community. E. against executors of L. proposition II defendants beneficiaries, de- named estate its contend : fendants. “The undivided one-half interest *5 I, proposition property in husband’s that vested daughter left they her contend Mrs. Stinson Prop- his Community under wife estate; ignoring only separate her erty was not Law such an or interest in any disclaiming interest (supra) clause estate that could be devised her or have property might that she her husband’s pass to her heirs leaving if she died community property law. acquired under her surviving.” will the face of argued It is that from Holmes, Reade, Mr. in 220 Arnett v. Justice intended that Mrs. Stinson it is obvious 311, 477, 425, 426, U.S. 31 S.Ct. 55 L.Ed. only property her separate her to to devise expressed the view that the interest wife’s upon the premise daughter. The is based community property under of the law land was her ranch located fact that expec New Mexico was more than a mere lawyers employed that she Texas Texas and tancy, pre and that under the issue there will, prepare for her which to sented she was entitled to some sort of appointment of that state of residents principles relief general under of law. Obviously Mrs. executors, and trustees. He then added: lawyer prepare her Texas Stinson had “It necessary deep- very to go part estate, her the ranch will because of ly precise into the nature of the wife’s Moreover, land, located in Texas. during marriage. interest The daughter, her designated Mrs. Sher she discussion has fed the flame judicial of sister, all man, her her son-in-law and controversy many years.” Texas, trus residents of as executors and position very taken, rela If defendants’ obvious reason of is well tees for the tionship ability legatees in their to devisees and and confidence under the will E. of L. separate carry property take all of his out the terms of will. We conclusion all of the unable concur in defendants’ the ex- to to plaintiff’s limit clusion of pe- that these facts disclose an intent to Mrs. Sherman. If disposition founded, tition is will of Mrs. Stinson’s well then to an individual only. community think interest in property in Texas one-half supported passes under Mrs. view is clause II Stinson’s will this to her will, “I supra, daughter, wherein is recited that Mrs. The Sherman. answer de- upon my pends bequeath daughter, resolving unto question of give whether, kind my property all Eugenia, every Oklahoma of of mixed, character, real, personal surviving or husband takes the wife’s simple by right survivorship, situated in fee of and without interest wherever or whether or the community character condition limitation”. her interest
275 this construction passes or that the California death to her heirs at her held Court that the husband took all the testamentary disposition. devisees community by right survivorship. Cali- Defendants, support their claim has, statute, however, fornia amended its community Mrs. Stinson’s interest Civil 1401, Code Sec. now West’s Ann. hus- predeceases her where Prob.Code, 201, so that under the amend- § survivorship, band, goes by right to him ment, the testamentary wife can make dis- rely upon Supreme Courts decisions of the position of her undivided interest one-half Mexico, Spreckels v. California and New community. 228, Spreckels, 339, 116 L.R.A. Cal. P. 36 1013; pointed out, we have As the New Mexico 497; Cal., McKay Lauriston, 263 P. and California longer cases can no relied 258, be Estate, and In re Chavez’s N.M. support defendants’ conclusion that 769, holdings. P. 69 A.L.R. and kindred community Stinson’s Estate, question stated Re Chavez’s expectancy, Oklahoma law is a mere propounded as follows : dissipated prior her decease surviving “Does the husband take husband. community prop- wife’s interest in the erty by ‘inheritance’ or ‘other statutes’ Title of the Session Laws within the ? meaning of the Act of 1921 Oklahoma, 1945, p. 32 Okl.St.Ann. inquiry court answered its [The 51-82 note, provides §§ all state, ‘In stating] the wife has acquired by either husband or wife testamentary power any part over marriage and after day the effective ” community property.’ (The Community Property Act Act) shall deemed the prop (sec. 1840, common Sec. 26 *6 Code 1915) the controls erty of the husband and and each by Chavez wife case Statute, the New Mexico shall be vested with an undivided one-half provides: interest therein. “Upon wife, the death of the the en- held in Davis’ Estate v. Oklahoma tire community property, without ad- Commission, 644, Tax 206 Okl. 246 P.2d ministration, belongs the surviving to 318: husband.” Community Property “Under the law exceptions stated in the section are Certain Oklahoma, prior repeal, of to its the So, material discussion. under not present wife had a vested interest Community Statute, New Mexico the the community one-half the testamentary power wife is denied of dis- expectancy, not a mere and and community interest position of her the the husband death of she did not take possessed the husband is while community one-half of the estate disposition power to control will the the inheritance, right in her own but as powerless thereof but one-half owner.” interest where she sur- affect the wife’s cases, that, supra, say him. The California But defendants even vives if Mrs. Stin- right community to take interest in disclose the wife son’s ais vested community property interest, pass of the de- that interest cannot one-half distribution, pended whether she survived her hus- descent and statute of for the words, right other title of community of ex- reason band. community only ripened under