(dissenting).
I am in accord with that portion of the majority opinion — though it is probably dicta — which holds that a probate homestead does not exist in favor of a nonresident. I dissent, however, from affirming the order denying the widow a homestead. This for the reason — as I shall attempt to show — that the matter was tried in the lower court as well as presented here upon a theory different from that on which it is now being determined. Our latest holding is that a case will not be reviewed on a theory different from that on which it was tried. Huish v. Lopez, 70 Ariz. 201, 218 P.2d 727.
The basis for this court’s decision is the “conflict of evidence rule, while the matter was actually tried upon the theory of “estoppel”. In proof of that let us look at the record. In the creditors’ (appellees’) brief this is made crystal clear, and we quote:
“ * * * then this Court is bound by the findings of the Washington Court to the effect that Charles E. Graham and Sadie R. Graham were residents of Kitsap County, Washington, at the time of the death of Charles E. Graham in this proceeding brought in the Superior Court of Maricopa County, Arizona, wherein the same issue of residence was attempted to be controverted by Sadie R. Graham.
“This conclusion is predicated upon the theory of estoppel. * * *" (Emphasis supplied.)
It seems obvious from the rulings of the trial court — as hereinafter referred to— that counsel for appellees succeeded in convincing the lower court that judicial estoppel applied. As no mention is made of estoppel in the majority opinion, I construe this as an implied admission upon their part that the order of the lower court cannot be sustained upon such a theory.
In a puerile effort to bolster its opinion the majority state that the widow “did not allege she was a resident of Arizona” in her petition for this probate homestead. While it is true that these specific words do-not appear in the petition, yet when she alleged therein “that Charles Edward Graham was a resident of Maricopa County,. Arizona, at the time of his death” its legal effect' was to allege that she was a resident of the state, for it is hornbook law that, except where a wife is living apart from husband, she has the same domicile as that of her husband. Section 27 of the Restatement of the Law, of Conflict of Laws..
The widow’s oral testimony to the effect that they were bona fide residents of Arizona stands unchallenged except for her verified petition in Washington which is set forth in the court’s opinion. Counsel for the widow repeatedly attempted to elicit from her the circumstances surrounding the-signing of this petition and whether the: *185statements appearing therein were true, viz.; that she and her husband at the time of his death were residents of the state of Washington. The court, imbued with the theory of judicial estoppel, each time sustained objections by opposing counsel upon the ground that the Washington records could not be impeached, the record being the best evidence. Had the trial court proceeded upon the theory that the admissions in the petition were not conclusive but only contradictory then the court’s rulings were grievously in error as the authorities are uniform that such written declarations may be contradicted and are always open to explanation. See, 10 Cal.Jur., Evidence, Sec. 321, page 1081 et seq.; 20 Am.Jur., Evidence, Sec. 630; Annotations appearing in 14 A.L.R. 75 and 90 A.L.R. 1409. As I read the majority opinion it is in effect admitted that this latter is the correct rule but the court holds the widow is not entitled to raise the point because her counsel has failed on appeal to assign these rulings as error. Had the case been tried on the theory upon which it is now being decided I would readily concede that this argument was sound. However, invoking this technicality under the circumstances here shown does not comport with my idea of justice. A statement from the Supreme Court of Oklahoma quoted in State v. Coursey, 71 Ariz. 227, 237, 225 P.2d 713, 719, seems apropos: “ ‘A technicality is a microbe which gets into the procedure of the law and gives justice the blind staggers.’ ”
The Probate Code, section 38-902, A.C.A. 1939, expressly provides for setting apart a homestead as to the surviving widow, either upon the court’s own motion or on petition. We have repeatedly held that the probate homestead statute is a remedial measure and should be liberally construed;; further that it is a most valuable right and the court has no discretion to deny a proper application by a widow for such a homestead, which incidentally is not limited as to value. See, in Re Moore’s Estate, 67 Ariz. 65, 190 P.2d 914.
Our statutes provide that on appeal “The Supreme Court may affirm, reverse, or modify any judgment or order appealed from, * * * or may direct that a new trial or other proceedings be had, as justice may require, * * (Emp. sup.)
Section 21-1832, A.C.A.1939.
Inasmuch, therefore, as I believe the case has been decided on a theory different from that on which it was tried in the lower court —and on which it was submitted to this court — I would set aside the order denying the widow a homestead and send the matter back to the trial court for a determination of the question of residence. As I see it this issue, as yet, has neither been tried nor determined. If in truth and in fact the widow and her deceased husband are found to be residents of the state of Washington her application should be denied, and on the other hand if they were bona fide residents of Arizona at the time of his death then her petition for a probate homestead should be granted.