*1 Mr. written Justice correctly McGhee for the court determines question my submitted and invokes disapproval only
concurrence. relates My predicts
to so much of it as what we would supposed pre-
do state facts if were opportunity
sented. The for error is multi-
plied proportion exact number supposed
times volunteer our we views Possibly,
facts. when confronted
grounds delayed appeal, facts for a
my will views accord with those expressed today. majority Nevertheless, I
should like to feel free to hold otherwise they
if not. I think do decision of the
question should abide the day when we
must is unnecessary decide it. to do
so now.
TRIMBLE TAL et al.
No. 5522.
Supreme Court New Mexico.
Feb. 1953. ap- claims were filed
After said a de- called for proved, administratrix question court of the termination *2 in this real involved whether the estate subject payment. From appeal was to property was ruling the widow, and and his of the decedent subject payment of claims therefore estate, appeals. she against is, controversy of the background original petition In her briefly, follows: estate, administra- probate of the for trix stated: appellant. Hoy, for Farmington, G. W. R. petitioner “5. That the deceased and Ryan, Al- Keleher and & McLeod C. deceased, herein, owned J. burquerque, appellee Joseph’s for Hos- St. property situated in the town of real pital. Mexico, ap- New Farmington, subject $12,500, value of proximate Tansey, Jr., Farmington, M. for Charles ” * * * incumbrances. appellee Hospital Farmington Gen. and Eugene Dr. N. Davis. filing petition, Subsequent to the property learned the administratrix COORS, Justice. in fact been deeded to question had tenancy. herself decedent appeal from an order of the This is an the estate filed inventory When County sitting District Court of San Juan made the widow administratrix and Lowell probate in the of Walter following statement: Trimble, intestate. property were filed “That the abstract said claims creditors’
Certain Equitable ap- deposited estate, were had been with the all which against the Company Life Insurance in connection (the widow by administratrix proved property: real approx- with a loan on said amounted decedent) and which hospital not aware charges, medi- the said administratrix was $1,700 for imately expense held in ten- and another that said burial cal service ancy ob- until the said abstract was of. the personal *3 ch. 1. last named This sec. heirs as- assigns, presumptions section certain establishes signs survivor.” of such alone, wife conveyance where the properties that the were stipulated husband, It was or to her and her to which refer community purchased There hereafter, but, with funds. ence will be made main no the deeds were made in suggestion stay system community property of our rights attempt defeat of credi- contained in of the first sentence Sec. 65- quoted just tors. above. assignments argued of error
The four principle community Another basic of are presented appellant’s brief-in-chief property Funiak, Principles as stated in de question inter-dependent and raise Community Property, p. of Sec. for the court to error trial whether it was as follows: question property find was com- Span- question “There nowas
munity property. law, course, upon the ac- ish of pivotal question The quisition property under purchase these facts is or other whether transmutation of community prop- through community property, the use of erty (i. e., purchase funds) into acquired purchased common or so law estate of community property; been ef- also same has^ fected. pur- was true of or in Hernan- Appeals through Circuit
chased a husband or Court Cir., 1931, F.2d money Becker, dez v. the use of of the husband property laws involving money where such was earned or case Tax, Estate Federal marriage New Mexico and the gained during the since it tenancies: regard to property.” constituted declared two “A arises point, p. 205, later The same section at a any subject of persons or more have continues: there is a jointly in which ' usually “The rule is correctly also title, unity interest, unity unity by, followed the courts of our communi- possession. 2 Bl. time, unity of (cid:127) ty property states that ac- * * * 180. Com. quired during marriage through the use an estate of such chief incident “The community property also is com- survivorship by virtue of' right of is the munity property.” joint ten- which, one upon the death of Superimposed upon these doctrines is the pass to his ant, does not his interest 65-206, declaration of Sec. N.M.S.A.1941 but the entire representatives, heirs or Comp., that “Either husband or wife surviving co- tenancy remains to enter any engagement into or transaction surviving tenant tenants, last other, with the whole; or with person other 183, 184; 2 Bl.Com. takes respecting property, * * which either might, does not take The survivor *. unmarried; subject, if in transactions be- tenant from moiety themselves, tween general rules of successor, it un- but takes his him asor common law which control the actions by virtue der persons occupying confidential relations tenan- by which instrument ” * * * with each other.” cy created.