pectancy, terest was not Mrs. Stinson at time 84, death, in the event her Title citing husband into a vested of O.S. § death, however, her. Her predeceased The first sentence of Sec. 213 1951. reads: husband, hap- any person, having that of her prior made the “When title to es- impossible, contingency of this and not otherwise limited pening marriage tate con- tract, thereupon belonged the entire estate without disposing to her dies of the estate will, administration. It was it descends and must without distributed terms of her (citing manner:” will. 15 of following the Oklahoma succession). Community (1945) provides Act manner of that: “Upon the déath of the husband or bring in in order to argued It is wife, surviving spouse shall of de under the statute terest of the wife administer all Stinson, by incumbent on Mrs. scent was manner and same with the same District or suit in the recordable duties, privileges authority and as as re of record to establish title Court partner vested surviving in a to ad- quired by repealing Act minister and settle the affairs of a 32, 2, Law, 1 and Ses Property Title Secs. partnership upon death other of the 1949, Oklahoma, 32 Okl.St. sion Laws of partner, as in Title Okla- analysis 82, We Ann. reserve our §§ 51 - 255, pro- homa Statutes Section repealing act for discussion of the surviving vided that the husband or proposition III. Defendants disqualified wife not be shall from act- rely upon in Bowman v. our discussion ing executor or administrator of the as Hulsey, sus wife; estate of the deceased husband or taining their contention the descent provided further, that the survivor only joint property spouses applies if pay of the husband or wife shall out spouse who title thereto was vested in the community property, except of the supra, Hulsey, died In Bowman we first. exempt property, homestead all held: community, debts of whether cre- “Where husband’and wife accumu- wife; ated husband or the property by joint industry late their provided further, all debts that when prop- coverture the title to of the shall have been erty being in the husband and vested fully shall trans- satisfied the survivor predeceased wife the husband convey to the administrator or fer the husband thereafter dies without executor of the deceased one-half of issue disposing and without community property remaining jointly acquired property, proviso be administered and distributed oth- in the second subdivision of 84 O.S. er sub- estate either inapplicable 1941 213 is *7 does § ject to the terms of the will of the affect govern or its devolution.” or under the laws of descent deceased holding in well our as That decision be, may and as the distribution case 198, 200 Wright, Okl. Draughon v. thereafter all the of interest Estate, 676, 921, Griffin’s 199 Okl. In re partner in surviving 933, holding than go no further P.2d 189 property tenant in shall be that of a joint acquisition of averment of that: common; further, that in title of property without averment any interest in a homestead so con- make is insufficient to spouse dying first veyed subject to adminis- shall not be respecting the devo proviso applicable the State, this tration under the laws of acquired property under jointly lution of except provided by manner law 213(2). O.S.1951, 84 Title § of the enactment of this at the time Act.” sec the cited that under clear It is its by paraphrasing, make cannot, where limited to cases is statute tion meaning more clear. The title. dying first had no spouse inasmuch as argued that lim It further is Community Act is not so Oklahoma Property Community provisions of dis provides for the expressly ited, as it lifetime, cannot, during her the wife com Law in interest wife’s of position in her her interest encumber or predeceases her 'alienate if she property, munity the com- property (presumably law husband’s passes by the interest husband, which is, under the statute interest), she munity or distribution descent of
277 may judgment thereupon from testa- wills, expressly excluded be recorded of O.S.1951, county any mentary power Title 84 each of the af- under § property reads: fected Section failure Proviso of located. The The agreement, to make and record such an further, person “Provided or to file such (1) an action within one dispose property which shall will of year and judgment record the in due alienated, could not the testator thereafter, course any event conveyed living encumbered or while within (3) years three from the * * *» effec- Act, tive date of this shall bar hus- fully disposed That contention is band or wife whose title or interest .15, supra, reference to of the Com- appear does record, not or who is munity Act. We therefore conclude separately not possession in- Mrs. Stinson had a undivided one-half any from claim or interest terest in the against per- (3rd) third passed plaintiff said interest sons any acquiring interest therein. provision of her will. (3) years After three from the ef- Proposition fective date of this no action or they assert that did as Mrs. Stinson se proceeding character shall be agreement cure a with hus recordable brought to establish recover or bring band or suit to establish her interest terest based the terms of record the act repealing the repealed, of the Act the inter- unless Property suit; Law bars this and that est previously has been established of establishing burden so record, provided.” as hereinabove record rested on Mrs. Stinson and the that, argue Defendants as the interest personal to her and did not survive her of Mrs. Stinson had not been established of death in favor executor or devisee. record judgment or and as clause, provision repealing brought had not an action within the 32, 2, Oklahoma, three-year Title Laws of Sec. Session limitation of (by the Act June 1952), plaintiff’s barred; 32 Okl.St.Ann. follows: action is that the § intent of the Act interest died year (1) “Within one from the effec- with Mrs. plaintiff Stinson and that as her Act, any date of husband and tive personal representative may not maintain wife whose income present action, Farris, citing subject the Act re- terms Jones P.2d 344. In that case we pealed by section, may foregoing said: agreement, enter into a recordable property jointly acquired “Where rights acquired by
