(dissenting) — I dissent, being of the opinion that in all respects the judgment of the trial court should be affirmed. Having read the entire record, I will, before expressing my views, make a statement of material facts and issues which I gather therefrom.
In May, 1890, the plaintiff Nancy E. Clark, formerly Nancy E. Lemon, and George N. Clark, now deceased, were intermarried in the state of Oregon. Prior to their marriage, the plaintiff was a widow, the mother of several children by a former husband, and owned real estate in the state of Oregon. George N. Clark, prior to said marriage, was a widower, father of several children by a former wife, and owned real estate in Oregon, and real estate, horses, cattle, and other property in Washington. His Washington land, to which he held the fee simple title, consisted of 480 acres in Whitman county, 160 thereof being mortgaged for $700. He then had a contract with the Northern Pacific Railroad Company for the purchase of an adjoining tract, the north half of section 25, in township 19, north of range 41, east W. M., in Whitman county. On this contract he had made one small payment, the amount of which has not been shown. Immediately prior to their marriage, Nancy E. Lemon and George N. Clark executed the written agreement set forth in *120the majority opinion. Within a few days after their marriage, the plaintiff and her husband proceeded to Whitman county, at first making their home in Oakesdale, but shortly thereafter they settled on the Whitman county land, not more than 80 acres of which was then in cultivation. They continued to reside on this land, improving and cultivating it, until about the year 1899, when they moved to Spokane, where they lived until the death of George N. Clark which occurred on April 17, 1910. There was no issue of their marriage. While they lived together as husband and wife, payments were completed on the north half of section twenty-five in Whitman county, and on October 19, 1897, the same was conveyed to George N. Clark by warranty deed. During their residence in Whitman county and in Spokane, George N. Clark acquired title to a number of Spokane city lots, some of them improved. He also acquired title to a certain tract of improved real estate in Spokane, which he and plaintiff occupied as their home until the date of his death. This property is still occupied by plaintiff. While living in Spokane, George N. Clark sold the Oregon land which he owned prior to his marriage, and with a portion of the proceeds of that sale, purchased real estate in the city of Spokane, which he later traded for a tract of land in Spokane county, known and designated in the record as the Cheney farm. This farm was purchased subject to a mortgage lien for about $900. During their residence in Spokane, the plaintiff, Nancy E. Clark, sold her Oregon land which she owned prior to her marriage, and invested the proceeds of that sale in an improved lot in Union Park, an addition to the city of Spokane. This place has a rental value of about $12.50 per month, and is conceded to be plaintiff’s separate property.
George N. Clark died testate, having executed a nonintervention will about six weeks prior to his death. His estate was adjudged solvent and is being administered by the defendants, Marion Baker and George Henry Clark, whom he named as executors. The only mention of Nancy E. Clark in *121this will is quoted in the majority opinion. All of the decedent’s property was devised to the children and grandchildren of himself and his first wife. The executors took possession, and assumed the exclusive management, of the entire estate, (except the homestead) including all property real or personal, whether acquired before or after marriage, claiming the same to be the separate property of the deceased, and insisting that the plaintiff had no community or other interest therein. Although the plaintiff still occupies the home, and, since the death of her husband has filed a declaration of homestead thereon, the executors insist that it also was the decedent’s separate property, deny her right to a homestead therein, and only concede the Union Park property to her as her separate estate. In other words, they insist that all the property, with the exception of the Union Park place, was the separate property of George N. Clark; that the widow has no interest therein, and that it has all been devised to the legatees named in the will.