Growing by side, side only many legislative and in one other in- There remains directly determining stances infused in guide our us pronouncement property systejn 65-101, issue, are certain estates N.M.S.A. of own- present *4 ership developed by pro pertinent, the which Comp., common law. N.M. as far 1941 so amendment, Camp. S.A.1941 provides: Sec. 65-302 as follows: vided, before acquired after property — nn property. “All other holding “Methods for husband or or either marriage Husband and-wife hold as n community property; tenants, both, common, tenants' in is as conveyed any property is to a community property.” whenever married woman an instrument in this divorce action the claimed to own wife presumption writing- that is tenant, is title half of certain as a .thereby vested in her her and an in additional half interest remain- property. And if the ing property by be to half of the virtue of her n suchmarried woman and to membership community. her hus- in the The court person, band, any presumption there gift or to her and ruled no in the latter instance. this married The rationale of presumption .the conveyed her, part decision is estates of -womantakes incompatible ownership a are unless different in common .-astenant n intention nature, further, very and, expressed that the in instru- statute on idea of this sec- its face excludes a ment, presumption presumption gift attaching to a deed in mentioned, conclusive favor lion “ n phrase a dif- tenancy by the ‘unless purchaser encumbrancer a expressed in- ferent in the considera- intention is good faith and for valuable ” ” ** * strument.’ tion. by Laws was amended Although section Tillian, 1947, 74, this August In N.M. 1, made to reference is sec. ch. construing sec. 65-401 said property in statute because prior amendment, earlier recognized to its we question before case was presumption gift wife did exist amendment. property was to husband common, wife tenants with the presumptions question While . wife one-half result her owned a.s appellant, we by the specifically not raised separate property, and owned an. additional im- problem is of this consideration believe quarter property, by in the virtue.of interest California presented. plicit issue husband’s interest was com- the fact the Code 164, Cal.Civil statute, Sec. However, munity property. we are in substantially purposes is present which the California 'court in the agreement with 65-401, supra. In with our identical presumption that no similar Siberell case Siberell, 1932, 214 Siberell the case 65-401 amendment prior-to exists under sec. the facts raised 767, P.2d Cal. to husband where a executed deed is question whether joint tenants. during marriage as wife when was con- wife gift appellant husband as tenants in veyed her to her and It is the contention of life paralleled by pre- during a similar was at although she common all.times eyen indeed, and, sumption husband, where the husband and until took of pro- probate the commencement title tenants. after *5 56 250, Newton
ceedings 78, and estate, of his P.2d 120 A.L.R. ignorant 776, Wilson, question deeds to the P.2d property in were 53 N.M. 211 v. expressly deeds which cases we now overrule. but was under the impression by adopt opinions her- dissenting held We community prop- self and the far decedent Mr. Sadler in each case so Justice erty, that, expression they state his nevertheless construction statute, 65-206, intention in the sufficient to N.M.S.A. 1941 deed alone Comp., tenancy. declaring create an estate She husband or either upon further contends that the death of her any engagement enter into wife any husband the became hers other, entire or with transaction survivorship incident the classic and respecting property, person other is, therefore, subject such not unmarried; might, sub- which either if payment against claims the estate of her ject, transactions between them- husband. selves, general of common rules per- which control the actions law necessary, then, It is re-examine occupying relations sons confidential mode manner of between transmutation Clark, Trans with each other. See permissible, wherever husband Community In New Mexico mutations community property into other forms of Law, Rocky Mt. L.Rev. Property 24 ownership. 273. recently, of this Until it was view n support “Proof to transmutation wife could court that husband and convincing; clear, must strong sepa- community property transmute into preponderance evidence mere property, versa, or vice either oral rate will not suffice to effect it. Wilson, agreement. or written Newton 776; 480; 1949, N.M. McDonald recognized Thus, expressly it is now Lambert, 85 P.2d 43 N.M. limitations, that, within certain transmuta However, 250. in the recent 120 A.L.R. hus community property between tion of Chavez, 1952, Chavez v. 56 N.M. case of approved. limitation wife band and 781, 782, we declared: imposed by court in the last is contained approval quotation from the Chavez of the transmutation sentence of the “Our re-phrase In New into funds case. To limitation: property acquired by husband and wife Mexico contrary except by directly during marriage gift, to our devise decisions Lambert, community prop- McDonald v. deemed N.M. to be descent is n ownership there- form of that same shall not tween them through community property, must be established after he -held as transmutation clear, proof- j j .by convincing and a oint strong and instead as oint *6 tenancy, preponderance evi- more than a of evidence of which law re- mere quires dence. to be face it, necessity expres- creating . spouse neither the Chavez case was In property sion of intention to hold the the deed fact was one ignorant community property, otherwise than as tenancy, joint nor were the creditors there equal spouses interest must opposed the conversion in man- to -involved separate be therefore classed as ownership. We then are asked to ner joint property.” estate in n extend ruling the in the Chavez to case This headnote misleading, is somewhat present where the record (cid:127)cover the situation however, for the of the case facts disclosed absolutely to the the silent as intention of (cid:127)is the husband and wife took title to certain "husband, community manager of the joint tenants, purchase lands being as n estate, and where the her own made Then, with community funds. some thought statement she sworn declares years husband, later the pre- in an effort to property community held property. was as vent asserting prop- creditors rights his pronouncements is well examine the to erty, attempted by convey deed to the entire having property -of other states community Subsequently, his to wife. in a question. systems present on the have We action, claimed, divorce the wife alter- .already referred to California case nately, tract, ownership whole either the Siberell, supra. Siberell v. Headnote No. of one of it as half tenant and owner- that decision 9 of reads as follows: quarter ship of another interest in it property “Where was to deeded hus- virtue of contention the re- band and wife tenants, pre- as property community tained half of as sumption took that wife half interest property. negatived The court each con- property as estate and husband tention, upheld the trial court which took other half community property had ruled the entire was com- (cid:127)erty held not to exist. munity property. The court said the second n “Presumption deed, convey did not the one attempting obtain since to use of community purchase property whole funds not made property taking purpose of title with the alter thereto intent to the com- spouses munity -name of property, character of tenants was binding agreement tantamount be- further said: disputed unequiv- “It that held not in fact been