specifying the either *8 during coverture is of of them record in the or each under the terms of husband, Act, name of the question no altering rights they if those of desire, resulting involved, trust being describing so and the still affected, living, husband is may record the and the wife has steps taken no county clerk the officeof the of their determine her inter- therein, est it is not such county and in the a residence officeof the vested in- county terest in her will any clerk of each where as descend to her upon property may her affected be children death located. intestate dur- any husband, ing the lifetime of Should and wife un- husband as so to reduce his interest agreement, able to reach an therein.” such ei- may ther file an action District in the The rule inapplicable there announced is county here, Court of the pointed of the residence of out, for as we have Mrs. Stinson, either of them for a determination of under Davis’ Estate v. Oklahoma rights acquired under the re- Commission, supra, Tax had a vested in- Act, pealed copy terest, which, and a certified 15 of the Com- by- being not evidenced her interest Act, to the descended Property munity 213, 84, not, under Title title in her could § event in the wife heirs or devisees heirs O.S.1951, pass Stinson’s Adverting to Mrs. her husband. predeceased she descent. act, us that it is clear to repealing optional with the entirely it was previous the Com- Our discussion of community into to enter wife under the equally munity Property applies here Act action file agreement or an recordable and needs no further elaboration. Court, year from within one in the District defendants On second contention clause, repealing effective date place decision in reliance on our Jones community in- determination for a Farris, quoted. supra, That hereinabove agree not with We do terest. question de- is limited to decision barred the action is construction (not jointly acquired property where scent Stinson The interest of Mrs. limitation. property) is of record lived, interest, had she she a being vested husband, the wife taken and where has be- on or brought the action have could steps her interest therein. to determine expiration of the fore June wife It is there said the has such Act, but in the three-year period provided descend her chil- vested interest as will January 4, the ac- having died on she during the dren her death intestate timely brought the executor tion was of her life husband. on estate, present being filed action noted, we have the Com- As heretofore May 1952. munity Property in- Act created a vested in- of such a recordable In absence community proper- in the in the wife terest decree, nor neither husband strument or ty. construing that Act we held expiration of three wife could after Estate Tax Davis’ v. Oklahoma Commis- date of the years from effective re- sion, supra, against third maintain action pealing act present vested was a interest of any interest in the com- persons acquiring conclude was the owner. We therefore munity property. timely that the action of Stinson was properly brought and not barred provides that Lastly, repealing act Supp. Title O.S.1949 § years (3) from the effective “after three Proposition 4 defendants contend Under pro- Repealing no action or date of Stinson had no that Mrs. investment in (meaning between ceeding of character enterprises. Proposition Under husband’s representa- their the husband wife or contend that the Hollis Farm defendants brought to establish or re- tives) shall be Supply and interest Mr. the half Stinson an interest based cover Hartley-Stinson property sepa- were repealed, Act terms of the unless Stinson, L. E. and the rate previously interest has been established separate prop- therefrom remained crease record, provided.” As here as hereinabove Proposition erty. 6 defendants con- applied, brought within the the action that the increase net worth of Mr. tend three-year period for in the thus Hartley-Stinson partnership repealing act. capital gain which remained his however, Defendants, contend that *9 Proposition goes 8 property. to the court’s community in- wife’s the to establish disputed upon items of credit ruling as Mr. personal right property is a in the terest one-half interest of Mrs. Stin- Stinson’s wiped out at her death. That was community property income. son’s first, upon grounds: two made is contention As to defendants’ contention rights avail that failed to herself that investment had no or interest repealing act to into Mrs. Stinson in the enter enterprises, they husband’s are met in her agreement, or institute recordable second, premise that under Sec. 3 of Com- one-year period, and with suit within
-279
acquired
Act,
.property
separate,
come
munity Property
property
all
ap-
because it
pears‘to
during
com-
have
joint
accrued
either husband or wife
without
,
the com-
efforts
munity period shall 'be deemed
or -shoulder-to-shoulder
labor
both,
or industry
munity property of
and each shall
of'both husband and wife.”
