c\ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ^_^ «»?>"-*■ ^ A TREATISE -R ?, ti ON THE PROPERTY RIGHTS OF HUSBAND AND WIFE, UNDER THE COMMUNITY OR GANANCIAL SYSTEM. ADAPTED TO THK STATUTES AND DECISIONS OF LOUISIANA, TEXAS CALIFORNIA, NEVADA, WASHINGTON, IDAHO, ARIZONA AND NEW MEXICO BY RICHARD A. BALLINGER, A. B. JUDGE OF THE SUPERIOR COURT, STATE OF WASHINGTON, BANCROFT-WHITNEY CO. LAW PUBLISHERS AND LAW-BOOKSELLERS SEATTLE AND SAN FRANCISCO.. 1895. Copyrighted, iSg^. BY RICHARD A. BALIJNGER. LOWMAN & HANPORD STATIONERY AND PRINTING CO. PRINTERS AND BINDERS. SEATTLE, - WASHINGTON. J^ PREFACE. The subject considered in this work has never been treated with any view to a thorough and exhaustive presentation of the principles upon wdiicli it is founded, or the enun- ciation of the courts tliereon. The system being an out- growth of customs and laws entireh'' foreign, and to some extent antagonistic to common law principles, necessarily fills the mind of one cultured under English jurispru- dence with many doubts and perplexities. The commu- nity system of property rights as existing in the States of the Union, has seemed to me to be of sufficient im- portance to merit a separate treatise thereon. The present work, therefore, has been undertaken with a view of removing, so far as is in my power, such uncertainties as shroud the primitive principles underlying this system, and with the further purpose of giving to the profession a harmonious and succinct statement of the doctrines applicable to the community system existing in the several States. There has, also, been present throughout its prep- aration a desire to make this work a safe and intelligent guide to lead the practitioner and the courts into a clear and full understanding of the real import of this system of property rights, to the ultimate end that its principles may be crystallized into a perfect and clearly defined branch of our jurisprudence. The want of absolute symmetry in the several codes upon this subject has prevented me from presenting in this work a logical and systematic discussion of the sub- 667097 IV PREFACE. ject as an entirety, but it is considered that the present arrangement will be of most service to the profession. Apologetically, I desire to say that the matter herein presented is the result of such labors as could be given to the subject amid the duties appertaining to my office and, consequently, I am cognizant of many imperfections and omissions, which I beg may be received with indul- gent consideration. I have considered it my duty to present my own views where they differ from those of the courts, but, at the same time, I am fully aware of my own fallibility and that the views of eminent jurists should not be lightly ignored or departed from. In no sense do I desire that my criticisms shall derogate from the authority and re- S23ect due to the able judges who have expounded the law upon tlie subjects herein discussed. It would be pre- sumptuous on my part to expect that every proposition stated in this work will be found to be correct, but my aim has been to make no positive statements of the law unless clear that they are sound in principle. I take this opportunity to gratefully acknowledge my obligations to my friends for valuable assistance rendered in the preparation of this work, and particularly to Judge C. H. Hanford and ex-Chief Justice Roger S. Greene, whose kindly criticisms have been of marked benefit. I also desire to express my obligations to W. R. Bell, Esq., of the Seattle bar, for valuable assistance in this work. The reward sought for my self-imposed labors will be that they may be productive of benefit to a profession which is the noblest among men. RICHARD A. BALLINGER. Port Townsend, Washington, January 1, 1895. TABLE OF^ CONTENTS. CHAPTER I. HISTORICAL SKETCH OF COMMUNITY PROPERTY, FOREIGN AND DOMESTIC. 8 I § 2 §3 §4 § 5 §6 Origin of Community System. Dotal System. In Holland — The Communio Bonorum. The French Communit}' . Spanish Community or Ganancial System. The American vSvstem — Origin of. 'e>^ CHAPTER n. WHAT PROPERTY IS IN COMMUNITY — DEFINITIONS AND CHARACTERISTICS. § 7. Eegal and Conventional Community. § 8. In California and Other States. § 9. The Statutory Community. § 10. Dower and Courtesy Abolished. §11. Theory of the Community System and Its Character- istics. § 12. Applies Equally to Residents and Non-Residents. § 13. Statutory Definitions. § 14. Marriage Must be Legal. §§ i5~i6. The Community as a Partnership. § 17. The Community as an Entity. § 18. Definititions and Characteristics. § 19. All Gains and Acquests Belong to the Community. § 20. Money and Negotiable Paper. § 21. Rents and Profits of Separate Property — When Cqpi- munity. §§ 22-23. Rule in California as to Rents and Profits of Wife's Separate Property. VI TABLE OP CONTENTS. § 24. Modifications of Spanish Law. § 25. Public I^ands — Acquisition of — When Community. § 26. Rule in California. §§ 27-28, In Texas. § 29. Policy of the Law and Tests to Be Applied. § 30. Rule Deduced. § 31. Rule in Washington. § 32. Interests of Spouses in Community Property. § 33. Husband's Control of Community Assets. §34. Nature of Wife's Interest. § 35- Contingent in California. § 36. Interests Equal in Texas. § 37. Wife's Interest in Washington Vested. § 38. Conveyance to Either or Both Spouses — Effect of. § 39. Presumption Resulting Therefrom. § 40. Effect of Conveyance to Wife. § 41. Effect of Conveyance to Both Spouses. § 42. Contributions of the Spouses in Labor, Etc. § 43. Duty of Spouses to Contribute. § 44. Confusion of Separate With Community Property — Effect of. § 45. Confusion of Separate Money and Profits — Rule When Willful. Burden of Proof When Property Claimed to Be Separate. Change of Domicile — Effect of. 46 47 CHAPTER III. SEPARATE PROPERTY OF THE MEMBERS OF THE COMMUNITY. § 48. General Considerations. § 49 § 50 §51 § 52 § 53 § 54 § 55 §56 § 57 §58 Emancipation of Wife. Under the Spanish and Mexican Law. Under the Statutes. The Dotal System in Louisiana. Distinguishing Characteristics of Separate Property. Property Acquired Before Marriage. Personal Property Acquired Before Marriage. Acquisitions by Gratuitous Title After Marriage. Gifts — Separate Property. Transactions Between Husband and Wife — Gifts, Etc. TABLE OF CONTENTS. Vll § 59. Husband May Give His Interest in Separate or Com- munity Property to the Wife Directly. § 60. Property Transferred by Husband by Way of Gift Be- comes Part of Wife's Separate Estate. § 61. Gift to Wife Must Be Made in Good Faith and While Solvent. § 62. Purchase by Husband, Title Taken in Wife's Name. § 63. Parol Evidence Admissable to Rebut Presumption. § 64. Acquisitions of Property During Coverture With Sepa- rate Funds — Effect of. § 65. Rule in I^ouisiana. § 66, Separate Property — How Traced. § 67. Burden Upon Wife to Prove Purchase With Separate Funds. § 68. Effect of Confusing Separate and Community Property. § 69. Registration of Separate Property. § 70. Object of Filing Inventory. §§ 71-72. Registration in Washington. § 73. Married Women as Public Merchants — Sole Traders' Acts. CHAPTER IV. RIGHTS, INTERESTS AND POWERS OF THE SPOUSES IN COM- MUNITY. § 74. Rights and Interests of the Spouses Generally. § 75. Separate Interests Not Alienable. § 76. Rights and Interests of the Wife. § 77. Wife's Interest Mere Expectancy in California. § 78. Wife's Interest in Texas and Washington. § 79. Powers of Administration and Management — How and by Whom Exercised. § 80. Wife Cannot Dispose of Community Property. §81. lyimitation on Husband's Power of Disposition. § 82. Rule in California and Washington. § 83. Maladministration by Husband — Redress for. § 84. Husband Cannot Alienate Community Property in Fraud of Wife. §85. Remedies of Wife. §§ 86-87. Rule in California. Vlll TABLE OF CONTENTS. § 88. Administration by Wife — When Authorized — Aban- ment. §§ 89-90. Rule in Texas. § 91. Wife Must Obtain Divorce and Division of Property in Some States. § 92. Powers of Alienation and Disposition — By Whom and How Exercised. § 93. Husband's Power of Alienation When Title Taken in Wife's Name. § 94. Husband Has Absolute Right of Disposition — Where. § 95. Power of Alienation in Washington. § 96. Husband's Power to Create Encumbrances. § 97. lycases. § 98, Husband Cannot Convey Community Realty. § 99. Transfers Between Spouses — Donations, Exchanges, Etc. § ICO. Transactions Between Spouses in Washington. § 10 1. Rights of Purchasers and Doctrine of Estoppel. § 102. In Cases of Desertion. § 103. Effect of Presumptions. § 104. Rights of Purchasers in California. § 105. Recitals in Deeds — Effect of. § 106. Estoppel of Wife. § 107. Rights of Purchasers in Texas. § 108. Deeds Cannot Be Varied by Parol Evidence. § 109. Rule Based Upon What Theory. §§ iio-iii. Bona Fide Purchasers. §§ 1 1 2-1 13. Doctrine of Estoppel in Washington. CHAPTER V. RIGHTS OF CREDITORS AND LIABILITIES OF THE COMMUNITY. §§ 1 14- 115. Statutes Contrasted. § 116. How and by Whom the Community May be Bound. § 117. Husband Has Unlimited Power to Bind Community for Debts. § 118. What are Community Debts. § 119. Judicial Definitions. § 120. What Property I^iable for Community Debts — Gen- eral Considerations. TABLE OF CONTENTS. ' IX §121. Several Interests Not Liable During Coverture. § 122. ComnuHiity Debts Have Priority. § 123. All Property Held by Husband and Wife Presumed Liable for Community Debts. § 124. Separate Property of Wife Not Liable for Community Debts. § 125. Fruits and Revenues of Separate Property. § 126. The Wife as a Public Merchant — Obligations of — When Community Property Liable for. § 127. When Separate Property of Wife and its Profits Mingled — All Treated as Community. § 128. Rights of Wife and Creditors Where She Claims Prop- erty as Separate. § 129. Rule When Property is Purchased Partlj' with Com- munity and Partly with Separate Funds. § 130. Resulting Trust in Favor of Wife. §131. Rule in Louisiana. § 132. Liability of the Community for Ante-Nuptial Debts of Spouses. § 133. Community Liable for Private Debts of Hushand During Coverture. §§ 134-135. In Texas Community Liable for Private Debts of Spouses Contracted Before Marriage. § 136. Liability of Community for Necessaries. § 137. Rule in Texas. § 138. Rule in California and Other States. § 139. Rule in Cases of Abandonment. § 140. Wife's Separate Property Liable Only for Necessaries Purchased by Her. §141. Reimbursement of the Community for Community Funds Used for the Separate Benefit of the Spouses. §§ 142-143. Rule in Louisiana. §§ 144-145. Spouses as Creditors of the Community — Reim- bursement for Advancements. § 146. Rights of Creditors and Spouses in Washington. § 147. Community Realty Not Liable for Private Debts of Spouses. § 148. Real Property Liable for Community Debts Only. § 149. All Debts Contracted by Husband During Coverture Prima Facie Community. X TABLE OF CONTENTS. §§ 150-151. What are Community Debts. § 152. Earnings of Wife. §153. Voluntary Assignment for Benefit of Creditors by Husband. § 154. Gifts Between Spouses — Fraud on Creditors. § 155. Transfers Between Spouses Not Fraudulent per se as to Creditors. § 156. Transfers from Husband to Wife Valid Between the Parties. §157. In Making Transfer Husband Must Act in Good Faith. § 158. Transfers Between Spouses Valid in Washington if Not in Fraud of Creditors. CHAPTER VI. RUIZES OP EVIDENCE AND PRACTICE REIvATlVE TO COMMUNITY PROPERTY. PART I. PRESUMPTIONS AND EVIDENCE. § 159. Presumptions as to Acquisitions. § 160. Presumption May be Rebutted. §161. History of Presumptions as to Acquisitions. §§ 162-163. Force, P^ffect and Application of Presumptions Regarding Community Property. § 164. How Such Presumptions May be Overthrown — Bur- den of Proof — Degree and Kind of Proof Necessary. § 165. Proof Necessary to Rebut Presumption. § 166. Rule in Louisiana and California. § 167. Nature of Proof Demanded. § 168. Preponderance of Evidence Sufficient. § 169. Parol Evidence Admissible. § 170. How Far Circumstances will Control Presumptions. § 171. Proof Necessary to Establish in Wife Separate Estate by Donations from Husband. § 172. Presumption when Deed Taken in Wife's Name. § 173. Recitals in Deeds — Effect of. § 174. Rule in Texas. TABLE OF CONTENTS. XI PART II. PLEADINGS AND PRACTICE. § 175. General Considerations. § 176. Parties to Actions Involving Community Rights or Liabilities. § 177. When Wife an Improper Party. § 178. What Property Subject to Joint Judgments. § 179. Joint Obligations of the Spouses. § 180. In Actions for Damages. §181. In Actions for Personal Injuries, Etc. § 182. When Wife May Sue. § 183. When Wife May Maintain Suit Against Husband. § 184. Other Instances when Wife May Sue. § 185. Parties to Actions Relating to Community Property in Washington. § 186. In Other States. §§ 187-188. In Washington — Theory that Wife is Neither a Necessary Nor Proper Party. § 189. Theory that Wife is a Proper Party. § 190. Theory that Wife is a Necessary Party. §§ 191-192-193. Rule of Merger. CHAPTER VII. DISSOLUTION AND DISTRIBUTION OF COMMUNITY PROPERTY ON DIVORCE AND LEGAL SEPARATION. § 194. Distribution on Divorce — Statutes. § 195. Statutory Provisions in Texas and California. § 196. In Washington and Nevada. § 197. Remedies Pending Separation Proceedings. §§ 198-199. Power of Court Over Community and Separate Property of Spouses. § 200. Court May Place Entire Property in Hands of Trustee. §§ 201-202. Division of Community Property. §§ 203-204-205. Proceedings Incident to Dissolution. § 206. Rule in California. § 207. In Nevada and Washington. § 208. Proceedings Subsequent to D'ssolutiou Xll TABLE OF CONTENTS.. §§ 209-210. Division of Community Property After Divorce. §§ 21 1-2 1 2-2 1 3. Pleadings. §§ 214-215. Maintenance and Alimony. § 216. Separation of Propertj^ of Spouses in Louisiana. • CHAPTER VIII. DESCENT AND DISTRIBUTION. §217. General Considerations. § 218. Common I^aw Abolished. § 219. Analogous to Surviving Partner. §220. InL,ouisiana Dissolution — Effect of — Rights, Powers and Interests. § 221. Presumptions Relating to Community Estates on Dis- solution. §§ 222-223. Distribution, Interests and Powers of the Spouses. §§ 224-225-226. Creditors and Community Debts. § 227. Renunciation by Wife and Heirs. § 228. In Texas. Descent and Distribution — Rights and Interests of Spouses and Heirs. § 229. Community Honle^tead — Descent and Distribution of. §§ 230-231. Survivor's Rights — Powers and Duties of. §§ 232-233. Survivor Qualifying Under the Statute. § 234. Testamentary Disposition. §§ 235-236-237-238-239. In California. Rights and Inter- ests of Survivor and Heirs. §§ 240-241. Testamentary Disposition. § 242. Homestead. § 243. In Washington. Descent and Distribution — Rights and Powers. § 244. Interests Upon Dissolution. § 245. Order of Descent. § 246. Who May Inherit. § 247. Debts and Charges § 248. Liability of Separate, After Exhausting Community Property. §§249-250. Necessity for Administration. §251. Testamentary Disposition. § 252 § 253 § 254 § 255 § 256 § 257 §258 § 259 § 26o § 261 § 262 TABLE OF CONTENTS. XIU CHAPTER IX. CONSTRUCTION OF COMMUNITY STATUTES. Origin and Nature of. Common Law Superseded. Construction of. Rule as to L,aws Adopted from Foreign Sources. Construction in Louisiana. Construction in Texas. Construction in California. Construction in Washington and Other States. Rights of the Community' Construed Liberally — Separate Rights Strictly. Territorial Limitations of Community Laws. Domicile — Change of APPENDIX. COMMUNITY PROPERTY LAWS OF LOUISIANA, TEXAS, CALIFORNIA, NEVADA, WASHINGTON, IDAHO, ARIZONA, SPAIN AND MEXICO. TABLE OF CASES. INDEX. B A LUNGER ON COMMUNITY PROPERTY. COMMUNITY PROPERTY CHAPTER I. HISTOKICAI, SKETCH OF COMMLINITY PROrEHTY, KOKEIGN AMD DOMESTIC. if. I. Origin of Community System. ^ 2. Dotal System. 