“It is funds, ocally community is admissible that evidence testimony show wife who husband and took of the defendant actually in- with reference the cir- tenants (husband) community property, tended under which deed of it cumstances to be rulings ('Citing cases.) are de- deed) Such (the second was executed support signed prevent find- common evidence to sufficient use community conveyance to alter the property was law forms ing- real property. an additional reason character of This is parties. contrary trial why division ordered the intention “ disturbed. court * * * establishes If-the evidence case the had the state of the court that the is held as power property equally.” to divide the however, cannot property, also be case therefore feel at most We certain inci- proposition that only for the stands be inconsis- dents of latter would proper by extrinsic evidence to show community prop- tent with incidents *7 joint tenancy actually not a in deed was erty.” community property intended convert to Appeals of recent Court A California ownership. The case form of into- another 1951, decision, Cal.App. King, King v. cited, however, the generally been 912, the declares rule that 2d 236 P.2d com- proposition presumption the of presented in deed is a destroyed munity property when conveyance is such to the form the as property acquired the by shown was the presumption statutory that the destroy the joint tenancy. spouses deed in under a community and that such deed property is tenancy in joint which the inter- Tomaier, 1944, a 23 Cal.2d creates In Tomaier v. 905, 907, wife are the husband and court was con ests of P.2d dispute erty. holding bases its property over in The the a a' decision on fronted with Tomaier, supra, Tomaier v. case and general the Siberell divorce declared action. Appeals Court decisions in evidence could admitted and several be- that rule to 'Certainly the decision property community prop in this was California. to show acquired in was said the two although title was .a case carries what under ordinarily opin- Supreme Court of California which would create a com earlier deed question The facts the joint estate. On the further. mon law ions somewhat .opposed pur- and wife the husband property, King case were as price $27,000; the court a home at a said: chased $21,000 paid joint was a safe In cash from Cummins, Cummins v. 7 Cal. deposit App.2d 294, the box. This was earned money it was held $6,000 conveyance borrowed husband. The a balance was joint husband and wife as of trust. necessarily preclude tenants not deed does bank secured from a borrowed holding the estate husband so A later the as com few months per- his munity property. sister, parties The $5,000 giving two from his owned amount, which California, Hollywood, houses for that and lots sonal note the bank $8,000 the lien of a bank account in money extinguished the hus he his property sister He died and band’s The the house. name. on Hollywood note for personal marriage property brought action after estate, trial court $5,000 against was taken deed. To separate property contention husband home was the that one-half of ruled the claim subject separate estate, property wife and was his appeal the $5,000. On court for the said: of the sister was affirmed. It is well to holding note.the “Moreover, a property the deed the fact made mention of court and wife husband as tenants tenancy had al- necessarily, does not and under all cir- ready executed when the been preclude cumstances, the idea of their money from the sister.
borrowed holding community proper- same ty. Siberell, of the cases relied on in of Siberell examination case An case, upon from supra, by appellant, King other decisions was de- relied Appeal, upon solely discloses California Courts cided evidence that purchased the rule that the entrenchment of been further had with com- production a deed to husband and wife munity funds and was deeded tenancy destroys parties There tenants. community property, taken this, other than no evidence' alone, and, standing such a deed establishes grantees. intention of the indicate the prima facie case the was in- Delanoy, Delanoy Cal. joint tenancy. Signif- be held 513, 514, referring tended to court, *8 icantly, all of the cases from the California Case, said: ‘This court Siberell to.the Appeal King cited in the case in that, Courts determined in the recently cite, upon rely turn Siberell case. absence evidence an intent necessary do not While we deem it pur- to de-' contrary, when holdings cases, tail here each of these community chased with funds and.the taken, two it is well to note of them. title the hus-- the name of 60 erty tenants, quote recognized, was and we from the as
band and wife following sentence: community deemed interest must be consent, severed and the interest “ * * * undoubtedly the law spouse separate prop- each therein is that, regardless of the character of the erty.’ ours.) (Italics In both spouses deed taken or both either Delanoy contest Cases the Siberell is, property, regardless of whether spouse and third between one was separate, the deed it com- shows party. from the Aside munity, in common or purchase from deed the evidence of par- intention of true parol, may ties funds, be shown and such community there was no evi- apparent evidence controvert dence in those cases to intention show ownership' effect of the character of parties of the of the as to status provided for in the instrument of testimony property. Here we have the transfer.” of both the and wife. community it wife testified was Before of the concluding our discussion * * Appellant *. testified rule, pay note an- California we must * community property it was *. exemplified by line of cases Hulse presence undisputed Lawson, 614, 525, of such evi- 1931, In the 212 P. and. 299 Cal. 598, owners, Mitchell, 1938, 32 Cal.2d both there can be no Nichols v. dence .of 550, determinations of the P.2d 197 question of their intention to hold the affirmed, holding trial courts were community property re- as estate Hulse case that an the terms of gardless although the deed one existed tenancy deed.” tenancy; holding being based Rogers holding Rogers, see similar For seems, on the fact the con- primarily, 890, Cal.App.2d P.2d 195 deed was sideration for the recognizing cases the rule for other case, Nichols the Court property. In the destroys joint tenancy a deed community prop- recognized property community prop- it is deeded to the Application although erty, Collection Rauer’s see com- proof was that Co., 1948, Cal.App.2d 248, again, P.2d alone and purchase for the used Cox, 1947, munity were Cal.App.2d funds Cox v. cases, Significantly, both property. 