interest
one-half
vested with an undivided
Moreover defendants cannot
limit Mrs.
therein.
participation
Stinson’s
community
in the
out,
pointed
the'
we have
evidence
As
property by computing
job,
labor on the
for
court that
supports
findings of the trial
during
years
their 30
of married life she
net increase of the
performed
customary
the usual and
duties
$132,401.42. De-
period
the Act
of a faithful and
We
industrious wife.
1944
discloses that between
fendants’ audit
consistently
have
acquired
held
rights
enterprises received
1950
Stinson’s
joint
Mr.
industry of husband and wife
from
contributions
Mrs. Stinson
supported
are
by proof
par
that the wife’s
$16,200
amount was
amount of
like
-
ticipation
customary
to her
limited
period.
during
returned to her
Estate,
household duties..
See
re Stone’s
33,
246,
86 Okl.
206
P.
and Flowers
Stinson’s
Audits made Mr.
books
Flowers,
209,
117 Okl.
622.
245 P.
by plaintiff
submitted in the
records
1935 to 1950 Mrs.
record disclose that from'
Proposition
defendants’
Enter-
Stinson advanced to
Stinson
they
properties
contend that the
in
here
$18,145
prises, $22,699.76,'
and the sum
separate properties
volved were
E.L.
her,
unpaid bal-
leaving
returned to
acquired
Community
before the
$4,554.76. In
to financial
ance of
addition
Property Law went
into effect and their
husband,
her
given to
the evidence
aid
separate
increase
remains his
cit
héretotore'noted,
find-
sustains the court’s
ing
Community
Act,
Property
which in
materially
him in the
ing that she
assisted
part provides :
operation
Supply busi-
of the HoIlis-.Farm
husband,
“All
both
defendants’ con-
ness.
conclude .that
We.
personal,
claimed’by
real and
owned or
Mrs. Stinson had no invest-
tention that
him before marriage or before the ef-
or interest
in her husband’s business
ment
fective date of this
is
whichever
is without merit.
later,
acquired
afterwards
Swanda,
In Swanda v.
devise,
descent,
gift,
or received as
we sustained
claim an
P.2d
wife’s
compensation
personal
injuries,
undivided one-half
interest
com-
separate property.”
shall be his
Sec-
munity, arising
of the income and
out
tion 1.
crops,
profits
growing
from
notwithstand-
plaintiffs’
misconstrue
think defendants
to the farm land
in the hus-
ing title
stood
Plaintiff
action.
making
cause
band.
separate property
de-
claim
In Turner v. First
&
Nat. Bank
acquired prior
ef-
cedent’s
Okl.,
Co.,
we
Trust
fective date
Act. She
interest in
a wife’s
sustained
upon
claim
undivided
bases
one-
theory
“joint
indus
profits
re-
half
income
evidence
try” although the
was limited
during
from the businesses
ceived
the com-
proof that
the increase
net worth was
profits
munity period.
