(dissenting).
I dissent. The majority of this court have decided an issue of fact upon which there is conflicting evidence in holding that the property, the subject matter of this dispute, was owned as tenants in common by Marion Leslie Hatch and Marie Hatch Jones.
In order to understand the nature of this litigation certain facts should be emphasized. Marion Leslie Platch and Marie Hatch, husband and wife, entered'into a property separation agreement on October 30, 1951. On January 23, 1952, a divorce in favor of Marie- Hatch was granted and tbe separation agreement -was approved -by *11the court. On March 22, 1953, nearly a year and two months after the entry of the decree of divorce Marion Hatch died. Neither the separation agreement nor the decree of divorce specifically referred to the household furnishings of the parties located in what is called the “home place”.
This lawsuit is an action by the plaintiff Marie Hatch Jones alleging in effect that the household furnishings belonged to her and that they were converted by the defendant, executor under the last will and testament of Marion Hatch, deceased. The answer admitted that defendant took possession of the property and affirmatively alleged that the property was the community property of Marion Leslie Hatch and Marie Hatch, now Marie Hatch Jones. The case was tried to the court without a jury. The first issue necessary to be resolved by the court below as a predicate for the claimed conversion was the ownership of the property in question. The court below concluded as a matter of law independent of the oral testimony that under the first clause of the separation agreement providing: “Each party shall have his or her personal effects” the household furnishings in the home place belonged to plaintiff Marie Hatch Jones. It was the opinion of the court, that the words “personal effects” were sufficiently broad to include the household furnishings.
I concur with the majority opinion to the extent that the trial court erred in concluding that the words “personal effects” are. broad enough to include household furnishings. I cannot concur in the statement that:
“ * * * it is inescapable that such property subsequent to the decree of divorce and up to the date of the death of decedent was held as tenants in common by appellee and decedent.”
Plaintiff testified:
“Q. Now in your property settlement agreement the land was described but for the information of the Court, which place did you take? A. I took the Knot Inn.
“Q. That’s the Pinetop property? A. The Pinetop business place, the Knot Inn.
“Q. And Marion took the — A. The garage, Richfield station up on the hill and the Knotty Pine in McNary.
“Q. Including the apartment? A. And the furniture and apartment.
. “Q. And all the furniture ? A. That’s right.
“Q. And the furniture and fixtures and personal effects of the home, who took those? A. I took them. They were mine.”
And again she testified:
■ “Q.' Now one time, Mrs. Jones, prior to the death of Mr. Hatch, had you arranged, you and Mr. Hatch,'arranged to sell this property? A. , We were selling.the house and the furni-*12ture. I was to move to Phoenix and take the little boys and either rent or buy a place and move that furniture.” And again:
“And the sale fell through (of the home place) because they wanted the furniture and the furniture was not in the agreement. It was mine.”
The defendant did not cross-examine Mrs. Hatch on the statements that the furnishings were hers so that the record does not reflect an explanation as to how or whpn she acquired the ownership.
Mrs. Jones’ testimony was corroborated by the testimony of Frank Marquez:
“Q. What was said at that time, if anything, by Mr. Hatch with reference to who owned this furniture and the things in the house at this time? A. Nothing. Mr. Hatch, I know he wouldn’t tell a lie, and I won’t tell a lie here. I asked him for something inside the house to buy—
“Q. Were you buying some of his furniture at McNary? A. Yes, and he said, ‘Everything you bring from McNary is mine but everything inside the house is not mine; it belongs to Marie and the house belongs to the kids.’
“Q. That is when you were trying to buy some furniture from him? A. Yes.
“Q. And you did buy some from him? A. I bought some' from — -he gave it to me mostly but inside I was going to buy a couch and he said, ‘This is not mine, Frank. This belongs to Marie. You can talk to Marie about it.’ So I let it go.”
While the defendant alleged that the household furnishings and furniture was community property, his proof by Mrs. Irene Hays, sister of the deceased, Marion L. Hatch, contradicted his affirmative defense showing that the furnishings belonged to the two boys.