25. In the last of these made attempts were defeat opposed these cases separate prop- rights creditors. husband’s contention it was *9 expressions Turning next to the of kept “It must be in mind in this con- Arizona, following language nection that property court of Baldwin, 1937, frequently managed by from Baldwin v. Ariz. of one 791, 795, pertinent: spouses P.2d most may happen easily that it property purchased that by that “ * * * As between spouse and a funds exception wife a is an containing language deed thereto cre- community property rule of this joint tenancy ating an estate in deliv- derogation general state and by accepted ered to and him or her system policy holding prop- that any knowledge provi- without such being erty, and true a clause in this spouse. part the other sion on the creating deed between hold, circumstances, To under these only effective them should be where it that the mere insertion the deed of appears clearly spouses that both have be on that language binding would agreed that be should spouse deprive him or her or their way. taken in general- A deed is heirs of his or her interest ly signed hence, grantor only, only would not defeat com- munity before a clause be law in that instance binding grantees on the but in an injustice result absoulte community property thereby Therefore, law de- party. innocent in view of feated, possibility result, of such a we think necessary it not mere- we think party who ly joint’ relies on deed, language contain cre- tenancy clause deed in a- bear should such an ating estate but further it the burden showing spouse that the appear accepted by that the deed was whose he governed claims is spouse sought whose it is thereby provid- that the deed knew so to bring terms, within its knowing that ed.” provision. contained that If the deed itself contains nothing showing Subsequent case, the Baldwin the Ari- fact, such, instance, accept- as an zona court has had two instances before it ance, of the terms thereof in hand- governed which were by the rule stated writing grantees, or an endorse- above. Henderson, Henderson v. placed
ment the recorder that it Ariz. 121 parties, request record at the of the deceased husband and wife in a action, divorce had spouse, might by any established realty which was to them proper extrinsic evidence. as follows: “not as tenants in common and
6'2 deed, community property right survivorship.” The in addi- as a survivorship”. signed by grantor, right being tenants with tion to (follows following state- “The grantees: deed also contained endorsed as .the *10 ment, by by “The above grantees: approved signed accepted both and above deed is by Gran- approved ac- accepted Grantees; deed the intention to being and the ; Grantees being joint the with premises tees it the intention of tenants quire said as joint tenants as acquire premises survivorship, and com- these not as right the survivorship, as com- not and common.” right munity or tenants in property as munity property as common.” court tenants conveyance, the passing In on the commenting these statements In said:
court said: case, created the deed “In the instant [*]
these munity property. erty as have been realize statement that how intention defendant, ment * * * “ [*] appears twice either *» being signed they to take as it is more party them were And deed to tenants difficult clearly expressed or in view of could as acquiring joint property community the fact the both have tenants, could plaintiff deed, not see how the grantees, failed as specific one of prop- prop- state- com- and not tence Secs. tion where title is taken in the wife’s has There is in Nevada no property where In iff an estate as such court real knowingly and facts statutes which J¡í Nevada no 65-206, as by justified was held 65-401, conclusive the 65-302 tenants; however, joint grantees. This set cases intentionally accepted and wife took parallel N.M.S.A.1941 tenancy and was and the first sen- statutory presump- have finding that upon joint our been the tenancy. statutes, Nevada title trial Comp. name, found Collier, 1952, Again, in v. 73 Ariz. as Collier name of husband and wife 405, 537, 540, approved 242 P.2d court re- tenants in Nevada common. conveyance property peatedly was deeded support a that to transmutation joint tenancy by parties an in- community property separate property to both into reciting strument was to: proving the burden transmutation Zelpha Collier, upon party asserting separate “C. W. Collier Banta Grantees, erty, proof his wife as not tenants such transmutation as community in common not tenants as be clear, convincing. must certain and See estate, Fuller, 1945, 26, tenants with 63 159 Petition of Nev.
63 579; 1936, Estate, P.2d In re 56 Wilson’s go Arizona does Court so far as 353, 339; Stockgrowers say Nev. prima & to facie case is made out of in- Milisich, Rancher’s Bank of tent to take Reno the deed tenants 913; alone, Hill presumption community 283 P. Milisich v. nor is the Nev. such, house, 307; destroyed Nev. 228 P. Laws in the face of Ross, 1921, parties Nev. P. deed. In intent 467. that state the appear In the last court said: cited case the must be made before clearly to may'be nature of ownership “ * * * We believe that no other defeated. safe rule can be laid down than requires clear, con- Nevada certain and part money property or once a proof vincing to rebut presumed to remain bewill marriage com- after certain, clear, such until shown munity property. been proof, have trans- convincing of evi- Stripping aside the technicalities against muted into ”* * * force, spirit these dentiary of all of root creditors. *11 intent, rightly so. decisions is and Ulti- attempted every We have not to discover mately, the common if the dual estates of upon touching problem presented case together com- can exist and civil law here, nor have we tried to reconcile those patibly, be true amalgam must Yet, enough studied. believe we decisions preserve the parties. To intention of the drawing digested to-warrant the have been of marital virility indigenous form of our of certain conclusions. ownership we have declared in Chavez proof support to such case transmuta- California, repeatedly courts have be N.M. tion must 783] [56 declared that the “clear, convincing”, more strong and and ownership property destroyed is by pro- the evi- preponderance “mere than a in duction of a deed and from no desire retreat We have to dence”. itself, deed, prima such a constitutes a this declaration. parties case the intent of facie was least, appellant tenants—at in con uphold to take her this is To deed, any in the absence of the rule evidence to rule that we would have tention tenancy contrary, intent to the and was where no a form for made out on convincing”' attempt “clear, strong been made to defeat the inter- such and alone by say and claims of creditors such where one ests a con- further that even proof, and veyance. totally