'if> 3. In Holland — The Communio Rononim. 'i 4. The French Communit)-. ■ji 5. Spanish Conimunit}' or Ganaucial System. ^ 6. The American Sy.steui — Origin of. v^ 1 . Origin of Community System. — The matter proposed to be discussed in this volume is so radically at variance with the principles of the coninjt)n law, and so utterly devoid of analogies with that system of jurisprudence, that it is deemed im})ortant to outline to the jn'ofession a brief historical sketch of the origin and growth of that property I'elation between husband and wito known as the community system. From what has just been said, it is apparent that we need not look to the English law to lind the source from which the "coniniunity " sprang, and for the further reason, as will be presently discovered, that its existence, as a part, of the lex scripta, antedates the written laws of England. By the common law, as stated by Black.stone, "The husband and wife are one person in law; that is, the very being or legal existence of the wt»man is susi)ended during the marriage, or 3 § 1 f!Alijn'{;f;r on community propkpity. [chap. i. at least is incorporated and consolidated into that of the lius- band, under whose wing, protection and cover she i)erfonns everything."' These disabiUties, inii)Osed upon the wife, had for tlieir ob- ject the protection of the husband, the baron ov lord, in tlie rights acquired by the njarriage, and tlie ])rotection of the wife against the marital relation being made use of as a means of undue influence upon her action." The only property relation of liusband and wife existing under the common law which in any wise a[)proaches that of the community, may be said to be teiumcy by entirety. This was an estate dependent u])on the marriage relation for its creation and continuance. It was not, however, created solelv by this relation; it resulted in cases of gift to husband and \vife, or purchase made by the husband, the conveyance for which was taken in their joint names. Jt was not a legal con- sequence of the marriage contract, nor did it operate to invest the spouses with a moiety of the acquests and gains of the marital relation. It was, however, of rare occurrence and in many other respects fails to furnish features analogous to the community system. A marked distinction exists between the civil and common law in respect of the civil rights and ca]>acities of the husband and wife. The civil law does not recognize in the sjiouses that union of persons, by which the riglits of the wife were incorporated and consolidated, during coverture, with those of her husband. It does not, therefore, subject her to tljose civil disabilities, whicli must have resulted from that union. On the contrary, it regards the husband and wife as distinct persons, with separate I'ights and capable of holding distinct and separate estates." The same characteristics were likewise observed by the laws of Athens, which seem to have placed the wife upon a still more independent status as to lier property rights.'' ^ I Cooley's Blk. p. 401-2. •■ i Burge Com. 202 and 263. ^ I Cooley's Blk. p. 442, note 23. " Herrick's Attic Law, 44. 4 CHAT. J.] (iKKaX Ol' COMMLNITY SYSTKiM. § 1 ft is perhaps natural in view of tliese distinctions, to con- sider the coin m unity sN'steni as havini;- liad its origin in, or as being an outgrowth of, the Roman civil law, especially since if is interwoven chiefly with the jurisprudence of Ro- manic nations and their colonies. An investigation of the Roman, as well as the Attic law fails, however, to reveal any traces of relationship which would suggest the existence among the Romans or th(> (rreeks of a, marital [lartnership of acquests and gains.' ' See I BurgeCom. 263, who says, "The coniiiiioiio bononini, which is to be found in so many sA'stems of jurisprudence, might have been part of the Roman law at an earlier period of its history, but it had, long before the compilation of the Digest, fallen into disuse. The parties might by their nuptial contract, adopt it, but it had then ceased to be a provision of the law. The peculiarities of the civil law in these respects may be re- ferred to the disuse into which the formal rights of marriage, per con- farreationeni et coeiiiptionein, had fallen. Marriages celebrated accord- ing to those rites gave the husband and the wife a communit}" of inter- est in the property of each other." "By the marv\a.ii,e pri' cocmptiovein the husband was considered to have purchased his wife. She cea.sed to be under the parental power, and be- came subject to the power of her husband. .\11 her property- belonged to him, and she .succeeded to it on his death," Judge Johnson, in his translation of the In.stitutes of Aso and Manuel, at note 43, page 60, as found in ist White's Recopilacion, of the origin of ganancias or community prop- erty, says, "The establishment of the right of ganancias would seem to be one of the few institutions for the suggestion of which Spain was not indebted to Roman jurispru- dence, although this declaration is not supported by the unanimous as- sent of the writers, for by some it is stated that among the ancient Ro- mans, so far back as the time of Romulus and Numa Pompilius, all propert}' acquired during marriage was common or ganancial ; but be that as it may. no mention, as far as the research of the translator en- ables him to .speak, and it is believed his assertion will be found to be cor- rect, is made of the gaiiancialies as between husband and wife in the laws of the Partidas. It would ap- pear that custom gave rise to the establishment in Spain of this right, and that the first recognition with which it was honored by the lex script a was the notice taken of it by Iv. 17 tit. 2 Lib. 4 Del Fuero Juzgo, and the rule was adopted and ex- tended by the Fiiero Viejo, Fuero Real, Ordenamiento Real and the Recopilacion." vSee also i Burge Com. 418. Porter, Justice, in Cole's Widow v. His Executors (7 Mart. N. S. 41). said : " The doctrine of the commu- nity of acquests and gains was un- known to the Roman law', and 6 § 1 BALLINGER ON COMMUNITY PROPKRTY. [cHAI>. 1 Tlie civil law, as we have seen, tbiiued a more natural basis upon which to engraft the doctrines of a marital partnership, than English jurisprudence, mainly because the former sys- tem recognized the separate identity of the spouses, while the very being or legal existen(re of the wife was lost under the latter. The community system is believed to have had its origin in Spain, but from Teutonic sources; which is somewhat sin- gular, considering the fact that 8})ain was so long a Roman province, and one of the last to succumb to Gothic invasion.' Before the middle of tlie fifth century the kingdom of the Visigoths had become the mightiest of Western pAiroj^e. It had driven the Vandals into Africa, and coo|)ed uj) the earlier invaders, the Suevi, in the mountains of Asturias and Gal- licia. Ft had al)Sorbed the last fragment of independent Ro- man Gaul and Auvergne. It ap[)ea]'ed at one time to itspire to be the successor of Roman prestige in Europe, but the Saracens ultimateh' dissipated all such possibilities. "As long as the Visigoths themselves were satisfied with the rude customs of their ancestors, they indulged their suV)- jects of Aquitain and Spain in the enjoyment of tlie Roman laws. Their gradual improvement in arts, in policy, and at length in religion, encouraged them to imitate, and to super- sede, these foreign institutions; and to compose a code of civil and criminal jurisprudence for tlie use of" a great and united people."' From the councils of Toledo, in the seventh century, grew up the Gothic code, the Forum Jiidicum, "The first law book in W'hich the Roman and Germanic law was attempted to be harmonized into a svstematic whole," and indeed the most ancient code of Teutonic origin. It was, however, at variance although now couimon, we believe, a very early period of their history to the greater number of European the wife took, by positive law, one- nations, its origin cannot be satis- third of all the gains made during factorily traced. The best opinion coverture." appears to be that it took its rise ' See note i, supra. with the Germans, among whom at " i Gibbons Rome, 1040. 6 CHAP. I.] ORIGIN OF COMMUNITY SVSTKM. § 1 with the Koinaii law in respect of the [)roperty riglits of hus- band and wife. A community of right in tlie marital gains appears to liave been recognize*! among the customs of the Visigoths, and whether this custom extended to other tribes of tlie Germanic race cannot be definitely asserted, but it would seem, from similar establishments in France and Hol- land, that tliese customs were not confined to the Visigoths, though Tacitus fails to mention them in his History of the Germans. These customs, silently aiul imperceptibly, acquired a place in the usages of Spain, and became amalgamated with the Roman law. Fhey first made their appearance in the lex sc7'ipta in the Forum Judicum, which is more generally known by the title ''Del Fuero Juzgo."' Accordingly under the later development of the civil law in Spain, recognizing that the industry and care of the wife contributed equally with the husband to the production of gains, a marital partnership was recognized in the acquisi- tions accruing during coverture." The Fuero Juzgo became the general law of Spain and superseded all prior systems by which Romans or Goths had been })reviously governed, and notwithstanding the changes attending various revolutions this Visigothic code retains its influence to-day, and still governs wherever the Spanish civil law has found a lodgment. The Roman law, however, formed the basis of all the modern codes of Continental Europe, but the Visigoths pro- hibited under certain penalties the use of the Roman laws, as will be seen by reference to the Fuero Juzgo (ley 8 tit. 1, lib. 2), and manifested an antipathy towards their introduc- tion in Spain, although, notwithstanding this apparent anti- ' Schmidt's I_,aws of Spain and part of the ^^w^ra/ /aec of Spain ; it Mexico, p. 28. prevailed in certain provinces of the - See 2 Kent's Com. Note p. 184. kingdom and not in others. The community of acquests and Morales v. Morigney, 14 An. 855. gains does not seem to have been 7 § 2 BALLINGER ON COMMUNITY PKOPERTY. [CHAP. I. pathy exhibited by the Goths to the Roman hiw, it furnished for them the basis for their civil code.' The development of the community doctrine was not con- fined to Spain alone. Tt seems to have been introduced into Holland and Northern France, either by the Spaniards or by the Goths, thence crossed the English Channel and infected the laws of Scotland; from France it passed into Lower Canada; it existed also in British Guiana, the Cape of Good Hope and Ceylon. In all these countries it will be found that essential differences exist from tlie community of acquests and gains prevailing in Spanish territory. After briefly outlining the characteristics of the ''Dotal System," as existing under the civil law of Rome, a summary will be given of tlie characteristics of the community sys- tems prevailing in Holland, France and Spain, believing that a knowledge of these various systems of the commu- nity, as placed in contrast witli that of the ganancial, treated in this work, will serve to bring out more forcibly and in a more favorable light the Spanisli and American community ^ systems. The author here desires to acknowledge a free use of Mr. Burge's valuable work on Colonial and Foreign Laws, and from the fact that the same has been for many years out of print, and but few copies are extant, liberal quotations have been taken therefrom, where they are deemed of special value. § 2. Dotal System. — The effect of marriage, under the civil law, as found in the Digest, was that the wife brought her dos, the husband his antidos into the marriage. In all other property belonging to them, they each retained the rights of owners in their separate capacities uncontrolled ■ by their relation of husband and wife. By the marriage, as we have seen, the husband was considered to have purchased his wife; she passed from the parental power under the ' Panaud V. Jones, i Cal. 501; 1 White's Recopilacion, Introduction, p. 9. 8 CHAJ'. I.] D(JTAL SYSTEM. § 2 donniiion of tlje husband. All her [troperty belonged to him, and she succeeded to it on his death. This was under the marriage rite known as per coemptionem. Tlu; marriage per usum did not alter the status of the feniale nor subject her to the marital power, 1)ut she remained under that ol her father^ they were, however, regarded as distinct persons, with separate rights and ca{)able of holding distinct and separate estates.' The wife was alone responsible and might be sued, and was competent to sue on her own contract and engagement, and the husband could not subject lier property to any liabil- ity for his debts or engagements.' The dos was the property contributed either by the wife herself or by some other person on her behalf for the mar- riage establishment.'^ 'T\\Q paraphernalia and receptitia represented her extradotal property. The former term applied to that part of her prop- erty which she brought into the house, or of which her husband had possession by the description of her parapher- nalia, and of which an inventory was taken. The term receptitia applied to that part of property of which slie re- tained possession wholly separate and distinct from her hus- band.