“Q. What did he (Marion Hatch) tell you? A. He said that the home had been put in a trust fund with the furnishings for the children, all but this one set of dishes, and he said that she is to take that but she took the silverware so she doesn’t get the dishes now.
“Q. He didn’t tell you then that it belonged to Marie ? A. No, he didn’t. He told me that she was to take the dishes; he had made that agreement with her. That she was to take the dishes.
“Q. Now then did you have any other conversation with him as to this property? Now I am referring to the furniture in that home place there. A. Only that the furnishings went to the little boys, all but the dishes.”
The conversations here related by Mrs. Hays and Frank Marquez were held at some time after the divorce. There are, of course, other facts and' circumstances *13which, coupled with the above stated tes tímony, might enable the trial judge to ascertain the true ownership of the property.
Now, Section 27-805, A.C.A.1939, provides in part that:
“any community property for which no provision is made in the decree shall be from the date of such decree, held by the parties as tenants in common, each possessed of an undivided one-half interest therein.”
While this statute establishes the character of community property undisposed of by the decree of divorce, it does not provide that such property shall be owned as tenants in common forever and, of course, does not forbid or otherwise contemplate that one of the tenants in common may not transfer his or her rights in the property to the other by gift or sale subsequent to the decree. Also, the statute only operates on community property. If in fact the property was not community property prior to the divorce either because of possible gift by husband to wife or by oral agreement prior to, contemporaneous with, or subsequent to the execution of the written agreement it would be the separate property of the plaintiff. As stated, no explanation was offered or requested as to the basis of Mrs. Jones’ statement that the furnishings were hers, but this court is not at liberty to disregard the direct, positive and unequivocal statement of ownership. The truth of such must be determined by the trial judge in accordance with the. rules of law governing the weight of evidence and credibility of witnesses. Similarly the testimony of Mrs. Hays as to the ownership of the property being in the two boys must be weighed and balanced against the other facts and circumstances in the case.
As pointed out the trial court determined ownership as a conclusion of law from the language used in the separation agreement. The cause should be remanded to the trial court for such ^further proceedings as are necessary to a complete determination of the questions of fact presented.
“Although the reviewing court may, in cases where the evidence is not conflicting, or the facts are admitted or conceded, possess power to render final judgment, or direct judgment to be entered in favor of one of the parties, generally it may be said that it cannot, in reversing a judgment, direct judgment to be entered for one of the parties, where there are disputed questions of fact, or where the evidence upon any material issue is conflicting and reasonable minds might disagree.” 3 Am.Jur. 708.
This is the accepted practice everywhere as it is in Arizona. Maricopa County Municipal Water Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 367, 7 P.2d 254.
Supplemental Opinion on Rehearing
Our original opinion in this case is hereby affirmed in tqto, but for the purpose *14of • clarification we are supplementing it with the following: We intended therein to hold that the furniture, fixtures and furnishings, utilities and utensils located at the “home place” ordinarily classified as household furnishings were held by Marie Hatch Jones, appellant, and Marion Leslie Hatch as tenants in common subsequent to the date of the decree of court divorcing them. We held that household furniture, •fixtures and furnishings did not fall within the category of “personal effects”, reversing the holding of the trial court to that effect.
We did not intend to make any disposition of the “personal effects” belonging to appellant. The contract involved in this litigation provided that she was entitled to her “personal effects”. We were of the view that we could presume that all articles falling in .the category of “personal effects” belonging to Mrs. Jones would be delivered to her, such as luggage, wearing apparel, jewelry, all kinds of bric-a-brac collected over the years, handmade bed spreads or crocheted tablecloths, etc., albums, pictures and all other items of personal property having a more or less intimate relation with her person^ • In our opinion we defined “personal effects” as meaning:
' “Personal property having a more or less -intimate relation with the person of the possessor .such as wearing i apparel, j'ewelry, or other items of • property of like character.”
The trial court should order items of this character delivered to appellant.
LA PRADE, C. J., UDALL and WINDES, JJ., concur.