Income and
dividends,
computed by
inter
totaling
meaning
within
the Com-
separate
from
rents received
their
est and
munity
We have examined
de-
Act.
our
community,
properties
ex
less
in Clanton v. Oklahoma Tax
cision
Com-
In that case we said:
penses.
mission,
92, 253 P.2d
208 Okl.
562 relied
accruing
Proposition
support
from
“If income
*10
community property,
upon
is based
the
property is
it is
That case
fact
established
husband sold shares
stock ac-
for the courts to declare such in-
that
not
Berry
by
and
case was
prior to the
controlled
quired
California
case
subsequent
inapplicable
Act. The
statute and therefore
them
to the
under
sold
in-
Community Property
that
Oklahoma
findings
Statute.
is based
support
position
not due
We find no
of the stock was
for defendants’
creased value
profits
and
industry of
that increases in
joint
husband
wife
due to>favorable
in-
claim
economic conditions
therefore he could not
converts
that
separate
income
community property
property.
for
into
That the-
as
crease
ory,
purposes,
analysis,
treated
if
would
but
should be
followed
final
tax
same
its
amply place
capital
claim-
gain.
The record before us
unreasonable burden
net in-
ant
plaintiff's position
Community Property
under the
Act to
that
sustains
profits
industry
properties
segregate
joint
resulted
in the Stinson
from
crease
profits
from
joint
industry
under
con-
varying
from
economic
ditions.
wife.
Proposition 6,
defendants
sup
authority
The weight of
Partnership
Hartley-Stinson
claim that the
profits
ports
our conclusion that income
was an investment
so that the increase
community property. We think
constitute
capital
the net worth of that interest
awas
decision that
result is fortified
our
this
gain
separate
remained
participation
not
business is
active
Hartley
Mr. Stinson.
he
Mr.
testified that
required
wife but that her
Hartley-Stin-
and Mr. Stinson formed the
may
performance of
established
be
Partnership
partnership
son
in 1944. The
Swanda, 207
duties.
household
Swanda v.
selling
engaged
machinery
farm
in Ho
575;
First
v.
Turner
bart, Oklahoma, doing the
kind of
same
Co.,
P.2d
Okl.,
National Bank &
Trust
business as that conducted
Stinson
1012; Harmon v. Oklahoma Tax Commis
Supply.
the name of Hollis Farm
sion,
In the
189 Okl.
Turner
we said:
re
finance
business. Later Stinson
conclude
all of the income
“We
$2,000.
duced his investment to the same
interest,
accruing from
rents and divi-
Hartley
charge
was
of the
Mr.
active
separate property
from the
dends
salary
business and drew a
his services.
for
period
each
our
active
expense
was
ac
Mr. Stinson
credited an
Community Property Law
consti-
only.
Hartley in
count
Stinson assisted
community property.”
tutes
P.2d
[292
e
keeping
partnership
books
th
of the
1017.]
by Hartley
questions
was consulted
af
on
Defendants, however,
operation
in-
argue
fecting
that the
Net
of the business.
profits
the L. E. Stinson
of the business
distributed
value of
were
crease
net
partners.
equally
Upon
for
testi
this
Properties
profits
mony
Hart-
were in
defendants
as Mr.
these
contended
the reason
ley
manager
charge
conditions fol-
was the active
to the economic
main due
capital
business that the
War II. That because
income
World
lowing
machinery,
farming
for
and Mr. Stinson’s one-half interest
gains
demand
greater
profits
in
That
must
treated as such and not as net
profits were made.
greater
joint
community.
Defendants
reason
come
not accrue
did
Comm.,
Berry
rely
Oklahoma
husband and wife.
on Clanton v.
Tax
dustry of
support that
Cal.App.2d 624,
Under defendants’ last opinion, To sustain the three they claim that court propositions the trial erred in al must answered in the af- only lowing (1) are: them credit of as Mr. firmative. These That Mr. and $313.-68 Stinson had not made one-half interest in Mrs. Stinson’s Stinson’s whereby community property. each would Defendants take submit name; (2) ted an audit of of which was in his or her Mrs. Stinson’s income title *12 282- time, stripped at that Mr. been for had action right
That to institute an up, acquired one-half of the business he had built property rights determination of parlance, “wipe sur- in common him Community Property Act would intended, or out”. I do not she husband This believe of either the vives the death wife; theory in and I think one-year limitation this is substantiated That (3) paragraph pro- mere sur- in her will inapplicable, which repealing act is effect, vides : and the plusage and of no force or applicable.