* The husband contributed to the matrimony the atdidos, which had been given ptropter nuptias or bona antidoialia!' This is the only part of the husband's property in which he did not retain the sole and absolute power of aliena- tion incident to ownership, while as to the rest of his property he retained the absolute and uncontrolled power of alienation, but the wife had no interest in nor })0\ver to interfere with it." The husband acc^uired a dominion in the dotal property which was determinable on the dissolution of the marriage. ' 1 Burge Com. 263. ^ 1 Burge Com. 273. ^ I Burge Com. 263. ** i Burge Com. 264. •' I Burge Com. 265. * i Burge Com. 273. 9 § ''3 r.vr.r.iiVGEK on ('ommunity property, [chap, l Such were the rights, powers, and interest which the husband and wife derived froni the civil law, in the absence of an agreement by which tliey iniglit establish for themselves different provisions.^ And the husband and wife had each a separate and distinct character, and separate and distinct capacities. /Phe civil law permitted them to contract with each other for a valuable consideration ; they could, therefore, buy and borrow from, as well as sell and lend to each other. The law, however, to protect them from any undue excess of that mutual influence to which their relations exposed them, interposed restrictions on their njaking dispositions of the property in favor of each ^ other. Donations, therefore, between them were prohibited. Such donations were rpso ./"(we void and transferred no title to the donee, but might be recalled by the donor.' § 3. In Holland — The Communio Bonorum. — The pro- visions of the civil law which established the doa and antidos and allowed the husband and wife to retain separate and absolute ownership of the rest of their propert}', might be adopted by the })arties in their nuptial contract, but formed no part of the community law of Holland. The property of the husband and wife and their rights and interests, stante matrimonio, were subject either to the disposition which they had themselves made in the contract of marriage, or to that which the law made for them. The communio ixictitia or conventional community was recognized when agreements were made between husband and wife relating to their property rights and interests. The communio statutoria, or the legal establishment, controlled in the absence of the conventional communit3^ The principle distinction from the civil law is embraced in the maxim vir et uxor bona non habent separata.^ The communio bonorum was either universal, that is com- ' 1 Burge Com. 273. '' i Burge Com. 276-7. ■' I Burge Com. 274. 10 THAI'. I.] THK COMMlNro I'.( »N( )1>' r M . § 8 muiiio bovonnii fnnuiinn. or parlicuhir, coiiimimio qunstuum, the latter conipiiscd only the projx'rty acquired during cover- ture, the toniief coiii)irisr(l all tlie ju-opei'ty whicii belonged to the huf>band and wile hel'orc oi' at the time of marriage, and also ae([uisitioi)s (hiring covei'tuiv. Unless an anti- nuptial contract ex('hide. " i Burge Com. 283. 11 § 3 BALLINGER ON COMMUNITY PROPERTY. [CHAP. I. be the subject of it, but also the frudus of that propert}- actually excluded from the community. The term "frudus" was used to express the rents, issues and profits of the prop- erty. Although the estate proper might remain the exclusive property of the husband or wife, its frudus formed part of the community, and the circumstance of one possessing no prop- erty, did not prevent the frudus of the other's property from being in community/ When the communio bonorum prevailed, the husband and wife and their respective estates became liable for the debts contracted by them, not only during coverture, but also be- fore marriage. If the communio bonorum was excluded and the communio qusestuum onh' adopted, the husband and wife and their estates became liable only for the debts contracted stante matrimonio, not for those contracted l>y them before the marriage.^ This liability was the necessary legal effect of the cuuiniunio quxstuum. The liability under either species of community as between husband and wife consisted in the property of tlie one being applied to the payment of u moiety of tlu- debts of the other, and if the original debtor liad brouglit no prop- erty into the community, or if the AV'liole of it had been dissipated stante matrirnonio, it would Ibllow that the pro|)erty of the other would be applied in paying the whole of tliese debts. The liabilit}' of the wife and hei- pro[)erty foi- debts contracted by the husband, stante matrimonio, existed inde- pendentof either species of community, and was aconsequence of the marital })ower. Her j)roperty was subject, as between her and her husband, to one moiety of those debts." As to the extent of their liability for debts contracted by them before marriage, it may be stated that so long as cover- ture continued, if there were no nuptial contract restraining this liability, the property of the husband might be taken in execution for tiie debts of the wife, and the property of the ' I Burge Com. 292. * l Bnrge Com. 295. ' I Biirge Com. 294. 12 CHAP. I.] THE COMMUNIO r.ONOllUM. § 3 wife for the debts of tlie husband, coiitnicted by them re- spectivel}' before the marriage. So etfectually was the liability of the one transferred by the operation of law to the other that if a person married a woman against whom a judgment had been obtained, such judgment would be executable against his property without any judgment or citation to de- clare it so cxecutal>le/ The husband or wife whose property had l)een thus taken succeeded to the rights of the creditor and was reimbursed one moiety of the debt out of the community, when the re- spective shares were assigned to each on its termination.'^ From the general incapacity of the wife to contract debts or make contracts during coverture, and from the exclusive management and administration of the property being vested in the husband, the debts and charges relative to the property in community and of the wife were incurred by the husband. The wife became chargeable not only with the debts of the husband but each with the liabilities which he had incurred.'' The husband became by his marriage the curator of his wife, he had, therefore, the sole administration and manage- ment of her propei'ty and that of the community, and she was entirely excluded from that administration in every case in which her acts could not be refeired to an authority express or implied from her husband.* He received for his own use the rents and protits of her })ro})erty, although the property itself formed no ])art of the communitv. In Gelderland, the husband could not, without the con- sent of the wife alienate any part of the immovable property subject to the community. (The only instance discovered, except in Washington, where this restriction prevailed.) In Holland, however, his power of alienation was unre- strained of both the personal and real property, and the ' I Burge Com. 295 and note b. •* i Burge Com. 298. - I Burge Com. 296 and note a. * i Burge Com 301. 13 § .") BALLINGKR ON COMMUNITY I'KOI'KjrrV. [cHAI'. J. wife could make no disi»osition even of lier own property without the consent of her husband. The coininunity ceased on the death of one of the members or the (hssohition of the marriage rehdion, l)nt tlieir voluntary se})aration did not have this effect. On the deatli of (tne of the members the survivor retained the })ossession of tiie community prop- erty. In order, however, to prevent the survivor from deriv- ing an advantage by delaying the division thereof, tlie law considered the community as continued, after the death of the party, until a division was effected, when the interests of the husband and wife in consequence of there being no ante-nui)tial contract between them were left to the operation of the law. The division which took place on the termina- tion of the community depended on the nature of that com- munity. If it was composed of all their property, the division was into two equal parts, one of vvliich was retained by the survivor, the other assigned to the heirs of the deceased. If tliere had been only the communio qusestuum the same division is made of the fructus of the property. The property itself wdiich belonged to the deceased passed to his heirs and the survivor took that which exclusively belonged to him.' Before the community could be terminated those debts charged as expenses to which the property was subject must have been deducted. From the extensive powers which the husband possessed the wife might have been reduced to entire beggary if the law had not j)rovided her with some means of limiting her liability; it was, therefore, permitted her, on the death of her husband to i)rotect herself against being sued by credit- ors for the debts oi' engagements which he had contracted, stante matrimonio, by renouncing all the proi)erty wliich had been in community.'^ . The dotal system or civil law seems to have been recog- nized oidy in })art by the laws of Holland. The term dos 1 I Burge Com. 311. - t Burge Com. 31 J. 14 C;>1A1'. J.] THE FKKNCH COMM tlNJTY. i^ 4 was used, liowever, to desigiuite f)roperty (contributed by or on the part of each to th(^ uses of the niati'iinony, and sub- ject on its (Hssolution to be restored to its respective owners oi- to otiiers according;- to the a<;reenient of the parties, and was in but few particulars siniilar to the dox and unfidos of tlie civil law/ §4. The French Community. — A community of ])rop- erty, u)w conmmnaute des bienes, between husband and wife prevailed in France, by usage and euston), from so remote a j)eriod tliat it is doubtful when it was first introduc(M], or from what source it was derived."^ Like ih^ gimancias, or community in 8j)ain it is likely that it had its origin in the customs of the (Joths. who settled west of the Rhine. In those provinces which W(M-e governed, not by their own customs {coutumes), but i»y tlx^ civil law (le droit ecrit), it had no existence, unless by the contract of the parties.'' The southern ])rovincesof Franc(\ l)eing mainly Ilomanic, adopted the civil law, the northern provinces, possessing a greater admixture of Teutonic blood, were governed by their own particular coidaines, lience the pi'0|)erty rights of hus- band and wife were regulated by two different systems of law, i)elbrc tlu' Fi-ench Revolution ; the northern by the community .system (le refjiiue de fa communaide). the other by the dotal .svstem (le regime dotal). The Code Napoleon abolished these coutumes, and retained as common or universal law of France, the community sys- tem, l)Ut by w;iy of compromise left the parties to elect the law l>y which their marital jjroperty rights wei'e to he gov- erned, and if no election was made the community .system prevailed.* The code does not attempt to regulate the conjugal society in respect of the marital })roperty, except when there is no ^ T Biirge Com. 313. ^ 1 Burge Com. 333; Code Napo- '^ I Burge Com. 332. leon, Arts. 1391, 1393. •' I Burge Com. 322. 15 5^ 4 liALLINGKK OX COMMUNITY PROPERTY. [cHAP. I. special stipulation respecting it. Hence they may make such agreements on their marriage as they may deem niost beneficial to their interests, so long as they are not incom- patible with good morals, and do not derogate from the power of the husband over the })erson of the wife and chil- dren, nor change the legal order of succession. ' It permits them to declare in general terms that they intend to be married either under tlie community or dotal system.^ In passing, we will observe that the community as exist- ing in the coutume of Paris, was originally extended and is in force in Lower Canada, and the Code Napoleon prevails in the colony of St Lucia."'' By the Code Napoleon, the celebration of marriage is treated as a civil contract. The community, whether legal or conventional, commences from the day of the marriage cere- mony, and the parties are not permitted to stipulate that it shall commence at any other period.* The community is composed, actively: 1st, of all the movables which the spouses possessed at the time of the celebration of the marriage, together with all the movables which fall to them during the marriage by title of succes- sion, or even by donation, if the donor has not expressed the contrary. 2nd, of all the fruits, revenues, interests, and arrears of every nature whatsoever, falling due or received during tiie marriage, and arising from the effects which belong to the spouses at the time of the celebration, or from such as have fallen to them dui-ing the marriage, from what- soever title derived. 3rd, of all the immovables which were acquired during the marriage.'' The code excludes from the community "the immovables ' Code Nap. Arts. 1387, 1388, 1389, For a discussion of these C(?«/'«w.?.v, 1390, 1529; I Burge Com. 334. see i Burge , 335, et seq. 2 Code Nap. Art. 1391; i Burge * Code Nap. Art 1339. Com. 334. ''■ Code Nap. Art. 1401. •' I Burge Com. 335, and note b. 16 CHAP. I.] TKE FRKNCn COMMUNITY. § 4 whicli tlie spouses possessed at the time of the celebration of the marriage or which fell to them during its existence by title of succession."^ "Ever}' immovable is presumed to have been acquired in community, unless it be proved that one of the spouses had the propert}' or legal possession thereof at a period anterior to the marriage, or that it had fallen to such party since, by title of succession or donation."'^ The coi(/(tme of Normandy observed tlie opposite presump- tion.'^ "Donations of immovables which are made during mar- riage to one only of the spouses, do not fall into community, but belong to the donee onW, unless the donation expressly declares that the thing given shall belong to both in com- munity." * "An immovable abandoned or ceded by father, mother, or other ancestor, to one of tlie two s})Ouses, eitlier to com- pensate what is owing such party, or on condition of dis- charging debts due from donor to strangers, does not enter the community, except as recompense or indemnity." ^ "An immovable acquired during marriage, by title of exchange, for an immovable belonging to one of the two spouses does not enter into community, but is substituted instead of and in place of that whicli had been alienated saving recompense, if there be any ditference in value."'" "The acquisition obtained during marriage, by title de licitatiori, or otherwise, of a portion of an immovable, of which one of the spouses had possession by joint tenancy, does not form an acquisition, except to indemnify the com- munity for the sum which it has paid out for that acqui- sition." ' The frudus naturales, industriales and civiles, received, or accrued, during the community form })art of it.