After making written demand for an allowance of her claim, and a recognition of her rights, the plaintiff commenced this action against the executors and legatees, to have her rights ascertained and adjudicated, claiming her community interest in and to all property of the estate acquired subsequent to the marriage. The defendants denied that she held any title or interest, legal or equitable, in or to any of the property, real or personal, save and except the Union Park place, and alleged that all property acquired after the marriage was either purchased with proceeds of sales of the stock and its increase which the decedent owned prior to his marriage, or with the proceeds of crops and rentals from the Whitman county land, and that all of the property thus acquired was the separate property of George N. Clark at the date of his death. Trial was had upon these issues. The evidence, which is conflicting, is presented in a record of such interminable length that it cannot be well quoted, analyzed, and discussed in an opinion of moderate length. The trial judge held *122that a considerable portion of the property to which George N. Clark held record title at the date of his death, was the community property of himself and wife. Some contention was made, in the pleadings and during the trial, to the effect that the antenuptial contract was ambiguous. Upon this question, the trial judge announced his conclusion in the following language:
“I think this contract is not ambiguous; I think it sets forth the intention of the parties with sufficient clearness to determine what they meant to do. They first dispose of all property that they owned at that time, and then this last clause provides for the property that will be acquired in the future, and it provides that all property to be acquired by the mutual endeavor of both parties, over and above what is required for their support, shall be the joint property of both parties in equal parts. Now, I do not think they intended by that agreement to set aside the property that each had at that time and do nothing with it, but their intention was that that property might be used, and that whatever they acquired after that time should be the joint property of the two of them; that is to say, whatever remained after the money had been expended necessary for their support. It seems to me that is the only reasonable construction that can be put on this contract.”
After making this announcement and hearing the evidence, he in substance found, that all incomes of the plaintiff and decedent from every source were placed in a common fund; that all their funds were commingled, no accounts being kept; that it was their intention to equally own all property acquired after marriage; that one payment only, the amount of .which was not shown, had been made by the decedent prior to his marriage, on the north half of section twenty-five, in Whitman county; that all other payments were made from funds belonging equally to the plaintiff and the decedent; that the north half of section twenty-five thus became joint, common, and community property; that the community paid $2,400 upon separate debts of the decedent; that there was no evidence of the extent of the income, if any, from the de*123cedent’s separate property in the state of Oregon; that the Cheney farm was purchased with the separate funds of the deceased; that the $900 mortgage on the Cheney farm was paid with community funds; that specified real property, described in the findings, consisting of a number of improved and unimproved lots in the city of Spokane, and the north half of section twenty-five in Whitman county, was acquired after marriage in conformity with the antenuptial contract and became community property; that the plaintiff was the owner of an undivided half interest in all personal property; that all the property in which plaintiff owns an undivided half interest was acquired after marriage, by the mutual efforts and labor of the husband and wife over and above what was necessary for their support; that the trial judge did not undertake to fix the character, or amount of the personal property; that he declined to consider the amount of rents received subsequent to the date of the husband’s death, and that he also. declined to consider in this action plaintiff’s homestead rights.
A decree was entered in accordance with these findings, which adjudged plaintiff’s interest in the community property, protected her right to a further accounting from the executors, awarded costs to be paid from the decedent’s estate, but declined to pass upon the validity of the homestead declaration, or require an accounting in this action. After entry of the decree, plaintiff filed a supplemental petition to compel an accounting. Upon defendants’ motion, this pleading was stricken, reserving, however, plaintiff’s right to a future accounting. Plaintiff filed her cost bill more than ten days after entry of the decree. Upon defendants’ motion it was stricken, and only a portion of the costs claimed were taxed by the clerk of the court.