ignorant of the spouse fact was property in form, ever favor of the wife where deed in such but believed was community property, conveyed is to and property husband wife held as that, provides when a nevertheless, proof intention tenants. Sec. 65-401 conveys property com- written to a convert the instrument husband and so (cid:127)of wife to sepa- joint- married woman she takes title her munity an estate property into convey- more when by than rate and is had established been evidence”. ed to her her preponderance of the husband a “mere person another she as a tenant in com- takes This we cannot do. express- mon intention unless a different receiving before above written There ed the instrument. are no other opinion dissenting Chief Sadler’s Justice presumptions except in this statute those opinion our added to following purchasers good with reference faith conclusions up to clear statements some consideration, pur- for valuable and no such which believe are in such dissent we found chaser is involved in How the case. erroneous. confusing and dissenting author can find the all section, any presumption seems to overlook relating The dissent in this prop- important conveyances transmutation of factor in husband persons that there by beyond comprehension. which is married our wife is persons to must be an intention of the statute Sec. 164 The California in- and that make the transmutation with our is identical statute Sec. Civil Code evidence, proved be tention must cited the California case of 65-401. We supported by presumption which Siberell, supra, to show that even Siberell v. contrary. We evidence to the (cid:127)overcome California, gone where the courts have prove the intention hold the evidence beyond all other the courts of clear, convincing as do strong must transmutation allowing states Neva- Supreme Arizona and Courts of filed in divorce property, case it denied claims to have discovered da. The dissent statutory there were the wife that statutory presumption in favor of the .some in her presumptions favor because all marriage erty acquired during had been *12 right joint and tenants wife conveyed her her and husband deeds presumption such survivorship and that any pre- and denied that in 65-302, in 65—401 or Sec. be found Sec. Cali- sumptions found in Sec. 1941Annotated. New Mexico Statutes Code, 65-401, as our Civil same fornia purported to create applied deeds where two statutes study of these careful After upheld joint tenancy. Supreme Court presumption what- any to find (cid:127)we are unable passes upon discusses or question lower court’s under evidence decision even to them as transmutation though deeds from tenants, they held as a to nevertheless involved in our case. community. is difficult to see the reason for the opinion dissenting quote three para- many
We discussed Cali- have cited and graphs opinion from the Supreme cases, approve we fornia not because Court of Siberell, California in Siberell v. opinions, all the confusion such to show but supra, when that decision is absolutely brought extremely about liberal contrary to the conclusions and statements recognizing trans- allowing course in opinion. found in dissenting The first might mutation on evidence' that paragraph quoted by the dissent cites Cali- prepon- substantial, is a mere called upon by fornia cases relied the losing par- Texas, extreme derance. the other ty, the wife cases, in that case. Such cited transmutation, course allows no which we however, involve deeds made ago when, by followed until nine months which, statutory pre- wife under the Chavez, opinion Chavez v. unanimous in sumption in Sec. 164 California Civil we overruled our former decisions on the Code, presumption created the that husband decision, subject. as well as that This , took as in common tenants supra, goes Chavez neither to v. Chavez expressed conveyance otherwise but, nor the extreme of Texas California Siberell case deed to involved a believe, reasonable middle we follows husband and wife as tenants and the provides our own law and which course as court therefore said: we can no “But see will as to the sta avoid endless confusion reason indulge presump- whatsoever to persons. tus and title of of married tion here.” Cal. [214 1005] quotes The dissent from the Perhaps way dispel clearest Martioni, Stafford 192 Cal. P. confusion found in relating the dissent 'to 919. No two statutes dealing Arizona with the husband and wife there involved. The was right of survivorship conveyance there wife alone quote such statutes in full. The first court discussing own name and the passed statute is Sec. 39-110 merely under whether or not such a deed Code, Arizona Annotated and reads as fol- favor of wife found lows : Code, 164 of Cal.Civil the same 65-401, N.M.S.A.1941, persons was overcome “Where more (2) two jointly (1) joint evidence. That decision in hold one way no *13 party claiming hold that the a transmutation severance, and dies before owner tenancy from expressly vest does not or devise grant prove clearly must the mem- the intent of survivor, interest the estate bers of the such trans- shall to make dying of the owner the estate in mutation. remaining own- not survive heirs of descend to but shall ers does Likewise Sec. Nevada Statute his though joint owner deceased Comp.Laws Nevada authorize ascer- and been severed interest had tenants; husband and hold wife to tained.” also does the statute of from California copied. which our Sec. 65-401 was statute in years later the second fewA 71-122, It is Sec. was enacted. Arizona Tillian, August citation 51 N.M. fol- Code, provides as and 1939 Arizona gives in the dissent it no lows: support. Our decision in that case was upon in founded created grants “All and devises real 65-401 Sec. with reference husband persons (2) two or more erty made to holding and wife as tenants in common and in and not estates common create followed rule announced several tenancy, except grants or devises involving cases the same California statute to husband to executors or trust or and in common. Even the Cali- two grant A or devise to wife. and fornia refused to courts have follow however, may, persons (2) or more in- such rule words, express vest the estate in volved. Upon grantee the death of survivor
devisee.”
fully
statutory presump-
recognize
We
wife
65-
tions in favor of a
found
clear,
Any
reading
understandable
401, N.M.S.A.1941,
pre-
and
to reveal that
between
statutes fails
these
sumptions control until overcome
com-
they prohibit,
wife
curtail
refuse
create and
petent evidence we
presumption against taking
up
set
presumptions
in such Section
insert
holding property
right
passed
to find in the law as
we fail
which
survivorship.
statutes were both
These
Legislature, or which we fail to find
by the
Supreme
when the decisions
in effect
anywhere except
minor-
in existence
Arizona hereinabove cited
were
Court
opinion.
ity
recognize
such decisions all
rendered
attempts
apparent
that the dissent
right of the husband
take
'
totally ignore and eliminate the first
property as joint
hold
tenants but also to
phrase
65-401,
SADLER,
which is the
of said Sec.