** 1 Code Nap. Art. 1404. ^ Code Nap. Art. 1406. ^ Code Nap, Art. 1402. « Code Nap. Art. 1407. •' I Burge Com. 348. ' Code Nap Art. 1408, * Code Nap. Art. 1405. * i Burge Com 355. 17 § 4 RAJvJJNGKK ON COMMUNITY rKOI>KHTV. [cHAP. J. Such fruits or crops as Ijuvo not been gathered during the community belong not to the communit}^ but, to the spouse who is tlie owner of tlie estate on which they are still hang- ing or standing, until se})araled from the soil:' they are immovables, and excluded from the community.'' Of the frucUis civiks, those onlv fall into the community, Avhich accrue during its continuance; those which accrued before the marriage became part of the community, not as fruits, but as movables." "The community is composed passively, 1st, of all the movable debts of which the spouses were charged at the time of the celebration of the marriage, or of which they found the successions chargetl which fell to them during marriage, except the recompense for those relating to the immovables proprcs to the one or to the other; 2nd, of the debts held oi mjyiteaux as arreai's or interests, contracted by the husband during the community, or by the wife with the consent of the husband, except the recompense in that case, or that in lieu thereof; 3rd, of the arrears and interest only of the rents or debts j)assive, which is ])ersonnl to the two spouses."* It must be kept in mind, to understand tiiese provisions, that the law of France makes the jx^rsonal debts of an indi- vidual a charge on his entire estate, and, as by marriage the whole of that movai)le estate passes into the commmnty, the debts also pass w itli il.' The community is not cliarge(j, however, witii ilie immov- able debt of either spouse. During the continuance of the coinmiinily. not only the property of the husband together with that of the wife com- prised in the comn)unity, but the husband himself is person- all v liable for the del>ts contracted b\- the wife, before the ' Code Nap. .-Vrt. 585. ■• Code Nap. .\rl. 1409. ■' I Burge, 355. •■ I Burge Com. 357-8. ■' Code Nap. Art. 5S6. 18 OHAI'. l] THE FRENCH COMMUNITY. § 4 nianiiige, iVoni which arises the French maxim, ''Qui epouse la f em/me, epouse les dettes." ' After the termination of the community, the husband continues liable for the whole of the debts contracted by him before the marriage, and for those which, during the commu- nity, wiM-e contracted by himself, or by his wife acting under liis authority.'^ In order to protect the wife against the consequence of an abuse by the husband of liis extensive power over the })ro[)- erty in community, the code permitted her to renounce the community. As she might, however, have accepted it under a misapprehension of the amount of debts with which it was charged, the lial)ility of herself or her heirs, as against the creditors, as well as against the husband, was, l)y both sys- tems of jurisprudence, limited to the amount of the profit which she, or her heirs, might have derived from it.'' The language of the code is, "The wife is not bound for the debts of the community, either in respect to the husband or in respect of the creditors, so far as the amount of her share is concerned: Provided, however, that after the decease of one of the spouses a faithful inventory be made, and that there has been no fault or fraud on the ];)art of the wife, or of hei' heirs."* ''The husband has the sole administration of the effects of the community. He has the power to sell, alienate, and. hypothecate without the consent of the wife." ' "The husband has the administration of all the personal effects of the wife. He has the sole power to exercise all the movable actions and possessions which belong to the wife."* Only such donations by the husband are sustained as are sans fraiidc as against the wife or her heirs.' ' 1 Burge Com. 362. ' Id. Art, 1421. - I Burge Com. 263. ^ Id. Art. 1428. •^ I Burge Com. 363. ' Id. Art. 1422. * Code Nap. Art. 1483. 19 § 4 BALI.INGEK ON COMMUNITY PKOPJ^RTY. [CHAP. I. And he cannot by testament bequeath more tlian liis share of the communit}'/ The wife cannot of lier own autliority exercise an}- power of administration or aHenation over the community property.^ She has a mere expectancy, vne siw2)le esperance, to share in such property as may be found at the dissolution of the community, undisposed of by the husband;^ She becomes by operation of law a party to the debts con- tracted by her husband, and liable to the extent of her interest in the property of the community, without any actual con- currence on her part, and by the effect alone of the marital power. If she becomes, in fact, a j)arty to a debt, having been authorized by her liusband to concur in it, she incurs a liability in respect not only of that interest, but also per- sonally, and in respect of all her separate property.* The husband possesses the sole administration and man- .a^ement of the wife's separate property hiena^ propres, as well .as the property in community.'^ Hence he receives for himself, or the community, the rents, issues or profits of her sei)arate property.*' But he could not dispose of any of her property without her consent. "He cannot alienate the personal immovables of the wife without her consent." ' The community is dissolved bv the natural or civil death of either of the spouses, or by separation, either de hienes or de corps!' A voluntary separation is, however, null." On the dissolution of the community, the wife has the option of accepting or renouncing it. The same option be- longs to her heirs or universal successors, but not to the husband or his heirs.*" ' Id. Art. 1423. " Code Nap. Arts. 226 and 1429, - /la?.! Art. 1426-7. 1430. ''■ I Burge Com. 368. ' Code Nap. Art. 142S. * Code Nap. Art. 1419. t Burge ^ Code Nap, Art. 1441. Com. 369. "•' Code Nap. Art. 1443, 1444. ^ I Burge Com. 369. i» Id. Art. 1443. 20 CHAP. I.] TJIK FRENCH COMMUNITY. § 4 "After the dissolution of tJie comiimiiity, the vvife, or her heirs and assigns, have the power of accepting or of renuncia- tion. All agreements to the contrary are null." ' "The wife who has i)articipated in the effects of the com- munity cannot renounce it." " No continuation of the coinniunity took phice after the dissolution under the code.' The community liaving been accepted by the wife, oi- her heirs, li(|uidation and partition take place.* After all the deductions of tiie married persons, or their representatives, of tiieir separate property on dissolution of the community, the residue is partitioned in moieties, be- tween the parties, or their representatives, subject to the rights of creditors."'^ Leregime dotal, or dotal system, under the Code Napoleon is founded, as before observed, on the leading principles of the civil law of Kome. La dot is defined by the code to be "the effects which the wife brings to the husband to support the expenses of the marriage."'' Whatsoever the wife settles, or is given to her, in tlie con- tract of marriage is dotal, if tliere be no stipulation to the contrary.' The settlement oi' the dot may comprise all her present and future property, or a part of both, or either, or only her present property, or even an individual article. If it be in general terms it will not include her future [)roperty."* The management of the property assigned in dot, the right of suing those who are debtors in respect of it, or who detain it. of enjoying the fruits or interest thereof, and of ' Code Art. 1453 • '■ Code Nap. Art. 1540. - /d. Art. 1454. ' Id. Art. 154 1. ■' /d. Art. 1442; I Burge Com. 378. *' /d. Art. 1542. ■* r Burge Com. 379. •"' Code Nap. Art. 1470, )47i, 1473, 1474, 1478, 1479. 21 § 4 BALLINGER ON (;OMMUNITY PROPERTY. [cHAP. T. receiving leiiiibursemeiitH of tiu> capital, vest in tlie husband alone during marriage. But an annual sum may, by the marriage contract be made |)ayable to the wife, on her own receipt for her personal expenses.' Neither the husband alone nor he and the wife jointly can, during the marriage, alienate or pledge an immovable, the subject of the dot., except under certain specified condi- tions." The husband having tlie administration and management of the dotal property, and being in the receipt of its fruits, is chargeable with all the obligations incurred by an usufruc- tuary, and responsii)le for all the losses wiiich Iinve been occa- sioned by his negligence."^ The husband's liability, under the "dotal system" differs in respect of the principle on wliicli it proceeds, from that under the community system. Under the latter he is liable, because the debts pass into the community witli the })rop- erty which is burdened with them. Under the dotal system he is liable only in res[>ect of the dotal })roperty which the wife brings into the marriage. He is bound to pay all the debts, but never having been personally liable for them he is permitted, by delivering up the wife's })ro})erty to her creditors, to absolve himself from further liability.* All the property of the wife which has not been settled in dot is declared to be paTaphernal, or extra dotal:' The management and enjoyment of her paraplicmalia belongs to the wife. But she cannot alienate such property, nor become party to a suit in respect of it, without the au- thority of her husband, or, upon his refusal, without the permission of the court." The husband who enjoys the parapheDiolia incurs all the obligations of an asufruduary.'' 1 Id. Art. 1549. ■'' Id. Art. 1574. - Id. Art. 1554-156 1. " Code Nap. Art. 1576. " Id. Art. J562. ■ Id. Art. 15S0. ' Code Nap Arts. 2170-2 172. 22 <;HAP. I.] THE SPANISH (X)MMUNITY. § 5 The code has adopted the rules ol' the civil law un the subject of donations between husband and wife. Tlie one spouse may make a gift to the other of the whole of the property of which the law leaves him tlie power of disposal, but it is revocable at any time during the life of the donor, and the revocation may be made by the wife without the authority of her husband, or of a court of justice. Mutual and reci])rocnl donations cannot be made by the same act.' Donations disguised or made to intermediate persons are prohibited.' The parties may, by their matrimonial convention modif}'^ the community established by law. Tt is then called la com- vmnaidc convention elle. It may be stipulated that the community shall consist of acquisitions, or of a part only of the present or future prop- erty, or that on the decease of the conjoint his or her. heirs shall take a third or a fourth part of the community.'' The provisions of the French community system bear a greater analogy to the communio bonorum of Holland than to the Spanish system of c/anmicins. which will next be dis- cussed. § 5. Spanish Community or Ganancial System. — Under the laws of Spain, its commentators describe the property contributed b}^ or on behalf of the wife, to sustain the bur- den of the matrimony, as los bienes dotales, and the property brought into matrimony by her, exclusive of that assigned in dote, as bieiies paraphernales, or extra dotal. The property contributed by the husband to sustain the expenses of the matrimony, is called arras.* All other property is described by the term bienes proprios, or bienes communes. By the terms bienes proprios is meant the property of either consort acquired by succession, testa- ment or lucrative title. The term bienes communes is applied ' Code Nap. Art. 1096, 1097. ■' Code Nap. Art. 1497. - Code Nap. Art. 1099. ^ i Pmrge Com. 416. 23 § 5 BALLINGER ON COMMUNITY PR0PP:RTY. [cHAP. I. to bienes gmiancialies, or multipUcados, that is to all such prop- erty as the consorts have acquired during the marriage by their labor or industry, or by purchase/ The provisions of the civil law of Rome relating to the dos are nearly identical with those of the laws of Spain relat- ing to the dote. An outline of the dotal system, therefore, as prevailing in Sj)ain, can be of little service to the profession, since it has not influenced or become a part of the laws of any of the American States, except in the Territory of New Mexico; and for the further reason that Louisiana, the only commu- nity State in which it now prevails, re-enacted the Code Napoleon on this subject. Consequentl}'' it will be sufficient to refer to the following sources for further information upon this subject.'' The law of Spain does not recognize the general communio bonorum, which existed in Holland, but admits only the communio qusestwum or community of acquests and gains. The latter is constituted between the husband and wife as the legal and necessary effect of their marriage. The prop- ert}'' of whicli it consists is termed gancmcial, bienes ganan- ciales:' The right to ganancias is founded upon the partnership or society which is supposed to exist between the husband and wife, because she brings her fortune {Capitales) in dote, gift and j^ciraphernalia, and he his in arras, wherefore, it is directed that the gains (ganancias) which result from the joint employment of this mass of property or capital, be equally divided between both partners.* Ganancial property is defined by Spanish authors to be 1 (Febr. Nov. lib. i, tit. 2, C. 3, » i Burge Com. 418. [MrNlTY. § 5 from the ibregoiiig iUitliofilies, that the [)r()[»erty constituting the ganaiicias belongs in coniiuon to the two consorts; tliat it is confined to future acquisitions, and that it enil)races all j)roperty of whatsoever nature which the spouses acquire by their own laljor, industry and skill during coverture; that the fruits, natarales, indusiriaU\s and c/nVc.s', tliat is the rents, issues anur- chase of other property, or if separate property be exchanged for other property, tlie purchase or exchange remains the separate property of sucli consort, and will not become gan- ancial.^ In determining whether the property be acquired during matrimony the law refers to the time when the right of title to it commenced. If its acquisition originated in a riglit or title existing previous to the marriage, although the actual possession took place afterwards, it is deemed to have been made previous to the marriage, and not to be part of the communitv.'' ' I Wliite's Recop. 