Packard v. Arellanes

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.

The only question we propose to consider in this case is, whether upon the dissolution of a marriage by the death of the wife, one-half of the common property is subject to administration under the provisions of the act regulating the settlement of the estates of deceased persons. Section fifty-two of that act provides generally for the granting of administration of the estates of all persons dying intestate ; and section one hundred and ninety-four requires the administrator to take possession of all the property, real and personal, belonging to the estate. The solution of this question depends upon the construction to be given to certain provisions of the Act of April, 1850, defining the rights of husband and wife. The second section of this act declares what shall be common property; and section nine gives to the husband the entire control and management of such property, with the like absolute power of disposition as of his own separate estate. The eleventh section is as follows: “ Upon the dissolution of the community by the death of either husband or wife, one-half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased. If there be no descendants of the deceased husband or wdfe,- the whole shall go to the survivor, subject to such payment.”

Various difficulties suggest themselves in the construction of the eleventh section of this act. In Panaud v. Jones (1 Cal. 488) Mr. Justice Bennett remarked in reference to this section, that it was manifestly a deviation from the civil and Spanish law, unless the words “ debts of the deceased ” could be construed as including all debts .of the community contracted for the common benefit, whether by the deceased or by the survivor. “ If this construction may be put upon it,” said he, “ then it is consistent with the civil and Spanish law; and what is more, is consistent with reason and justice.” These suggestions were not called for by any question [537]involved in that case; but our opinion is that the view intimated as to the meaning of the words referred to, was based upon a correct interpretation of the intention of the Legislature, and we therefore adopt it as a just and reasonable construction of the section in this respect. Our whole system by which the rights of property between husband and wife are regulated and determined, is borrowed from the civil and Spanish law, and we must look to these sources for the reasons which induced its adoption, and the rules and principles which govern its operation and effect. The relation of husband and wife is regarded by the civil law as a species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of its debts. “ The law,” says Schmidt, in his work on the civil law of Spain and Mexico, “ recognizes a partnership between the husband and wife as to the property acquired during marriage.” The same doctrine is laid down by many other writers, and such seems to be the universal understanding of the nature of the marital relation in matters of property as viewed by the civil law. It is the well settled rule of that law that the debts of the partnership have priority of claim to satisfaction out of the community estate. (Jones v. Jones, 15 Tex. 143, and authorities there cited.) Whether this rule prevails to its full extent under our statute it is unnecessary to determine, but it is certain that the Legislature intended to establish a similar relationship as to ¡iroperty to that existing in the civil law. The contracting of debts is one of the incidents of that relationship, and it would be unreasonable to suppose that the intention was to do away with so important a principle as that of the liability of the community property for their payment. We think that for all purposes connected with the administration of such property, the debts of the community are to be regarded, not as the mere private and individual debts of the husband, but as obligations involving the liability of each of the members of the community. It may become a question to what extent the property held in common can be subjected after the death of the wife to the payment of the separate debts of the husband, but this question is not before us, and it is unnecessary to express any opinion in regard to it. In Van Maren v. Johnson (15 Cal. 308) we held that the common property was lia