Chief
(dissenting).
Justice
very
community prop-
foundation of our
opinion,
The prevailing
seizing upon a
erty system
the civil
and is taken from
dictum
Chavez,
announced in Chavez
*14
Spain
statutory
law of
and Mexico. After
393,
N.M.
781,
244 P.2d
seeks to
imbed
separate
definitions of what constitutes the
substantive,
in our
law with all the force of
separate
of the husband and the
stare
impresses
decisis in what
plain
me as a
pro-
of the wife
said Sec. 65-401
judicial
case
legislation.
of
Naturally,
property acquired
:
vides
“All
after writer was gratified at the court’s action
marriage
either husband or
or
in Chavez
Chavez,
v.
supra,
adopting
both,
community property;”
is
gen-
This
opinions
his dissenting
in McDonald Lam-
v.
of law
eral rule
declared by
Legisla-
bert,
43 N.M.
120 A.L.R.
ignored
ture cannot be
passing upon
250, and
Wilson,
Newton v.
53 N.M.
questions involving the status
as the basis for overruling
persons.
married
them in so far as such decisions denied the
power
spouses
any
deny
responsibility
We
fail-
for the
transmute community
into
opin-
of the author of the dissenting
ure
estate and vice versa.
But the writer’s
distinguish
“proof
between
beyond
ion
dissent in neither of those
cases, either
doubt”
required'
expressly
reasonable
which is
remotest im-
plication,
cases,
ever germinated
clear,
criminal
“proof
the thought
is
re-
sulting in this
strong and
dictum
convincing”
required
gratuitously put
which is
for-
Chavez,
ward in Chavez
types
several
of civil cases.
to-wit:
have
We
followed the decisions
Ari-
support
“Proof to
such transmutation
zona and Nevada but not even the Courts of
clear,
must be
strong and convincing;
gone
California have
to the extreme ad-
preponderance
mere
of the evidence
in the dissenting opinion.
vocated
will
suffice to effect it.”
N.M.
[56
393,
69
by
writing
sufficient
instrument
not be re
to the wife
support
butted,
finding
in and of itself
a
to
save in
single
instance
separate
is her
conveys
estate.
Mar
she
Stafford v.
so
to
received
tinoni,
See, also,
192
good
Cal.
221 P.
purchaser.
919.
My objection
faith
Goucher,
maintain,
Goucher
Cal.App.
majority position
v.
they
is that
Donze,
P.
Cal.App. contrary
and Donze v.
Supreme
holding
769, 264 P.
presumption is,
294. The
Court of
California in Stafford v. Martin
course,
except
oni,
rebuttable
supra,
presumption
under our
statutory
statute it becomes conclusive
support
in favor
a does not
finding
suffice to
good
purchaser
faith
Speak-
separate
from wife.
the property is
if
the wife’s
on
ing
subject
Supreme
accomplishes
Court of
a transmuta
California
Martinoni,
Stafford v.
said tion of
into
Cal.
221 P.
[192
already
estate.
Such
contention as
noted
925]:
above is contrary
California decisions
disputable
“The
presumption raised
and as
August
well
our own
decision
'by section 164 of the Civil Code is a
Tillian, supra.
v.
form of evidence
express
under
terms of
majority
section
seem to draw some com-
1957 of the Code of
Siberell,
Civil
It
Procedure.
fort from the case of
v.
may be
Siberell
controvert-
by
ed
just
other evidence,
why,
214 Cal.
1005.
indirect,
direct or
see,
but unless so
I am unable to
unless it be
controverted
because of
the court or
jury
holding
permissible
is bound
that it
find
to show
according to the
presumption.
proof
that Code
held under a deed
Civ.Proc.
1961-
§§
2061.
husband and wife
therefore
for the court or
jury
actually
intended
them to be
determine whether or not the
n
against
evidence
property.
disposition
my
There is no
sufficient to
part
challenge
proposition.
People
overthrow it.
Cer-
Milner,
171-179,
tainly,
Cal.
so much of the
833;
Siberell
P.
* * *
quoted,
now
Hitchcock
case
about to be
Rooney,
insofar as
171 Cal.
*16
285-289, 152
any
P. 913.”
(cid:127)has
bearing on this case can not aid the
majority position. The court said:
adopted
When we
the California statute
adopted
we
the construction theretofore
“It is true that under the recent hold-
given
byit
the highest court of that
ing
Mullan,
state.
case
in the
of Dunn v.
211
Estate,
In re Vigil’s
38
N.M.
34
1015],
Cal.
P.
A.L.R.
