May 12, 1938

The arguments in support of this contention seem to be that whereas under section 2175, Revised Code of Arizona (1928), community property is liable for community debts contracted by the husband, and moreover, under section 985 of said code the community estate passes charged with the debts against it, and as contestant has not shown such debts do not exist, the interest of the contestee did not pass to her on the death of her husband; (2) that under the community property law the management and control of the estate was vested in her husband and she did not succeed to such management and control of her share until his death, therefore she could not dispose of it or otherwise exercise the rights of a proprietor; (3) that the estate had not been probated and the land has not been partitioned between herself and the children and therefore she is but a tenant in common and owns no exclusive right to any specific

acreage.

In the case of Thomas H. B. Glaspie, 53 I. D. 577, the Department had occasion to determine the qualifications of Glaspie to make homestead entry, who during coverture had acquired and who held at the time of entry fee title to 240.10 acres of land in Arizona. The applicable statutes of Arizona relating to community property as construed by the Supreme Court of Arizona and the Supreme Court of the United States were set forth and discussed and it was held in conformity with the views of the courts that the wife of the entryman at the moment of acquisition of title by the husband of the 240.10 acres became invested by operation of law with a half interest therein, and that the entryman was not, therefore, disqualified to make homestead entry. The quotations from the authorities cited in that decision made it clear that in Arizona as in the State of Washington the law makes no distinction between husband and wife in respect to the right each has in the community property; that it gives the husband no higher or better title than it gives the wife and recognizes a marital community wherein both are equal, equal in respect not only to the title and interest in the common property but also in the income therefrom. The fact that section 2175 of State code makes the community property liable to community debts, in the absence of any showing that such debts had become a lien or charge against the property either by a voluntary incumbrance or as a result of legal proceedings by the creditor, would not seem to affect the title of either spouse to the community property. The application and entries here in question were made while the husband was living and not after he was dead. It is a settled rule that the validity of entry must be determined as of the time it is made. While under section 955 of the code of Arizona a conveyance of community property to be valid must be executed by both husband and wife, nothing appears

showing that the community property could not have been sold and a valid legal title given by the execution of a joint deed by husband and wife at the times the entrywoman applied for and obtained entry of the land in question. There could not have been any community debts of the husband chargeable against the estate of the husband before he died.

Upon the dissolution of the community by the death of the husband the property passed without probate proceedings or other legal actionone-half to the widow and the other half to the children of the marriage. Molina v. Ramirez, 15 Ariz. 249, 138 Pac. 17. The entrywoman's disqualification to make entry by reason of ownership of one-half of the community property consequently existed at the date notice of contest was served on her, so that there is no room for the argument that the cause of invalidity was removed before such date. The fact that section 985 of the Code of Arizona subjects the community property upon the death of either one of the spouses to community debts does not warrant the conclusion that the title of the surviving spouse is any way divested or qualified as to the one-half interest which passed to her. There is no presumption that the community owes debts. See Husband and Wife, Sec. 1374, and cases cited, 31 C. J. 216. The contestee did not offer any evidence that there were such debts, but merely suggested the possibility of their existence. There is no basis in the evidence for the Commissioner's statement that apparently there are such debts.

The contestee, however, contends that under the doctrine of DeWolf v. Moore, 34 L. D. 330, it was incumbent upon the contestant to prove that there were not any debts, and if there were that they did not consume the value of the estate.

De Wolf v. Moore was a case of contest against a homestead entry based upon a charge that the entrywoman was disqualified to make entry by reason of being the owner of 160 acres of land. The question to be determined in that case was whether entrywoman, who had acquired title to 1222 acres in Iowa as her share of her husband's estate, owned also in her own right an interest in 320 acres of land which, contestant alleged, entrywoman's husband died seized of in California but upon which there had been no administration and no partition. The Department held that the evidence was insufficient to show that defendant's husband ever had acquired title to the land in California, and further held, even if his ownership were proven, there was cast upon the contestant the burden of proving that the defendant took a beneficial interest in the California land, that is, something more than the legal title thereto that might, so far as disclosed by the record therein, be wholly defeated by the assertion of claims against her husband's estate having priority over defendant.

May 12, 1938

This case, however, was opened for further testimony and upon its reconsideration by the Department (Heirs of DeWolf v. Moore, 37 L. D. 110), the Department said:

The evidence is amply sufficient now to demonstrate that defendant's husband, at the time of his death, was possessed of 320 acres of land in California free from incumbrance of any sort, and that under his will she took an undivided one-third interest in this property; the extent of her interest under the will would be exactly the same as it would have been under the Civil Code of California had he died intestate-an undivided one-third in fee.

Defendant has never asserted her claim to this land nor has there been any effort, by partition suit or otherwise, to assign any exact portion of the whole to her individually. Nevertheless the fact remains that immediately upon her husband's death, she became vested in fee simple with an interest amounting to onethird of the acreage of decedent's estate in California.

The interest, to be sure, is a tenancy in common with other heirs of the decedent, but she is severally seized of her share which at any time can be reduced to a delimited portion of the whole tract or conveyed to another person. It is such an interest in land as might, under the provisions of section 2260 of the Revised Statutes, disqualify the owner and occupant from entering land under the preemption law. See Richard v. Ward, 9 L. D. 605.

It was further held in that case:

That in estimating the acreage of an entryman's proprietorship in real estate, within the meaning of the 5th section of the act of March 3, 1891 (26 Stat., 1097), he shall be charged with that proportion of the total acreage of a tract owned by him in common with others which is represented by the fractional extent of his undivided interest. No other rule can well obtain until, of course, there has been partition of the estate.