6i. ''Gars, de Coiij. Acq. N. 6i, 62; - I Burge Com. 419. Feb. Nov. 1. i, t. 2, c. 8, 11. 7. '^ I Burge Com. 419; i Wliite Rec. ■' 1 Burge Com. 419. 61 and note. 27 § 5 BALLINGER ON COMMUNITY PKOPKRTY. [CHAP. I. Prize money obtained in war by the husband is not gan- ancial unless his outfit as a soldier was at the expense of the common fund/ We have seen that the fruits and income of the separate property of the spouses under the Spanish law fall into com- munity. On this subject it is stated in the Institutes of Aso and Manuel (1. 1, t. 7, c. 5, t. 58) "That the fruits (frudus) produced from the total mass of property {capitales) gained and improved during marriage come into community." Also the fruits or produce not gathered which shall appear on the vines, trees, etc., or those not yet apparent if the labor bestowed is on land sown;' that the fruits or products are alwa3^s common, although one of the consorts may have more property or means;* that the improvements (majores) made of plantation, building, etc., are ganancial, with the difference that if the planting should be done in the partic- ular land of either of the consorts, it should be divided, deducting first tlie value the land was of before it was planted, and the giving or allowing that to the owner; but if a house hath been built or an oven or a mill hath been erected on the land of one of tliem, the person on whose land the build- ing or erection is made shall have tlie benefit of it, and shall pay to the other the moiety of what tlie building cost; ' tliat the value of a company or co-partnership, or of an oflice purchased by husband and wafe, shall be ganancial, accord- ing to its worth at the time of partition;'' that tlie rents of the estate or inheritance leased out are also ganancial in pro- portion to the time the marriage continued for that year.' But the crops of grain (mieses) or ripe fruit of the estate which either of the consorts brings into marriage which were not sown during marriage, do not come into community, 1 L- 2, t. 4, 1. lo, Nov. Rec. '' L. 9, t. 4, 1. 3, I'uero Real, and - L. 5, t. 9, 1- 5. Rec; 1.5, t. 4, 1. note 50. 10, Nov, Rec. 'Ayora, pt. i, c. 9, n. j6. •■' L. 18, t. 14, 1. 3, Fuero Real. " Ayora, pt. i, c. 9, n. 5. " Iv. 4, t. 9, 1. 5, Rec. ; 1 3, t. 4. 1. 10, Nov. Rec. 28 CHAP. I.] THE SPANISH COMMUNITY. § 5 wherefore they shall be deducted from the mass of prop- erty.^ Nor shall the improvements made on entailed property ( mayorazgo) be ganatidaU The rents, issues and i)rofits which have not been disposed of during coverture are divided on the dissolution of the marriage the same as other ganancias.^ The husband has the exclusive administration of the com- munity, and may hypothecate or alienate it as he chooses,* but he cannot alienate it maliciousl}^ (con malicia) and in fraudulent diminution {enfmude) of t\\e gcmancias.^ According to Palacios, the reason assigned for the husband's power of disposal of the ganancias during marriage, without the wife's consent, is because the husband has the dominion and possession of it in adu et habitu during marriage; and the wife only inliabitu until the marriage is dissolved, when she acquires it equally with her husband. (Her interest seems to be a mere expectancy during coverture similar to that under the French system.) '•'The gains and losses being common, the debts which are contracted during marriage are to be paid out of the common propertv, but not those contracted before marriage or after its dissolution." The wife shall not pay half the debts, if she shall renounce the community."^ Upon the dissolution of the community by deatli or legal separation, the ganancias are to be divided equally. The wife may renounce the community before, during or after its dissolution. This renunciation must be expressed, and Is never implied.** By renunciation she forfeits all claim to the gains and ' A3-ora, pt. i, c. 9, 11. 3. ° L. [4, t. 20. 1. 3 Fuero Real. '■iL. 6, t. 7, 1. 5 Rec; 1. 6. t. 17, ' L. 9, t. 9, 1. 5 Rec; 1. 9, t. 4, 1. jo 1. 10 Nov. Rec; i Wliite'.sRecop. 62. Nov. Rec. =* Iv. 6, t 4, 1. 10 Nov. Rec. * Schmidt's Civil T.aw Arts. 65, 66. * Febr. Nov. 1. i, t. 2, c. 8, ti. 19. " h. 5. t. 9, 1. 5 Rec; 1. 5, t. 4, 1. 10 Nov. Rec. 29 § () I'.AMJNtiKK ON COMMrXITY riKH'KHTY. [cHAP. I. remains discharged IVoiii all debts contracted or losses sus- tained by her luisl)and/ The wife forfeits her matrimonial gains when she has l)een iiuiltv of adulterv or abandoned her liusbiuxl without liis consent." And "if the widow lives luxuriously and by crime (par delito), she shall lose her moiety of the gauancias^^ Neither of them shall forfeit his or her property, nor lialf of the com- munity by the crime of the other.^ Immediately upon a division being made of the common property, each acquires an absolute dominion ;is to theii- respective moieties or pro- portion."' A donation by one sj)0use to the other is governed by the rules of the civil law. It is revocable during the lifetime of the donor, but it is viilid if the donor dies before revocation.* § 6. The American System — Origin of. — The conquest of Mexico by the Spaniards and their acquisition of the Florida territory resulted in the introduction on American soil of the Spanish ganancial system. Louisiana was origin- ally a French colony, but was afterwards ceded to Spain, when the Spanish law was introduced, but again reverted to the French, and from them was acquired by the United States. The confusion of laws resulting from these numer- ous changes caused the adoption of a code in 1806—8, which did not su})ersede the ancient laws except when in conflict therewith. A further revision was made in 1822 ond adopted in 1824. The code of Louisiana has, with slight modifications, adopted the •' Dotal System " of the code Napoleon, as re- gards the separate i)roperty rights of the spouses, but as to their common property it retained the essential features of 1 Schmidt's Ch-il Law, .\rt. 64. ■• L. 10, t. 9, 1 5 Rec. ; 1. 10, t. 4, - Schmidt's Civnl Law, Art. 68. 1. 10 Nov. Rec. ■' L. 5 and 11, t. 9, 1. 5 Rec; 1. 5 '' i White's Recop. 61. and II. t 4. 1. 10 Nov. Rec. "^ Gomez in L. Tavir. 50, n. 65. 30 CHAT. I.] THE AMKKICAN SYSTEM. § () the Spiinish qano/ncial systein, as will be seen by reference to the Appendix. Texas and California being originally a part ol' the terri- tory of Mexico, before their acquisition by the United States possessed the community system of tSpain and Mexico, but, on the ado})tion of their constitutions, it was provided that all proi)erty, both real and personal, of the wife owned or claimed by her before marriage, and that acquired after- wards by gift, devise or descent, shall be her separate proi)- erty, and laws were required to be {massed more clearly defining her rights therein. Tfiese provisions had the effect to I'ender inoperative the dotal system of the Spanish law in those States, and their Legislatures, in conformity with this provision of the organic law, gave the wife substantially the right of a femme sole in all her separate property; hence it is apparent that the dote and arras of the Mexican law could serve no useful purpose under a status which .so fully emancij)ated the wife as to her property rights, and left the husband the .same privileges in his- separate property. The Tei-ritory of New Mexico seems to have borrowed the Spanish law of [)roperty rights of married persons in its en- tirety, and with slight modifications, and will be found to be the oidy })art of the Union in Avhich the Spanish "<]otal system " exists.' The present condition of the laws of New Mexico and the difficulty of access thereto prevent an accurate statement of their provisions. Originalh'^ the community laws prevailed in Florida and in all the Louisiana territory, but has been superseded in Florida, Missouri, Arkansas, Iowa, Mississippi, and all this territory, except Loui.siana, by the common law. The Spanish f/anancial system formerly existed in Mis- souri." The community system as adopted in older community ' Chavez v. McKnight, i New - Cliildress v. Cutter, j6 Mo. 39. Mex. 147. 31 § 6 BALLINGER ON COMMUNITY PROPERTY. [cHAP. I. States has been borrowed by Nevada, Washington and Idaho, with certain modifications, which will be seen by reference to the Appendix; hence the American community system prevails at this day in Louisiana, Texas, California, Nevada, Arizona, Washington, Idaho and New Mexico, and is in- debted to Spain for its origin. To the lawyer whose mind has been trained under the common law, the system proposed to be treated herein will perhaps be found embarrassing and possibly perplexing. The influence of education and association are sucli strong factors in coloring our tastes and ideas that to some the gan- ancial status of marital rights may meet with severe criticism, but whatever may be said of it, it presents many commend- able features, which we would more readily expect to have originated in the most polished ages of social advancement, rather than out of the barbaric customs of the ancient Goths or of the Middle Ages, and although environed as it is in America with the strong influence of the common law, as practiced by the lawyers and the courts of our countr}-, and its merits thus, to some extent, obscured, it is confidently asserted that such environment cannot long impede the de- velopment of a system of laws which yield to the wife, in matters of property, the equality of interest and riglit with the husband which Christian justice demands. A marked advance may be thus noticed in the system under consideration over the marital rights of the earlier ages, and even over the jurisprudence of some of the most enlightened countries. "Experience," says Gibbon, "has proved that savages are the tyrants of the female sex, and that the condition of woman is usually softened by the re- finements of social life."^ So under the customs of even refined antiquity the hus- band bought his wife pei- coemption&m from her parents, thus enabling her to exchange one kind of servitude for another. ^ 2 Gibbons, p. 200. Oil CHAP. II.] LEGAL AND CONVENTIONAL. § 7 She acquired and inherited for the sole profit of her lord, and so clearly was woman defined, not as a person but as a thing, that she might be claimed or replevined like other movables by the use and possession of an entire year.' CHAPTER II. WHAT PROPERTY IS IN COMMUNITY DEFINITIONS AND CHARACTERISTICS. ? 7. Legal and Conventional Community. ^ 8. In California and other States. ^ 9. T.he Statutory Community. ^10. Dower and Courtesy Abolished. ^11. Theory of the Community System and its Characteristics. ^12. Applies Equally to Residents and Non-Residents. ^ 13. Statutory Definitions. 'i 14. Marriage Must be Legal. 'i^. 15-16. The Community as a Partnership. I 17. The Community as an Entity. § 18. Definitions and Characteristics. ^ 19. All Gains and Acquests Belong to the Community. ^ 20. Money and Negotiable Paper. ^. 21. Rents and Profits of Separate Property — When Communit}-. 1^ 22-23. Rule in California as to Rents and Profits of Wife's Separate Property. ? 24. Modifications of Spanish Law. ? 25. Public Lands — Acquisition of — When Community. ter (111), unless there is a marriage settlement containing stijmlations contrary thereto.'"^ The statutes of Texas defining the marital riglits of })er- sons provide for marriage contracts under restrictions which reader tliein ahnost useless. The provisions of tiie law as to the })roperty rights of married persons and of descent and distribution thereof very largely regulate the domestic rela- tions.'' In that State the husband and wife cannot alter the legal order of descent in respect to, themselves or their chil- dren by a contract made in contemplation of marriage, and a fortiori tliey cannot do so by contract during marriage.* ' I^a. C, c. 2312; Sc[uire v. Beldon, contracts is in ^ 140T Gen. Stat., as 2 La. 268; 16 An. 425; 23 An. 372; to agreements concerning the .status Barrow V. Stevens, 27 An. 343; Han- or dispo.sition of the conininnity lej' V. Drum, 30 An. 106; Sue. of property between the spouses, to- Coco, 32 .\n. 325; 17 La. 252; 12 take effect upon the death of either. Rob. 578 See Snyder v. Webb, 3 Cal. 83. -' Cal. C. C, 'i 177. See also '<>. 159; '■'■ Pasc. Dig. 14733; see Art. 4344, Wells V. Stout, 9 Cal. 479; Gen. Stat. Sayles' Tex vStat Nev. 518, 524; Rev. Stat. Idaho, ^^< ' Tex. Rev. Stat. Art. 2847; Cox v. 250S, 2512. Miller, 54 Tex. 24; Green v. Fergu- As to form and manner of cxecut- son, 62 Tex. 528. ing such contracts, see <;^ 178, 180 A post-nuptial agreement is void Cal. C. C. which revokes a marriage settle- ?;; II, 12 and 13 of the act of 1869 ment, and provides that, in ca.se the of Wa.sh. Ter., page 321, authorizes husband dies without issue of the marriage contracts to contain stipu- marriage, his property shall descend lations contrary to the community to his heirs, as if the marriage had establi-shment. The only provision never taken place, under Rev. Stat, now found in the laws of the State Tex. 1S79, Art. 2847, providing that of Wa.shington touching marriage parties in contemplation of marriage 35 § 9 BALLINGEK OX COMMUNITY PROPERTV. [cHAP. J I. The basbaiid and wife caiiDot dissolve ihequasl partnership which the law creates for them in reference to tiie property held by them in community.^ Nor can they change the character or nature of their rights and interests in property owned and acquired by them, from that prescribed by the law. Such an agreement would be in direct conflict with and subversive of the law regulating the material rights." ''' § 9. The Statutory Community. — All th(^ American States in which the community .sN^stem prevails, have, by statutor}' enactments, established the rules for the govern- ment of the property riglits of the spouses in community. These statutes, in defining what is and what is not commu- nit}' property, have but slightly altered the Spanisli law. In fact, they are substantially re-enactments of the Spanish- Mexican civil law on the subject of the property rights of husband and wife. In Louisiana, Texas and California, they are, for the most })art, merely declaratory of existing laws saved from the wreck of tlie Spanish system of jnrispradence formerl}' in force within these territories." In discussing the first statute in California on this subject. Justice Field said, in Scott v. Ward- * "The Mexican law as to what constituted common property, was very similar to the law of this State. Our statute does not seem to provide for property acquired by gift to the husband and wife jointly, but, with that exception, there is no substantial difference." The same observation is pertinent to the Texas statute. may enter into what stipulations ^ Green v. Ferguson, 62 Tex. 528. they please, not contrary to good - Cox v. Miller, 54 Tex. 24; Green morals or some rule of law, but in v. Ferguson, 62 Tex. 528 no case shall they enter into any ■* /« re Buchanan's Estate, 8 Cal. agreement which would alter the 509; Panaud v. Jones, i Cal. 513; legal order of descent. Groesbeck see Hames v. Castro, 5 Cal. 11 1; Saul V. Groesbeck, 78 Tex. 669, s. c. 14 v. Creditors, 5 Mart. N. S. 569, 16 S. W. 792; Cox. V. Miller, 54 Tex. Am. Dec. 212; Bruneau v. Bruneau, 24; Proetzel v. Schroeder, 83 Tex. 9 Mart. 217. 