[77
667,
71 writing presumption is from the the that title conveyance, mere manner of thereby such separate her extent vested in her as is the giv- conclusive character en it property. legislature And if the undermined and an- nulled? presumption to such hus- Iiow can married woman and to her which band, never comes into person, -being to her and for want of the de- gree proof the presumption existence, essential to married its her, part conveyed woman court, takes the declared have conclusive as tenant in common character, unless different notwithstanding existence of expressed intention is in the instru- (conveyance the fact by written instrument ment, presumption in this sec- to a married which woman) legislature mentioned, tion is conclusive in favor presumption said shall create the ? Will purchaser of a in good encumbrancer majority please answer, they if can? faith and for valuable consideration.” majority opinion undertakes a questionable majority whether lengthy and extended review California practical realize effect of cases, from a few of which seems to nullify the holding is to strike down and gain However, small comfort. far presumption legislative mandate that greater number of the cited, California cases wife, attending a deed to the or to her and King King, Cal.App.2d 257, matter, another as for that con- shall be 912; Cummins, 236 P.2d Cummins v. purchaser. clusive in good favor faith Cal.App.2d 284; 46 P.2d Application If the effect of the deed is to transmute Co., Rauer’s Cal.App.2d Collection property into estate of Cox, 196 P.2d Cal. Cox conveys and she ac- App.2d 867, 187 P.2d and others not purchaser, to a quired good faith the re- enumerated, here only sup- afford no separ- buttable that was her port position majority whatever to the then becomes nei- ate estate conclusive and contrary uphold opposite view. she, husband, nor community ther cred- Indeed, the author the majority matter, prove itors for that other- finally lengthy summarizes the review says not, then, the statute. wise. So Is it actually agreeing California cases obvious perfectly the extent this jurisdiction (and cases from that it is from presumption weighted down with added him, get statute) against we our are there limitations, “imposed by conditions community property court”, and turns to other touching quantum proof nec- essary states, support failed find seeking to establish existence of fact he statutory presumption which assumes in California.
to(cid:127) “such, necessary 795], Ariz. Baldwin v. Arizona, [50
From the cases instance, acceptance the terms 791; as an Hen- Baldwin, 50 Ariz. *18 handwriting grantees, in the Henderson, P.2d thereof 121 58 Ariz. derson v. of that 'by the recorder Collier, or an endorsement Ariz. 437, and Collier v. request of cases, placed it was of record at the such are cited. Nevada spouse,” con- if the Fuller, P.2d deceased 26, 159 as Petition 63 Nev. of 353, veyed previously character community had 579; Estate, 56 Nev. In re Wilson’s purchased or funds. also cited. and others are Baldwin, supra. (Emphasis Baldwin has statute claimed that a not Arizona mine.) 65-401, conceding has Comp. creat- Even that such as our Arizona a ing presumptions deadly authorizing ma- statute husband wife so least, hold are jority position. real estate say To none is in there affecting New Nevada in Mexico no' statutes mentioned and as to the in so situation right sur- prevailing curtailing “There is as that the incident of states: Ariz.Ann.Code, estates, vivorship statutory presumption in Nevada no in such up name, 39-110, taken setting title is in the in the a wife’s or § against of tenants name the existence of the estate as their in course, presence 71-122, common.” Of supra. of § California, such a statute as that in creat- statute, 65-302, supra, the Under our § ing significant presumptions, its and such such spouses creating intention of the in Mexico, as ours here in New makes all has been estates themselves heretofore the difference in the world. ordinary a If standards. determinable employed language has deed in usual form joint tenancy is Apparently, the estate appropriate' to the creation of the estate upon with little favor in Arizona. looked it, spouses under heretofore hold Baldwin, supra. right Baldwin v. The sup- necessary they been that survivorship was abolished in estates plainly imports by language port what its expressly jointly, save where vested competency written affirmation some grant creating devise it. Ariz. understanding giving before declaration Ann.Code, Moreover, there is 39-110. § representing the true intention it effect presumption against crea- statutory ' parties. Ariz.Ann.Code, such estates. tion of § disposition growing perhaps There seems to be a statutes account These 71-122. pro- part deplore enough some it is there not on fact (cid:127)for increasing tendency spouses gressively grantees such a deed and receive ten- proof some extrinsic take title to real is to under it hold ancy. majority deepest writer has heard it asserted should be matter of past more than one within the spouses holding, occasion concern to lest all so year literally or more that are thou- there intention in es- the creation of such tenancy sands of these deeds in in tates be utterly defeated. County Maybe Bernalillo alone. So what? necessary Is to be hereafter way spouses grantee have creation of estates surely wished it. Such would be a fair wife, husband and if there be assumption. appro- and natural language If property, to insure they that what have done priate to the creation in life may be honored the death after employed in a conveying deed them, independent one proof apart wife, to husband and what it? from the language of the instrument under Obviously, it is matter of no concern which they hold, be furnished? Must the court, assuredly complete one of husband and to insure that every, it, indifference to member of how deed will honored, endorse on its back and wives husbands take to property title *19 sign and both this, . this, or in substance: acquired by spouses them. The are free
