Harrison, J., concurring.—The wife’s interest in the community property upon the death of the husband has many incidents similar to those of an heir, but I do not think that, under the language and spirit of the laws of this state, she can be said to be his heir to her share of that property, or that her interest therein comes to her by virtue of a “ succession” to the property of her husband. The property that is acquired by the labor of the wife during the marriage, equally with that acquired by the labor of the husband, becomes community property; and, although section 172 of the Civil Code gives to the husband the management and control of the community property—that acquired by her labor as well as that acquired by his—yet by the terms of the same section he cannot give away, or convey without valuable consideration, any portion of this property, unless she gives her written consent thereto. While a voluntary or fraudulent conveyance is binding upon his heirs, and, in the absence Of creditors, cannot be questioned by the administrator of his estate, yet he cannot by such act deprive the wife of her share of the community property. Only one-half of the community property is subject to the testamentary disposition of the husband, and, if the bonds of their marriage are dissolved by a judicial decree which makes no mention of the property, the wife becomes the absolute owner of one-half thereof, as cotenant with the husband. (De Godey v. Godey, 39 Cal. 157.) It was said in this case: “ The theory upon which the right of [398]the wife is founded is that the common property was-acquired by the joint efforts of the husband and wife, and should be divided between them if the marriage tie is dissolved either by the death of the husband or by the decree of the court. Her mere right in the community property is as well defined and ascertained in contemplation of law, even during the marriage, as is that of the husband. It is true that the law confers upon the latter the authority to manage and control it during the existence of the marriage, and the power to sell it for the benefit of the community," but not, as we have seen, so as to defraud the community of it. In the case at bar, then, the right of the respondent to a share of the property in question, if it be proven to be community property, is clear. It accrued to her as having been acquired in part by her own efforts before the decree of divorce was rendered. That decree as rendered did not deprive her of it.” Although this interest of the wife in the community property may not fall within the common-law definition of an “ estate,” it is not to be classed as a “ mere possibility” like the expectancy of an heir. It is true that in Van Maren v. Johnson, 15 Cal. 311, it was, by way of illustration, termed a “ mere expectancy,” and this illustration was again used in Packard v. Arellanes, 17 Cal. 525; but, as was said in De Godey v. Godey, supra: “ While, perhaps, no other technical designation would so nearly define its character, it is at the same time an interest so vested in her as that the husband cannot deprive her of it by his will, nor voluntarily alienate it for the mere purpose of divesting her of her claims to it.” That her interest in the community property is more than a mere possibility is also shown by section 167 of the Civil Code, by which the community property is exempt from liability from the contracts of the wife made after marriage, but it is not exempted by the code from liability for her contracts made before marriage.
It is a misapplication of terms to say that the property which the wife has “ acquired ” during the [399]marriage by her skill or labor, and. of which her husband had not in his lifetime any power of voluntary conveyance, except with her consent, or of testamentary disposition, is inherited from him; and to refer her rights in the community property to “ succession,” under the language of section 1383 of the Civil Code, begs the entire question. “ Succession,” by the terms of that section, can be applied only to a case where the property succeeded to belonged to the decedent, whereas the entire provisions of the Civil Code are at variance with treating the husband as the owner of the community property. If he were the owner he would have the absolute dominion over it, with the right to use it or dispose of it according to his pleasure (Civ. Code, sec. 679); but, as above seen, these attributes of ownership are denied him. Section 682 of the Civil Code specifies the community interest of husband and wife as one species of property which is owned by several persons. The necessary implication therefrom is that the husband and the wife are the “ several persons” in whom is vested this ownership of the community property. This ownership is not absolute in either, but in each of them is qualified by reason of its being shared with the other. (Civ. Code, sec. 680.)
This interest of the surviving wife in the community property, instead of being adverse to the administrator of the estate of her husband, is subordinate thereto for all purposes of administration, and is subject to the supervision and control of the court in which the administration is pending. By section 1452 of the Code of Civil Procedure, the executor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate during the administration, and section 1402 of the Civil Code declares: “In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration.” Theller v. Such, 57 Cal. 447, and kin[400]dred cases have, therefore, no application, as the property involved in those cases was held not to be subject to the administration, or to the debts of the decedent. The husband has the sole management and control of the community property in his lifetime, and alone can render that property chargeable with debts. Upon his death the entire community property, as well as his separate property, is subject to the control of the court for the purposes of administration of his estate, and is taken into the possession and management of his administrator for these purposes, and at the close of the administration the wife receives at the hand of the court, in the same manner and at the same time as does the heir, her share of the community property—the one-half of the surplus after paying the debts and expenses of administration. She receives it, however, not as the heir of her husband, but in her own right as her half of the property which was acquired by herself and her husband during the marriage, but freed from all restrictions in its use and enjoyment, and with the same title as if the marriage had been dissolved by a decree of divorce. As the court which had control of the administration and of the community property for that purpose is also authorized to determine what charges, debts, and expenses are to be paid out of this property, and the amount thereof, it must follow that the judgment of that court determining the amount of the property which she is entitled to receive at the close of the administration is binding upon her, and may also be invoked by her as a determination of her right to the same. Whether this be called a decree of distribution, or a judgment or order fixing the amount or extent of her interest in the estate, and her right to receive the same from the administrator, is immaterial. It is the final determination of the court upon a subject within its jurisdiction, and is as binding upon her as if she had been specifically named in section 1666 of the Code of Civil Procedure. If a court has jurisdiction to take the management and control of property, and
Upon the other questions discussed by Mr. Justice Temple in his opinion I concur with him, and I also concur in the judgment.
Garoutte, J., concurred.