684; s. c. 19, S. W. 292. * 13 Cal 459. This rule is analogous to that of the common law. 36 CHAP. IT.] THEORY OF COMMUNITY ,SYSTP:M. §11 Louisiana lias, however, expressly recognized joint (lonations to be community property/ The most important modification engrafted on the Spanish- Mexican ganancial system is that wliich constitutes the rents, issues and profits of the separate property of tlie spouses' separate property, instead of classifying it as a part of the community estate. This change in the civil law is appli- cable to all the States except Louisiana, Texas and Idaho." § 10. Dower and Courtesy Abolished. — The statutes of those States in which the property rights of the spouses were governed l)y the common law, anterior to the adoption of the community system, have done away with the common law right of dower and courtesy, and substituted in their ])lace a half interest in the marital gains and acquisitions made during coverture.'' The legislation upon this subject has uniformly proceeded upon the theory of a complete dis- placement of the common law status, and the substitution of the spirit as well as the letter of the civil law upon this subject.* § IL Theory of the Community System and its Char- acteristics. — Tlie principle which lies at the foundation of the whole system is, that whatever is acquired by the joint efforts of the husband and wife, shall be their common property;'' the theory of the law being, that the marriage, in respect to property acquired during its existence, is a community of whicii each spouse is a member, equally con- ' Art. 2371 La. C. C. tvveen the common law and the - What is termed the " increase of community of acqitests and gains lands," however, in Texas, remains respecting the propert}' rights con- the separate property of the spouse sequent upon marriage. Me5'er v. to whom the land belongs. Se& pos(, Kinzer, 12 Cal. 252; see Parker v. ^ 21 note. Chance, ii Texas, 519; Cartwright ' Beard v. Knox, 5 Cal. 256; 63 v. HoUis, 5 Tex. 163. Also see Am. Dec. 125; Gen. Stat, Wash. chap. IX. ^1405; Cal. C. C. ^< 173; Gen. Stat. = DeBlanc v. Lynch, 23 Tex. 28; Nevada, 505; Rev. Stat. Idaho, 2506; see Cole's Widow v. Executors, 7 Rosencrantz v. Ty. 2 Wash. Ty. 267. Mart. N. S. 41. ■• There is hardly any analogy be- 37 / § 12 i;ali,in(;kk ox cmiM unity imioitokty. [chap. ii. tributing by his or her iinbistry to its pros[)erity. and pos- sessing an equal right to succeed to the property after its dissolution, in case one survive tiie othei'. To this commu- nity all acquisitions by either spouse, wliether made jointly or separateh', belong, and no form of transfer or mere intent of tlie parties can overcome this positive rule of law. All property is common, excei)t that owned j»revious to mar- riage or subsequently acquired in a ]\articular way.^ From the nature of tlie marital partnership, it is not necessary that any common stock should exist between the partners at the commencement of the partnership, for all the pro|)erty which they have at that [leriod, may be sepa- rately owned and administered by each individually, when no marriage contract has been made.~ The community commences at the time of the marriage with notldng, and includes at its dissolution presumptively ever3^thing found in the succession of the deceased spouse and in the possession of the survivor.'' The life of the community may be said to be co-extensive with the existence of the marriage. It springs into being at the instant the marriage is consummated, and is pre- sumed to continue until the contrary is shown.* It is dis- solved by the death, divorce, legal separation, or as in Texas by the permanent abandonment of one member by the other.'^ § 12. Applies Equally to Residents and Non-Residents. — The early statutes of Louisiana and of V/ashington Terri- tory limited the application of the community rights in property to residents of the State or Territory, but tlie law ' Me3'er v. Kinzer, 12 Cal. 252. 646; City Ins. Co. v. Simmons, 19 - Ford V. Ford, i La. 206. An. 249. ^ La. C. C. 2405; Denagre V. Den- •'"'The subject of "Descent and agre, 30 An 275; Bouligny v. For- Di.stribntion " will ])e found treated tier, 16 An. 209. at length under that head, posf, * Van Winkle v. Violet, 30 An. chap. VIII. 1 106; Grayson v. Sanford, 12 An. 38 (JHAl*. II.] STATUTORY 1)KK[\1T(0.\S. § l-"? is now to the contrary.' Before the passage of the act of Marcli I8th, 1852, by which tlie community of acf|uests and gains was extended in Louisiana, in favor of non-resi- dent mairied persons, to j)roperty in that state thereafter acquired, no such comnuniity existed. The })roperty acquired after their residence there alone fell into the com- munity." But the rule is now uniform, in all the States possessing the community law, that all property acquired during the marriage by either husband or wife, situated therein, will be deemed the common pro[)erty of both, whether the purchase be by a resident or a non-resident, and this is true even though the husband and wife were married in a common law State, and resided there at the time of the acquisition.'' § 13. Statutory Definitions. — The definitions of com- munity property, given in the Louisiana and Texas statutes, have retained the characteristics of the Spanish law with less variation, perhaps, than in any of the other community States, ^rhe })rovisions in Louisiana are that " Every mar- riage contracted in this State, superinduces of right partner- ship or community of ac({uests or gains, if there be no stipulation to the contrary."* "This partnership or com- munity consists of the i)rotits of all the effects of whicli the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates ' ha. C. C. 2370; Act Dec. 2, 7869, W. 99; Leech v. Guild, 15 An. 349; Wash. Ter. § 12, p. 321; Hershberger Hershberger v. Blewett, 46 Fed. V. Blewett, 46 Fed. Rep. 704; Grat- Rep. 704; Gratton v. Webei", 47 Fed. ton V. Weber. 47 Fed. Rep. 852. Rep. 852. - Sue. of Watrer, 25 An. 210; Sue. The wife has a community inter- of Packwood, 9 Rob. 438; Dunbar est in property acquired by her con- V. Heirs, etc. 5 An. 158; Conner v. sort in Louisiana, although she Conner, 10 An. 440; Armorer v. never resides there. Cole's Widow^ Case, 9 An. 288; 51 Am. Dec. 209; v. P^xecutors, 7 Mart. N. S. 41; Huff V. Borland, 6 An. 436; Leech Moore v. Thibodeaux, 4 An. 74. V. Guild, 15 An. 349. '' Voorhie's Code, Art. 2399. -' Heidenheimer y. Loring, 26 S. 39 § 13 BALLINGER OX COMMUNITY PROP"ERTY. [CHAP. II. which they may acquire during the marriage, either by donation made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the pur- chase." ^ The Texas statute defines the community as, "All prop- erty acquired by either husband or wife during the mar- riage, except that whicli is acquired b}^ gift, devise, or descent."^ The statute of California of 1850, provided, that '-All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common j^roperty." The present statute has, liowever, changed the rule of presumption regarding conve3^ances to a married woman, but in other respects it is substantially the same as the old statute.^ According to tlie statute of Washington, property, not acciuired or owned by either spouse before marriage, or acquired afterwards by gift, devise or inheritance, but acquired after marriage by either liusband or wife, or both, is common property.* The rents, issues, and profits of the separate property of the spouses, in all the States, except Louisiana, Texas and Idaho, have been declared by statute to remain as a part of the separate estate of the spouse to whom the separate prop- erty belongs.'' The statutes of the remaining States, in defining community property, are substantially the same as the earlier statute of California. For further information see Appendix. ' Voorhie's Code, Art. 2402. * Gen, Stat. Wash. ^^ 1397, ^39^, 2 Sayle'.s Stat. Art. 2852. 1399. ^ See Appendix, California; Act ■' See post, ^. 2\. March 3, 1893, amending | 164, Cal. C. C. 40 CHAP. II.] MARRIAGE MUST 15E J>K(iAL. § 14 § 14. Marriage Must Be Legal. — As stated in the Louis- iana code, marriage superinduces of right the community, and without a stipulation to the contrary it springs into being at the instant of the consummation of the marriage contract. Hence, where there is no legal marriage there can be no legal community.' There being no common law marriage in the State of Washington, land acquired with the earnings of a man and woman wlio live together and hold tliemselves out to the world as man and wife, is not community property; and, if no trust relation be established, the land must be re- garded as belonging to the one in wliose name the legal title stands." A putative or second marriage was recognized under the Spanish law as valid: our law, saj's the Supreme Coutr of Texas, engrafted as it is upon the common law, recognizes no conjugal relations with other persons until the matri- monial relation is dissolved.'' It was held, however, in Morgan v. 3Iorgan,* that a woman who, in good faith, marries a man whom she believes to have been legally divorced, is entitled to a share of the property acquired by tlieir joint efforts, notwithstanding tlie nullity of the previous divorce. By tlie laws of Spain, wliere a husband, during marriage, contracts a second marriage, the woman ignorant of the ex- istence of the first marriage, one-half the acquests and gains will go to each wife; one-lialf to tlie first, because the marital cohabitation did not fail through lier fault; and tlie other half to the second, because, by virtue of her good faith at the time of her marriage, she is reputed a lawful wife, though the marriage is null, for the same reason that her issue is ' /;/- re Winters, Myr. Prob. 131, see Hatch v. Ferguson, 57 P^ed. Rep. 132; Siic. of Dejan, 40 An. 437, 4 So. 966. Rep. 89; vSunimerlin v. Livingston, - Stans v. Baitey, 9 Wash., 114. 15 An. 519. ■' Routh V. Ronth, 57 Tex. 596; The legal conimnnity exists, how- ciualifies Wlieat v. Owens, 15 Tex. ever, in a putative marriage con- 241. tracted by both parties in good faith. ^ 21 vS. W. 154. McCaffrey v. Benson, .40 An. 10; 4] $^ 15 iv\[ r.iNcJKi; on coMNrrxiTV tropeuty. [artners]ji|), though legal, different from others in that the acquisitions are the property of each in equal proportions." The true theory of distinction between the community and an ordinary busi- ness partnership, as pointed out by Escriche, is this, that the acquisitions are by the law made equal in each consort, and this, too, notwithstanding the fact that one may contribute nothing in skill, labor or industry to the production of the acquest. It should be observed, also, that the husband is the sole business agent of this "statutory creature," while in provision in regard thereto, for the marriage i.s not a partnership, and purpose of subjecting the common is not subject to the rules of a part- property to the payment of such nership. Rev. C. C. La., Art. 2S07; debts as such property is liable for." Baird v. Lemee, 23 An. 424; Bartoli See Cartwright v. Hollis, 5 Tex. v. Hugnenard. 39 An. 411, 2 So. 163. Rep. 197. ' The ccnnmunity resulting from 43 § 17 BALLINGER ON COM^l UNITY PROPERTY. [CHAP, II. ordinary partnerships one partner has active powers of agenc}' regarding the management of its concerns equal with those of the other. § 17. The Community as an Entity. — I'he community should more properly be viewed in tlie light of a legal entity, at least so far as its members and parties dealing with them with knowledge of its existence, are concerned ; but this ideal being exists only in contemplation of law, and, as an entity, it has no active powers, duties or responsibilities, these being merged by the statutes in the husband, the head and master thereof.^ The presumptions of law strongly favor the rights of the community, and the rule is universal in its application, that all property acquired l)y an apparent onerous title, during coverture, falls into community, sepa- rate property being the exception to this rule.'^ The com- munity exists witliout being stipulated for, being brought into being by the marriage alone, and it will be presumed to exist between husband and wife until tlie contrary is shown.'' Tt is consequently recognized as the paramount estate of the marital relation, and its existence is favored and promoted by the law to the extent that when the sepa- rate funds or property of either spouse becomes so inter- mingled or blended with the property or assets of the community, that they cannot be segregated or traced, the community, being the dominant estate, absorbs the latter, and the whole becomes community property.* Yet, while this is true, the community does not attempt to reach out and swallow up the separate propert}' of the spouses. It is guarded and protected by presumptions which in all in- stances accompany it in its various forms and mutations, and are often controlling and even conclusive in their power 1 Kelley v. Robertson, lo An. 303; Cockburn v. Wilson, 20 An. 40; vSav- Hol3'oke V. Jackson, 3 Wash. T)-. enant v. LeBreton, i L. 520 235; Yesler v. Hochstettler, 4 Wash. '' City of New Orleans v. Davidson, 349. 30 An. 541. 2 Bouligny v. F'ortier, 16 An. 209; ■• Yesler v. Hochstettler, 4 W^ash. 349; see post, ?44. 