agents and contract with each other mentally “We competent are and have unmarried, except ifas to alter legal their read and understand this deed. It is Comp. relations. 1941 65-206. exactly, expresses § what we want and our bona fide wishes.” important, all then, It becomes the more Or, perchance, must the husband and wife self-imposed by do not that we conditions grantees proceed forthwith, following de- proof degree of validity, as to to essential joint livery of a tenancy, in deed their fav- applicable joint ten- only not to deeds in or, deposition ’ to take the of each other ancy to husbands and wives but as well' to preserve bene esse to de testimony the conveyance other forms of the in which each, against the contingency of either’s appears grantee, mag- wife’s name so death, affirming that what the language of nify the resting burden wife as a the plainly imports, the deed on its face con- survivor in as to force a forms to their wishes and actually repre- practical by spouses abandonment of use their sents true intention ? conveyance this taking form of in title to (cid:127) property. If, indeed, pertinent in the estates but a These are few the' in- tenancy plague husbands and wives are as quiries perplex which arise to' and suggested numerous as County in Bernalillo holding and wives husbands under deeds (cid:127) state, throughout matter, and tenancy, as for that in as an incident of to- ' then, today day’s- by law as declared this decision in case. But husbands preponderance” “mere the evidence. in such deeds grantees who are wives and And, conveyance Today’s likewise, uphold to he concerned. not alone are majority degree sweep. high The call for in its the same much broader holding proof, practically beyond reasonable court” in Chavez “imposed by the limitation doubt, Chavez, emphasized where title is in in taken supra, and further if ever the deadly or con- decision, today’s just as strikes sideration in the for had it character. statutory presumption blow at her, or to attending wife’s favor deeds accept closing, may In I here and now husband, her and her her responsibility promul- my equal share of for accomplish person, if effect is objectionable gating the dictum in case property into a transmutation of Chavez, supra. My Chavez v. concur- separate proof, or in the wife. drafted, opinion, -finally in rence accomplish evidence, before it can along found will be with of other “clear, transmutation, strong and must import members of court. The full ** preponderance convincing; a mere escaped me at the time it the dictum it.” N.M. not suffice to will effect [56 until I give not observed the effort to noted, already As 783] by standing reaffirming added in this court, legislature, what this study gave matter closer I case that said. objec- well convinced that the became language was unsound and without tionable Contrary entertain- the mistaken idea precedent, I support logic. reason my claim on majority, is no ed there early opportunity this to atone welcome holding part presumption of a that the signing' error my from a estate arises the wife Chavez erroneous dictum case her husband unnecessary it. It was to a decision Supreme tenancy. The decision absolutely place had no there. Siberell, Siberell Court of California why pre- inventory filed the case clearly supra, points quite out *20 of her surviving widow as administratrix operate in that event and sumption does not estate, not My objection husband’s she stated she was reasons. two stated for well opinion that the aware holding prevailing in- an abstract held an tenancy until type and of deeds that the kind is loan in connection with a company statutory presumption admittedly arises the surance her after property was returned to court, itself, “imposes” additional on the this opin- legal is death. is her husband’s legislature has said burden on what the widow, layman, state of of a the the requiring a ion proof more than enough, title, ability the very likely to locate ignorant one this criterion some un- at point community prop- charted distinction in merely law between between evidence that erty, “preponderates,” joint tenancy is cotenancy, cases, and the test in civil “proof beyond deemed a doubt”, sufficient estate in destroy to reasonable quantum called for 'between and wife in criminal the husband cases. Will majority please under which both do had held title to it for me? Of course, for years prior my three dissent to husband’s nowhere asserts there is death and joined had not mortgaging it as a “proof beyond distinction between a security for a loan. The trial court should “proof clear, reasonable doubt” and is permitted be pass upon question strong and convincing; preponder- a mere whether ance of transmutation of the property to evidence will not it.” effect separate estate in the place It does wife took with- state in majority substance imposing out on her the have set up burden of establish- practical test which “for all it, ing practical for all purposes, purposes” beyond require “proof will beyond a rea- a reasonable doubt, as held majority. sonable doubt”. majority pose
In requi- revised edition of test that majority opin- ion, quantum proof site written to accomplish take my dissent, notice of trans- mutation must is be “more said: pre- than a mere ponderance”. How much They more? do deny any “We responsibility for the say. Is it “much” or “little”? Tradi- dissenting failure of the author of the legal tional definitions of “pre- evidencethat distinguish 'proof between ponderates” and that which satisfies “be- beyond a reasonable doubt’ which is re- yond a reasonable doubt” are to be found quired cases, ‘proof in criminal challenge in the books but I majority clear, strong convincing’ which say with exactness when it is than “more required types in several of civil preponderance”, yet a mere “proof less than cases.” beyond a reasonable doubt”. The fact majority up set pre- have attempting thus to restate in the courts quotation “imposed by the test ceding they the test which themselves are unable to Chavez, indeed, supra, and, in Chavez v. court” here which define— indefinable— reaffirmed, majority they inability sought yet, my omit to characterize do significant part they ignorance, can give effect, us a material what not as degree proof required, the essential of the distinction between the traditional preponderance.” —viz., “more than a mere and criminal tests in civil cases. All I can speak patronizingly my They my say guess then in- is that as to what is “more *21 good as preponderance” than a mere
theirs! foregoing easily
It can be seen from my and those of the
observations that views
majority Accordingly, do not coincide.
I dissent.
RICHARDS
No. 5483.
Supreme Mexico. of New Court
Feb. 1953.
Rehearing March 1953. Denied notes decedent $500 company from said insurance tained outstanding his at death. unnecessary to Although it re-examine is property, to said together with a deed background of our length at historical petitioner herein your for which reason important system, proper- said impression that was of the principles keep in mind certain dominant estate of the ty entirely to the belonged system. community property said deceased Lowell Trimble Walter o'f the said Mexico, property which New petitioner as adminis- your undersigned marriage, spouse or either before owned tratrix.” bequest, gift, acquired thereafter descent property had been Title rents, profits devise, issue and gran- described the t>y which two deeds thereof, property. his or wife and were tees 65-304, Comp. 65-305, Secs. N.M.S.A.1941 tenancy, grant- form deeds. Their marriage “All after identical, provided: ing clauses were both, either com husband or * * munity 65-401, common, as tenants “Not amended, Comp., as Laws N.M.S.A.1941 them, survivor