three-year limitation is disposition my property “This ig- my nores husband who is well fixed repeals the Title 32 O.S.19S1 § care, financially and well able to take alia, Property pro- Community inter wants, of his own future needs and vides : fact, and disposition is a which has year “Within ef- (1) one from the his full knowledge approval.” and Act, any date of husband fective this provision complete This agree- discloses income whose or wife ment between Mr. and to- Mrs. Stinson as subject act to of the was the terms property rights of each and shows * * * may enter into a recordable claiming any prop- was an interest agreement, rights ac- specifying erty, the title of which * was in her * then quired either them or each of my opinion, husband and in is the reason altering rights desire they those so if why there was not agreement * recordable * *. Should husband wife entered into nor an action instituted agreement, be unable reach to such an By express either Mr. or Mrs. Stinson. * * may either an action file provision will, in her Stinson stated' opinion that and Mrs. Stin- my Mr. It is financially that her husband well was fixed repealing son, the effective date after and that her will knowledge had full his would agreed each act, considered and consent. Both knew the value their property in which of that be the owner agreed disposition as to the name, and there was or her in his title was it. specifying agreement file an to no reason however, Assuming no con- no that was of record rights, their cerning respective property their rights had' a determina- an action for necessity file made, right been did. a of action for the- is well to remember It tion thereof. determination thereof survive the death of with are concerned that we connection Community Property Mrs. Stinson? The together as hus- had lived people who two Law, which was amended re- thirty years. According for band and wife pealed for adminis- witnesses, complete testimony of the community property upon of all tration accord, affection ex- love and harmony and the death of the husband or wife. How- them, and each all times between at isted ever, in the act repealing the welfare, well-be- ever mindful Law, Property provision made for of the other. financial condition ing, and prior administration of an estate to an' ever, any time considered say To that she at agreement being recorded or action' an one-half of the her husband taking from brought adjudicating ac- each accumulated hard work property he had quired. supra provides: ability, or he ever his business year (1) taking one-half increase of her “Within one from considered the effec- exactly opposite Act, any their tive date of this husband or years thirty through their- -of mar- whose income actions wife * * subject She knew that to do so would act life. *. ried Should' any husband and being un- jeopardy unable to place wife agreement, reach years, may such an later either himself in maintain able * * use, she chose not to and which there- file an action *. failure agreement, general fore was not vested. As a and record such make *13 (1) prop- rule the zvithin character of an action one or to such file * * * erty jointly acquired by or bar the husband husband and year shall does not wife is interest dissolved the death of either whose title or wife appear sepa- spouse record, (5 863), not who is R.C.L. unless some or property prescribes otherwise, statute rately possession of and we in ” * * * have no permit which statute would children inherit to suit provisions act of 1949 contains no upon the death their mother.” whatsoever, bring heir ac- for an to such tion, heir, survivor, ad- in fact the words survive, If the right of action did was testate, ministration, descent, succession, in- three-year the one or to institute limitation testate, decedent' estate are not even or proceeding applicable? 83, supra, Sec. 83, supra. leg- Had the mentioned in Sec. 2, 1949, became effective and under June to survive islature intended for such action express provision act, the fail- wife, death or it of either the husband ure agreement make record such an would have so stated. or file an action year, within one would position,
Mrs. bar the in no better husband or was wife whose title or in- repeal appear a after the of the act than where terest did not of record who was or possession. wife claims an not separately interest in her husband’s under the rule that the daughter, plaintiff Stinson’s acquired by through joint ef their herein, could not greater rights have forts. Had she claimed an rea interest Stinson; and, than Mrs. Mrs. Stin- since efforts, joint only son their it could appear son’s interest did not of record or established or action possession separately she and this however, establishing right; court such year action was not filed within one after action would have .to be instituted act, effective date of the repealing this her lifetime and survive her would not express action was barred terms of death. She did not avail herself of the 83, supra. one-year If the limita- statute, right given her and fail applicable is tion or husband wife .to ing to do such right so not survive her. did appear whose does not of record or interest Farris, In Jones separately possession, who is not it is 344, 346, said: we surplusage mere and of no force effect. here legal title was in the hus- “The my three-year opinion limitation, re- rights available Whatever were band. by plaintiff, applicable on lied in- those wife, or to assert resolve an persons stances where third are involved acquired jointly in the terest acquired a claim or who exercised, by her and it never were community property or where the interest never may she would have be that appears of record or or husband wife is them. even to exercise And had cared possession, separately applica- and is not so, par- uncertain what done it is she at bar. case ble portion would fraction she ticular reasons, respectfully For the above I cannot hold obtained. have dissent. had, wife, which as a children, to state am authorized that Mr. for it I descended Justice concurs in the if WELCH views right which was available she de- herein ex- pressed. apparently to use but sired