44 CHAl'. II.] DEFINITIONS AND CHAKACTERISTICS. § 18 of preserving to tlie marital partnersliip the fruits of their gains. The purpose in thus fostering the community is found in the reasons for its establishment. So jealous is the law of the riglits of the spouses and of their {)rotection in their proprietary rights in community, that the husband and wife are not permitted to form a business partnership between themselves. It was said in Squire v. Belden^ that " Tlie community or legal partnership is so inconsistent M'itli the ordinary commercial partnership, that both cannot exist together, and the legal supersedes the commercial. Although the legal supersedes the commercial partnership, it cannot be superseded by it, for tlie legal results from the tacit or express agreement of the parties, at the time of the marriage, and they cannot alter their matrimonial agreements after the celebration of the marriage."" § 18. Definitions and Characteristics. — It would seem that the statutory definitions of community property were so clear, unambiguous, and comprehensive, that but little diffi- culty would occur to the practitioner in their application. The essential attributes of this species of property are clearly pointed out by the statute, and by recurring to them in all questions of doubt no especial difficulties need be encoun- tered. Whatever embarrassments or perplexities exist will be found, not so much in declaring what is and what is not community property, as in tracing it through its various forms and exchanges in the complicated affairs of business life. The statute views the specific forms which tlie property may assume as immaterial, but the proprietary rights therein only as material. The statute does not attempt to limit the ' 2 La. 269. 131. The wife cannot become a - An ordinary partnership cannot partner with her husband or with exist between husband and wife, any one else, to carrj' on a inercan- City Ins. C. v. Simmers, 19 An. 249. tile business. Smith v. Bailey, 66 To the same effect is Cox v. Miller, Tex. 555; Bradford v. Johnson, 44 54 Tex. 24; Green v. Ferguson, 62 Tex. 382; Brown v. Chancellor, 61 Tex. 525; Wallace v. Finberg, 45 Tex. 437; see Board of Trade v. Tex. 35; Miller v. Marx, 65 Tex. Hayden, 4 Wash. 263. 45 § ]9 P.AIJ,IN(;KR ox COMMIXITV I'ltorKRTY. [('HAI'. II. property in coinimmity to tlie form or slia})C it uuiy }>ossess wlien tirst acquired, but permits it to assume otlier forDJS, and to {lass through all manner of exchanges and mutations and still i-emain the common property of juisband and wife. A concise and accurate definition of community })ropert3" was pronounced by ('hief Justice Hemphill in Smitli v. Stra- Jiai),^ who said: "The definition of community pro})erty in- cludes all effects which husband and wife during marriage acquire by a common title, either lucrative or onerous, or which they, or either of tliem, acquire by purchase or through their lal)or or industry," and it mav be added that it excludes all property acquired in any other numner. It has been well said that the legal import of these words, -'community property," is a community of property'' All property, both real and personal, of ever}- name and character, acquired during marriage in the manner pointed out by the statute, is community proj)crty. § 19. All Gains and Acquests Belong to the Commu- nity. — Whatever is ac(|uircd by either spouse by purchase or exchange, by the labor or industry of either consort or by their minor children; the gains of either through pro- fessional services, or in speculation or traffic ; the ac([uisitions of either by or through copartnership or corporate associa- tions: damages recovered for i)ersonal injuries to either or both members; the increase of community live stock, and the rents, issues and profits of community realty; the fruits of all loans and investments of community funds, are classed as gains and acquisitions, and assume, as a legal consequence, the community character from the root from which they spring. The root or property source, together with the time when ac(piired, are alone looked to as the criterion by which to determine what propert}^ is or is not common.'' And while this is true of gains as originally acquired, it is equall}^ ' t6 Tex. 324. ^ Clark v. Norwood, 12 \n. 598. - Bartoli v. Hiiguenard, 39 .\n. 416, 2 So. R. 169. 46 CHAI'. II.] GAINS AND A('h An 595; Ford V. Brooks, 35 An H7; Morris V. Hastings, 70 Tex. 30; 7 S. W. 649. Moneys saved by the wife from funds given her by the husband for household expenses do not thereby lose their community character as against the rights of creditors, but as between husband and wife they do. Abbott V. Wetherby, 6 Wash. 507; Cavil V. Walker, 26 S. W 854; see Von Glahan v. Brennan, 81 Cal. 261. According to sections 1402 and 1403 of the General Statutes of Washington, "A wife may receive the wages of her personal labor, and maintain an action therefor in her own name, and hold the same in her own right, and she may pro.se- cute and defend all actions at law for the preservation and protection of her rights and property as if un- married," and "The earnings and accumulations of the wife and of her minor children living with her, or in her custod}' while she is living separate from her husband, are the .separate property of the wife." It was held in Abbott v, Weth- erby (6 Wash. 512), that these sec- tions should be construed together, and that the wife's earnings became 49 19 BALLINGER OX COMMUNITY PROPERTY. [cHAP. II. According to the Spanish law, as we have had occasion lieretotbre to notice, the fruits of the separate property of the spouses was treated as community property. The rules of a part of her separate estate onh' while she is living separate and apart from her husband, otherwise they become community property. According to || i68 and 169 of the California C. C, "The earnings of the wife are not liable for the debts of the husband," and "The earnings and accumulations of the wife, and of her minor children liv- ing with her or in her custod}-, while she is living separate from her hus- band, are the separate property of the wife "" Finnigan v. Hibernia vSav. & L. vSoc. 63 Cal. 390; Loring v. vStuart, 79 Cal. 200; see Tobin v. Galvin, 49 Cal. 34. For a valuable discussion of this subject see Prof. Pomeroy's article at page 305, 4 West Coast Rep. Moneys collected by the husband two years after marriage, due for services performed by the wife as school teacher, will be presumed to belong to the community. Pearce v. Jackson, 61 Tex. 642. The profits of the labor of the husband and wife belong to the com- munity. Prendergast v. Cas.sidy, 8 .\n. 6S But where there is no legal mar- riage they belong to the part}- b\- whom earned vStans V. Baitey, 9 Wash 114 What Is Not Community Prop- erty. — Property conveyed to the husband in lieu of a sum of money inherited by the wife is separate property. Savenant v. LeBreton, i I^a. 520; Robbin v. Castille, 7 La. 292. 50 Property received in exchange, or in payment of money due, or by purchases in a separate right, do not become community. Lawson v. Ripley, 17 La. 238; Do- minguez v. Lee, 17 La. 296; Young v. Young, 5 An 611; Troxler v. Col- ley, 33 An. 425. Property acquired after the disso- lution of the community is separate property. Broussard v. Bernard, 7 La. 217; Andrews v. Ware, 23 An. 229. Pension money paid a Union sol- dier of the late war is a gift or dona- tion from the government on account of services performed by him, and is his separate property, though he did not receive it until after his mar- riage; the fact that he invested it in lands does not change its character into community property. John.son v. John.son, 23 S. W. 1022, Rents, Issues and Profits of Sepa- rate Property When Community. — Theprofitsof investments of separate property are connnunity property in Texas and Louisiana. Smith V. Bailey, 66 Tex. 554; Bra- den V. Gose, 57 Tex. 41 ; Green v. Ferguson, 62 Tex. 529; Epperson v. Jones, 65 Tex. 425; Cleveland v. Cole, 65 Tex. 402; Claflin v. Pfeifer, 76 Tex. 469, 13 vS. W. 483; Mitchell v. Mitchell, 80 Tex. 101, 15 vS. W. 705; Hamilton-Brown Shoe Co. v. Last- inger, 26 S W. 924. Interest derived from bonds which are the separate property of the wife is connnunity property, which the husband may use without being liable therefor to his wife, unless CHAI'. II.] GAINS AND ACQUESTS. § 19 the Spanish law in tiiis particular have been retained only by the States of Texas, Louisiana and Idaho. This subject is treated in § 21 pod. such interest by a gift from the hus- band l)ecanie her separate estate, and is afterwards converted by the hus- band to his own use. Richardson v. Hutchins, 68 Tex. 81, 3 vS. W. 276. The profits made in commercial transactions carried on by husVjand or wife are community propert}', though the capital of the business is the wife's separate estate. Mitchell V. Mitchell, 80 Tex. loi, 15 S. W 705. The rents of separate real estate of a married woman are community propert)-. Shefflin v. Small, 23 vS. W. 432; Chaffe V. Mcintosh, 36 An. 824; Webb V. Peet, 7 .'\n. 92; Wilco.x v. Henderson, 9 An. 347. .So also of the separate estate of the husband. Glenn v. Elam, 3 An. 611; vSuc. of Steele, 23 An. 734. But if separate property be .situated in a common law state they form no part of the community. Sue. of Robinson, 23 An. 174. When a married woman not sepa- rated in property is engaged in trade she will be presumed to trade on the funds of the community, in the ab- sence of proof to the contrary-, and the assets in her hands y^xW be liable for community debts. Prendergrast v. Cassidy, 8 An. 96. Where, at the time of the mar- riage, the wife had a stock in trade Avhich, by the joint industry of her- self and husband, was increased, the .stock thus acquired was community propert}'. Werner v. Kelh', 9 .\n. 60. Where a married woman invests separate funds in a mercantile firm as a partner, as against creditors the interest in the partnership held by the wife will be deemed community property, and liable for the hus- band's debts. Middlebrook v. Zapp, 73 Tex. 29, 10 vS. W. 732; Epperson v. Jones, 65 Tex. 425; Mitchell v. Mitchell, 80 Tex. loi, 15 vS. W. 705; Morris v. Hastings, 70 Tex. 29, 7 vS. W. 649; Hamilton-Brown Shoe Co. v. Last- inger, 26 S. W. 924. Merchandise acquired by the wife with money borrowed on the faith of her separate property as security, is community property; the transac- tion is not equivalent to an exchange of the wife's separate property for merchandise. Heidenheimer v. McKeen, 63 Tex. 229. A married woman, even with the consent of her husband, cannot be- come entitled to the profits of the mercantile business arising from the investment of her separate funds. Green v. Ferguson, 62 Tex. 525; Wallace v. Finberg, 46 Tex. 44; Cox v. Miller, 54 Tex. 25. Crops raised on separate property are community property, and, so far as they enter into the purchase of other property it likewise belongs to the community. Conner v. Hawkins, 66 Tex. 639, 2 S. W. 520; Smith V. Bailey, 66 Tex. 553, I S. W. 627; Cleveland v. Cole, 65 Tex. 402; DeBlane v. Lynch, 23 Tex. 25; Forbes v. Dunham, 24 Tex. 611; Carr v. Tucker, 42 Tex. 51 § 20 BALLINGER ON COMMUNITY PROPERTY. [cHAP. IT. § 20. Money and Negotiable Paper. — Money and nego- tiable paper, according to the doctrine established in Wash- ington, seem to bear a different relation to the community from other property. Not that they do not belong to the community, as between the spouses and all others having full knowledge of the facts, but that, as between the one who is in possession thereof and one dealing in good faith and for value, they should be treated as the pro[)erty of such possessor. The very nature of such property and the rules of the law merchant, regarding commercial paper, require 330; Fitzpatrick v. Pope, 39 Tex. tended to inure to her separate use 315. and benefit. The increase of animals belongs Evans v. Opperman, 76 Tex. 293; to the community, although the ani- 13 S. W. 312. mals are separate property. The rights and interests under a Bonner v. Gill. 5 An. 629; Howard life insurance policy, taken out by V. York, 20 Tex. 670; Bateman v. an unmarried man, belongs to his Bateman, 25 Tex. 270; Ducrest v. separate estate, and do not fall into Bijeau, 8 Mart., N. S. 192; Frederic community under a .subsequent V. Frederic, 10 Mart., N. S. 188; marriage. If premiums have been Goner v. Husband,- 11 Rob. 527; see paid by the community, it is enti- Cartwright v. Cartwright, 18 Tex. tied to have them reimbursed to it 628. as expenditures for the benefit of A prize drawn upon a lottery the separate estate of the insured ticket, bought by the wife with her spouse. separate funds, is not acquired by Sue. of Mos.sman, 38 An. 219. gift, devise or descent, but is a fortu- But where insurance is taken by itious gain realized from the invest- the husband for the benefit of his ment of separate funds, and falls wife, it has been held that she takes into the community. the fund without liability to reim- Dickson v. Sanderson, 72 Tex., 10 burse the comnmnity for the pre- S. W. 535. miumspaidoutof community funds. Increase of Lands. — The "in- Sue. of Bofenschen, 29 An. 714; crease of lands " in Texas is held to Pilcher v. N. Y. Life Ins. Co. 33 be separate property. An. 322; Sue. of Herring, 26 An. Seeposi, ^.21, note. 326; Sue. of Clark, 27 An. 269; see A life insurance policy, payable Sue. of Richardson, 14 An. i. to the heirs of the assured, does not And a complete title is vested in form part of the community estate, her as separate paraphernal prop- Mullins V. Thompson, 51 Tex. 7. erty which cannot be reached by A policy taken out by the hus- the creditors of the comnmnit)-. band, payable to his wife, is in- Putnam v. N. Y. Life Ins. Co. 42 An. 739. 52 CHAP. II.] RENTS AND PROFITS.. § 21 that the innocent holder in such cases should take from the wife, if the possessor thereof, a good title. The true reason would seem to be, not tliat an exception is thus created to the rules of tlie community, but that the husband and the wife have, by their conduct, estopped themselves from claiming the property as community against such holder, rather than that the community pre- sumption is different in such cases from other classes of community property.' It is held, however, in Louisiana, that a note given in favor of the wife does not make it her separate property; it is still the property of the community.* The fact that the note is not taken in the usual course of business but in the name of the wife, is sufficient to put third parties upon inquiry.'' A note payable to a married woman is prima facie community property and will pass by the endorsement of the husband, not the wife.