¶1(dissenting).
¶2If the majority correctly uphold the trial court’s finding that plaintiff’s interest in Coca Cola Company was his separate estate (and in my view they do), it is difficult for me to understand how, in good reason, they can strike down for lack of substantial support in the evidence the finding that his interest in Campbell Dairy and Ice Cream Company is likewise property of the same character, namely, separate estate.
¶3Indeed, to my mind the majority opinion presents an anomaly in this, that some of the same items of evidence, or considerations stressed through lack of it, employed arguendo in support of a finding of separate character as to the Coca-Cola Company interest, seem to be given a contrary significance for purpose of overturning the like finding of separate character to plaintiff’s interest in the Campbell Dairy and Ice Cream Company. In each instance it was the same presumption of community character that had to be overcome and, as to each, some of the same items of evidence were available to supply inferences supporting or in derogation of the finding.
¶4In the case of the Coca-Cola Company interest (now represented by plaintiff’s interest in the Kerley note) inferences in derogation of the finding were disregarded and deemed inconclusive and the finding is sustained. This was in accord with the prevailing rule applicable on appeal. Marchbanks v. McCullough, 47 N.M. 13, 132 P.2d 426; Sands v. Sands, 48 N.M. 458, 152 P.2d 399; Brown v. Cobb, 53 N.M. 169, 204 P.2d 264. An application of the same rule to the finding challenged as defendant’s second point on the cross-appeal, to wit, the finding of separate character to plaintiff’s interest in Campbell Dairy and Ice Cream Company, dictates a like ruling sustaining this finding.
¶5Both the father and son testified positively to a gift from the father to the son of the latter’s interest in Clovis Beer Company which he exchanged for his interest in the Dairy and Ice Cream Company. Some of the same facts and considerations, cited in the majority opinion in sustaining the finding as to the Coca-Cola interest apply with equal aptness to support for the trial court’s undoubted holding of a gift by the father to plaintiff of his interest in Clovis Beer Company.
¶6The conclusion annnounced arose in my mind on a first study of the prevailing opinion after giving an unusual amount of time to consideration of the massive record and extensive briefs filed. It grew progressively stronger throughout my work on the case and still abides. It compels me to disagree with the opinion submitted for the reason stated above.
¶7The majority ruling otherwise, I dissent.