The conclusion reached was that defendant in addition to 12212 acres in Iowa owned one-third of 325 acres in California and was therefore disqualified to make homestead entry.

It seems very clear upon second consideration of the case by the Department that evidence that the entryman acquired title to more than 160 acres was regarded as sufficient without proof by contestant that there were no debts of the estate that might consume the beneficial interest in the estate.

Where a contestant establishes that contestee was disqualified as a homestead entryman by reason of the ownership of more than 160 acres of land acquired by devise or from one whose estate has not been partitioned or probated, to impose upon the contestant the burden of further proving that there is no possibility of the proof of debts against the estate to which the land might be subject is an onerous requirement and unnecessary to establish prima facie the entryman's disqualifications. The existence of such debts should be peculiarly within the knowledge of contestee, and if they are such that affect the title and estate of the contestee, the burden should be on the contestee to allege and prove them.

The fact that under the community property law of Arizona the husband is the statutory agent to manage and control the property does not, in the opinion of the Department, affect the character of the interest of the wife as an owner of the community property. The word "proprietor" as employed in section 2289, Revised Statutes, as amended by the act of March 3, 1891, means "owner." Alfred R. Thomas, 46 L. D. 290. In the case of Poe v. Seaborn, 282 U. S. 101, 112, 113, the Supreme Court, in discussing the power of management and control of the community property by the husband conferred by the laws of Washington, said:

The reasons for conferring such sweeping powers of management on the husband are not far to seek. Public policy demands that in all ordinary circumstances, litigation between wife and husband during the life of the community should be discouraged. Law-suits between them would tend to subvert the marital relation. The same policy dictates that third parties who deal with the husband respecting community property shall be assured that the wife shall not be permitted to nullify his transactions. The powers of partners, or of trustees of a spendthrift trust, furnish apt analogies.

The obligations of the husband as agent of the community are no less real because the policy of the State limits the wife's right to call him to account in a court. Power is not synonymous with right. Nor is obligation coterminous with legal remedy. The law's investiture of the husband with broad powers, by no means negatives the wife's present interest as a co-owner.

We are of opinion that under the law of Washington the entire property and income of the community can no more be said to be that of the husband, than it could rightly be termed that of the wife.

The contestee relies in part on the definition of the word "owning" in McHarry v. Stewart, 9 L. D. 344, 348, and the word "own" in Charles E. Burgess et al., 48 L. D. 270, as importing an absolute and not an undivided or qualified interest in land. The word "owning” formed a part of the language used in section 2289, Revised Statutes, prescribing a basis for adjoining farm entry and the word "own" with the word "occupy" was used in section 5 of the stock-raising homestead act as prescribing a basis for an additional entry under the section. The definitions of these words in the cases last cited resulted from the consideration of the object and purpose of that part of the statute in which they were employed, and are not regarded as pertinent in the instant case.

From what has been set forth above it seems clear that an applicant for an original homestead entry under section 2289, Revised Statutes, as amended by the act of March 3, 1891, who at the date of such application is invested by operation of the community property law with a one-half undivided interest in a tract of land in Arizona of more than 320 acres is a proprietor of more than 160 acres within the meaning of said act and is therefore disqualified from making such entry; and that disqualification is not removed by the mere fact that the community is dissolved by the death of applicant's co-owner.

May 12, 1938

It appears from the evidence that contestee introduced an unrecorded deed of her interest in the property executed the day before the hearing and conveying the property to her daughter. Whether this deed represented a bona fide sale or whether the contestee had power to convey is no moment in the present case, the transfer came too late to affect the existing disqualification.

Defendant raised the question of invalidity of the contest and disqualification of the contestant to acquire title to the land on the ground that he had shown no qualification to acquire the land under Rules 1 and 2 of Practice. Contestant states in his contest affidavit that he claims "an interest in or desire and intent, if permitted to do so, to acquire title to said land under the act of June 28, 1934," the usual averments on the regular form of contest affidavit showing qualifications to enter the land being stricken out. As to this question the Commissioner held that contestant's qualifications were immaterial in view of the disqualifications of the entrywoman. The Government is a party to every contest and the invalidity of the entry being shown it must be canceled. Rule 1 of Practice permits contest "for any sufficient cause affecting the legality or validity of the claim not shown by the records of the Land Department." It is not inconceivable that contestant through the exercise of rights granted under section 7 of the Taylor Grazing Act may be qualified to acquire title to the land under some applicable public land law. Therefore no sufficient ground exists for dismissing the contest. The question whether contestant may exercise a preference right is not properly before the Department until it is attempted to be exercised.

A great amount of testimony was taken, and there is considerable discussion in the briefs as to the other issues raised by the charges. It is sufficient here to state that accepting the testimony of contestee as true as to the character, extent and value of the stockraising improvements and as to the character and period of her residence on the land to the exclusion of a home elsewhere, both improvements and residence appear insufficient to meet the requirements of the homestead law. Whether the circumstances are such that the defaults may be excused and further time allowed to perfect the entry need not be decided as the entries in question were invalid at the time they were made by reason of entrywoman's ownership of more than 160 acres of land.

It, however, should be said that from the evidence averments to the contrary are not deemed to have been made falsely and with fraudulent intent but rather arose from ignorance and misapprehension of the law as to what constituted ownership of land.

In accordance with the views above expresseed the decision of the Commissioner is affirmed.

Affirmed.