It seems to me that this statement, which I feel is justified by the record, substantially disposes of the defendants’ appeal. I do not assert that I have stated in detail all final orders made by the decree. It is unnecessary to do so. The *124controlling issues were (1) whether there was any community property, (2) if so, what portion of the estate was community property, and (3) what charges, if any, should be allowed to the widow against the decedent’s separate estate and his portion- of the community property, for disbursements of community funds which had been made for the benefit of the decedent’s separate estate — such, for instance, as disbursements to discharge liens on his separate property. Findings were made in substance as above stated, covering all of these issues, and I conclude there was ample evidence to sustain each and every finding thus made. In my opinion, the antenuptial contract was properly construed by the trial judge. It was the undoubted intention of the parties thereto that all property acquired after marriage and not necessary for their support should become their joint or community property. The preponderance of the evidence sustains a finding that such was the mutual intention of the plaintiff and the decedent. On numerous occasions the testator so expressed himself, and his actions were at all times in harmony with that construction. The widow is about seventy years of age. Her husband was somewhat older. The estate is large, valuable, and free from debt. There is no suggestion that differences, want of harmony, or lack of mutual affection ever existed between the plaintiff and her husband. On the contrary, they were at all times devoted and affectionate, one to the other. It seems preposterous that the testator intended to disinherit her, or that he could have understood that he was leaving her in a position of practical penury, compelling her to rely upon her Union Park property for support,' its rental value being only about $12.50 per month. It would rather seem that, when executing his will, he considered that her separate property, coupled with her interest in a large amount of community property which he could not devise, would afford her ample support. True the will mentions her separate property and its increase as her means of support. It does not appear that there ever was any increase in her separate prop*125erty; but whatever the decedent’s view may have been when making his will, I am satisfied that there was a large amount of community property, as found by the trial court, one-half of which was not subject to a testamentary disposition by the decedent. Under the evidence, and the antenuptial contract, which I think was properly construed by the trial court, I conclude that the property acquired after marriage, save and except the Cheney farm and the Union Park place, was community property.
In the absence of controverting evidence, and independent of any contract, the presumption of law is that property acquired after marriage is community and not separate property. This prima facie presumption may be rebutted by competent evidence. Weymouth v. Sawtelle, 14 Wash. 32, 44 Pac. 109; United States Fidelity & Guaranty Co. v. Lee, 58 Wash. 16, 107 Pac. 870. Such evidence, however, must amount to clear and convincing proof that the consideration paid for the property in question came from the. grantee’s separate estate. In the instant case, I am unable to find such proof. The preponderance of the evidence shows that plaintiff and the decedent kept but one fund; that all receipts after their marriage were commingled; and that neither separation nor segregation thereof was made. This being true, such commingling, coupled with the prima facie presumption of the law above mentioned, I regard as sufficient, in the light of the antenuptial contract, to establish the community character of the property which the trial court has found to be community property.
The plaintiff on her appeal insists, (1) that the trial judge should have decreed the validity of her homestead declaration; (2) that he should not have stricken her supplemental complaint, but should have required an accounting in this action; (3) that he should have allowed her $1,200 as a claim against the estate of the decedent for one-half of the $2,400 of disbursements above mentioned, which were made in payment of debts her husband contracted prior to his marriage, *126and which disbursements she claims were made from the common funds of the community estate; (4) that the trial judge should have decreed the Cheney farm to be community property ; and (5) that he erred in striking her cost bill. The final decree of the trial court, if permitted to stand, would protect the plaintiff’s right to have the validity of her homestead declaration adjudged in some future action or proceeding. It would also protect her right to a future accounting by the executors and legatees. There is not sufficient evidence in the record to enable this court to finally pass upon these issues in a trial de novo, and as plaintiff’s rights in these regards would have been protected by the decree of the trial judge, his' orders should not be disturbed.
The conflicting evidence disclosed by the record will account for the marked discrepancy between the findings of the majority and those which I would make. In my opinion, this evidence preponderates in favor of the findings and conclusions of the trial judge, which should not be disturbed. He saw the witnesses, heard them testify, and was in a much better position to pass upon their credibility and the weight of this evidence than are the members of an appellate court. For twenty years plaintiff and her husband lived harmoniously. In that time they acquired a large amount of property in addition to the testator’s separate estate. The evidence convinces me, as it convinced the trial judge, that much of this increment was community property, and that it was so regarded by the testator and his wife. With due respect for the views of the majority, I cannot escape the conviction that a decree adjudging all such property to have been the testator’s separate estate deprives the widow of her legal and equitable rights, and I most earnestly interpose my protest against the entry of any such decree upon the record now before us. My conclusion is that the pleadings and evidence sustain all orders made; that the record is free from prejudicial error; and that in all respects the judgment should be affirmed.
Parker, J., concurs with Crow, C. J.