* ^21. Rents and Profits of Separate Property — When Community. — By reference to the Spanish law, it will be observed, that the rents, issues and profits of the separate property of either spouse are ganancial. The same is like- wise true in Louisiana, Texas and Idaho by statutory enact- ment. The decisions of these States are uniform in holding the rents, issues and profits of the separate property, to be oommon property, with certain exceptions which will be found in the notes, notably the "increase of lands" in Texas. In Idaho an exception is made in the statute in favor of the separate estate of the wife, where the instrument of convey- ance provides that the rents and profits thereof shall l>e applied to her sole and separate use. Without such reserva- tion in the deed or instrument of conveyance the rents and 1 .See Castor v. Peterson, 2 Wash. 127; Hemmingway v. Matthews, 10 208; 26 Pac. Rep. 223. Tex. 207. 2 La. C. C. 2369, 2371; Biegel v. ^ Metcalf v. Clark, 8 An. 286. Lange, 19 An. 112; to the same ■* Hemmingway v. Matthews, 10 effect is Wells v. Cockram, 13 Tex. Tex. 207; Wells v. Cocknim, 13 Tex. 128. 53 §21 BALLINGER ON COMMUNITY PKOPERTY. [('HAl'. II. profits of her se[)anite property falls into the eoinnuinity/ The earlier statutes of the other cominiinity possessed sub- stantially the same provision as now exists in Texas.' ^ See Appendix, Idaho. -Stiles V. Lord (Ari/.. ) ii Pac. Rep. 314. Generally. — The fruits, and reve- nues of the separate lands of the wife, even though the labor and other means used in their produc- tion are of her separate estate, are community property. Cleveland v. Cole, 65 Tex. 402; DeBlane v. Lynch, 23 Tex. 25; Forbes v. Dunham, 24 Tex. 611; Carr v. Tucker, 42 Tex. 330. Likewise lumber sawed at a mill, the separate property of the wife, by her slaves, and although out of timber cut from her separate lands. White v. Lynch, 26 Tex. 195. It cannot be objected that this rule will subject the corpjis of the wife's e.state to be diminished for her sup- port, while the proceeds or fruits of her property are enjoyed by her hus- band. DeBlane v. Lynch, 23 Tex. 25; White V. Lynch, 26 Tex. 195; Webb V. Feet, 7 An. 92; Werner v. Kelly, 9 An. 60; but see .Sue. of Waterer, 25 An. 210. The revenues of the husband's separate estate form part of the com- munit}-. Glenn v. Elam, 3 An. 611. The fruits of the paraphernal prop- erty, if administered by the husband or by the husband and wife indiffer- ently, whether natural, civil or the results of labor, belong to the con- jugal partnership, if there exists a community of gains. Pecquet v. Pecquet, 17 An. 204. Except, per- haps, the young of slaves ( Rowlev 54 V. Rowley, 19 La. 574); but they do not belong to the comnuinity unless the wife permit the husband to ad- minister them. Lambert v. Franchebois, 16 La. i. All kinds of fruit, natural, culti- vated or civil, produced during the usufruct belong to the usufructury with one exception, the children of slaves; they belong to the owner. La. C. C, 536-9, 525. This ex- ception was taken from the Roman and Spanish law (Inst. 2, 1. i, t. 37; p. 3, t. 31, 1. 23; La. C. C, 2363-71, 2375), which give the community the fruits of separate property. Childers v. Johnson, 6 An. 634; see 6 An. 689. Under the Spanish law the issue of a slave was community property, but under the old code of Louisiana remained paraphernal if the slave was paraphernal. See Frederick v. Frederick, 10 Mart., N. S. 188; Conor v. Hu.sband, 1 1 Rob. 526. By the Spanish law the slaves bought with the wife's money brought in marriage, dotal or para- phernal, became her separate prop- ert}-, whether her husband was insolvent or not at the dissolution of the marriage, yet the increase be- longed to the community. Ducrest v. Bijeau, 8 Mart., N. vS. 197; Borie v. Borie, 5 La. 89. But in Louisiana children born of .slaves which were separate property did not enter into the comminiity, either under the old or new code. Young V. Young, 5 An. 611. Same rule in Texas. Mclntyre v. Chap- (JHAl'. II.] RULli; IN CALIl'OKNIA. §22 § 22. Rule in California as to Rents and Profits of Wife's Separate Property. — The statute of 1850 incorpor- ated in the laws relating to the property rights of married pell, 4 Tex. 187; Love v. Robertson, 7 Tex. 6; 56 Am. Dec. 41. But the increase of animals do. Bonner v. Gill, 5 An. 629; Howard v. York, 20 Tex 670; Bateman v. Bateman, 25 Tex. 271. The profits of property held in trust after supplying the uses charged upon the propertj-, become common Fitzpatrick v. Pope, 39 Tex. 314. Profits arising from a mercantile business carried on by one or both of the spouses, although the capital invested be separate property, is community property. Cox. V. Miller, 54 Tex. 16; Marx V. Lange, 61 Tex. 547; Epperson v. Jones, 65 Tex. 425; Heidenheimer V. Felker, Tex. C. C. A. | 362; Wal- lace V. Finberg, 46 Tex. 44; Smith v. Bailey, 66 Tex. 554; Green v. Fer- guson, 62 Tex. 529; Cleveland v. Colo, 65 Tex. 402. The interest and gains arising during coverture from the invest- ment of separate funds of either spouse is common property. Braden v. Gose, 57 Tex. 37; Car- lisle v. Sonimer, 61 Tex. 124; see Hall v. Hall, 52 Tex. 298. Rents and issues of separate prop- erty set off to wife by valid decree remain separate. Young V. Willis, 63 Tex. 38S. Improvements. — The wife's right to improvements on property given by the sovereign to the husband, during marriage, is, under the Span- ish law, distinct from her right to the property itself; the augmenta- tion of value by the common labor alone makes part of the acquests.- The fact that the improvements were not made by purchase by them does not affect the principal. Hughe}' V. Barrow, 4 An. 24S. Improvements made after mar- riage on land which is the separate property of either spouse are to be accounted for as community prop- erty, unless it be proved that they were made with the separate means of one of the partners. Rice v. Rice, 21 Tex. 58. The measure of recompense for improvements is the enhanced value of the estate at the dissolution of the comnuinity (Sue. of Roth, 33 An. 848); hence this indebtednes.Si can not exceed the value of the enhance- ments. Sue. of Boyer, 36 An. 506. The community has no claim against the separate property of either spouse when its increase in value is due merely to a general rise in value or to the chances of trade. Bartoli v. Huguenard, 39 An. 412; Sue. of Foreman, 38 An. 700; Sue. of Breaux, 38 An. 728; Sue. of Roth, 33 An. 540. The improvements belong to the .separate estate; the increased value resulting from them is a debt to the community. It may be shown that the improvements were not due to community funds. Dillon V. Dillon, 35 An. 92. The buildings and improvements placed by the community on the wife's property cannot be seized by a connnunity creditor separate from the real estate. Whiteman v. LeBlanc, 28 An. 430. 55 §22 BALLINGER ON COMMUNITY PKOPERTY. [CHAP. II. persons in California, substantially the same provision as is possessed in Texas, but the Supreme Court of California in George v. Ransom,^ held the same to be unconstitutional; de- claring that the provision that the property acquired by the Monej- paid by the wife's father to her husband for improvements on land he had given her which he aft- erwards took back, giving in Heu a slave, belongs to the community. Lucket V. Lucket, 1 1 La. 246. Where improvements are made on the separate estate of one of the spouses during coverture, the com- munity can only be allowed the actual cost of the improvements, although the propert}' may have in- creased in value. Sue. of McClelland, 14 An. 762; Depas V. Riez, 2 An. 30; Childers v. Johnson, 6 An. 634; Rice v. Rice, 21 Tex. 58. If the husband use his separate funds to benefit and enrich the com- munity, it will constitute a debt of the community in favor of the hus- band or his succession to the amount of the fund used. Denegre v. Denegre, 30 An , part I, 275; Merricks Sue, 35 An. 296. Where a man before marriage pur- chased real estate, which increased in value afterwards, and upon which community funds were expended. Held, that it was separate property, which could be disposed of by will, but that his separate estate could be charged with the community money expended on it. Patton's Estate, Myr. Prob. 241; see also Moore v. Stancet, 36 An. 819; Conner v. Hawkins, 2 S. W. 520, 66 Tex. 639. " Increase of Lands." — An excep- tion is made in Texas denominated 56 "Increase of Lands." The word ' ' increase ' ' is not used in its etymo- logical sense, as applied to that which grows oiit of or is produced by cultivation from the land. DeBlane v. Lynch, 23 Tex. 25. No clear definition of the term increase of lands has as yet been declared by the Texas courts. For construction of this term see Carlisle v. Sommer, 61 Tex. 124; Braden v. Gose, 57 Tex. 41; Carr v. Tucker, 42 Tex. 330; DeGarca v. Galvan, 55 Tex. 56; DeBlane v. Lynch, supra; Portis v. Parker, 22 Tex. 700; Forbes v. Dunham, 24 Tex. 611; Bateman v. Bateman, 25 Tex. 270; Howard v. York, 20 Tex. 670; Mclntyre v. Chappell, 4 Tex. 187; Love V. Robertson, 7 Tex. 6, 56 Am. Dec. 41. The Supreme Court of Texas has often decided what is not "increase of the wife's lands," but has not de- cided what its increase is. Stringfellow v. Sorrels, 82 Tex. 277, 18 vS. W. 689. The increase of separate property by the early laws of Spain belonged to the spouse who brought it into marriage. B}- modern jurisprudence the increase is considered to result as much from the care and solicitude of the possessor as from nature, and hence form a part of the marital gains Ducrest v. Bijeau, 8 Mart., N. S. 198. See ante-note, ^ 19. 1 15 Cal. 323. CHAP. II.] RULE IN CALIFORNIA. § 23 wife by devise, bequest, etc., shall be her separate property, was intended as a protection to her as against the exercise of the right to divest her of the beneficial use of her separate property; that one object of the provision was to protect the wife from the improvidence and mismanagement of the hus- band. But this object would wholly fail, in many instances, if the estate of the wife were reduced to a mere reversionary interest, to be of no avail to her except in the contingency of her surviving her husband. The provisions of the con- stitution of California under which this ruling was given was borrowed from and is the same as that of Texas, yet the courts of the latter State took the opposite, and, I believe, more rational view.^ § 23. Rule in California as to Rents and Profits of Wife's Separate Property — Continup:d. — The constitution was silent in regard to the separate property of the husband, so that the decision did not affect the law as to the rents, issues or profits of the husband's separate property falling into community. The same judge who wrote the majority opinion in George v. Ransom, supra, subsequently in Lewis v. Lewisj^ declared the wife entitled to a community interest in the gains made during coverture of the separate property of the husband, on his decease. This decision has been said to be an incorrect enunciation of the law of California at the time when rendered, but the contrar}', nevertheless, is true. The decision in George v. Ransom, as before stated, only affected the separate property of the wife, and did not have the effect to annul the law then in force as to the rents, issues and profits of the husband's separate property being com- mon, hence the latter case was correctly decided as the law then stood. Yet it is true that subsequently this law was amended, making the rents, issues and profits of the separate ' See Selover v. Am. R. C. Co , 7 Johns, 24 CaL 98; Beaudry v. Felch, Cal. 273; Snyder v. Webb, 3 Cal. 83; 47 CaL 183. Spear v. Ward, 20 CaL 674; Lewis v. - 18 CaL 659. 57 § 25 BALLINGER ON COMMUNITY PROPERTY. [CHAP. II. property of either spouse tlie separate property of that one to whom the separate estate belonged.' § 24. Modification of the Spanish Law. — All the States except Louisiana, Texas and Idaho have modified the com- munity system to conform to the present law as now existing on this subject in California.'' These modifications of the Spanish law and the adjudications thereunder have created such confusion on this subject that no exact rule can be as- serted by which it can be known what are in all cases rents, issues or profits of the separate property of the spouses, or when they are separate and when communit3^ The court in Lake v. Lake, supra, remarking on this subject, said : " But the question arises, what are properly rents, issues and profits under the facts proved? The contention in this cause comes as to the proper solution of this query. The subject is beset with difficulties, which must be met as the cases present themselves, and each must be decided upon ils own peculiar facts." Which amounts to a confession that each particular case is a rule unto itself, and that there is no rule of decision on the general principles governing the law thereof.^ § 25. Public Lands — Acquisition of — When Commu- nity. — It has been a vexed question in the courts, and ^ See Estate of Higgins, 65 Cal. 407; eiiden, i Ariz. 346: "The rents and Lewis V. Johns, 24 Cal. 98; Lake v. profits of the separate estate of a Lake, iSNev, 361; Beaudry V. Felch, married woman, accruing during 47 Cal. 183; Smith v. vSmith, 12 Cal. coverture, are her separate estate; 224. Compare, Lewis v. Lewis, 18 and, if she invests such rents and Cal. 654; Martin v. Martin, 52 Cal. profits in other real property, it is 235. her separate estate." ^ See Appendix. In the same term of court, in an- ' The statute of 1 865 of Nevada re- other case (WofFenden v. Charou- tained the rents, issues and profits lean, i Ariz. 346), the same question of the separate property as separate was again considered, and again this estate. court decided that the rents and Lake v. Lake, iS Nev. 361, 4 Pac. profits of the separate estate of a 711. married woman accruing during The Supreme Court of Arizona, in covertixre are as absolutely hers as Woffenden v. Charouleau, 1 1 Pac. the property of which they are the 117, said, citing Charouleau v. Woff- fruits. 58 CHAP. 11. J ACQUISITION OF IMI'.LIC LANDS. § 25 their adjiulicutions havo been clouded with some uncer- tainty, as to when public lands, acquired from the govern- ment, become community, and wiien separate property- Upon a close examination ot the authorities touching this sulyect, it is found that there is little or no divergence, in reality. The diti'erences may be predicated mainly upon the different conditions and circumstances attending the acquisition of title from the government. It may be fairly said, that the criterion by which to deter- mine whether the acquisition of such lands constitutes them community or separate pro})erty, is as to whetiier the title conveyed by the government is onerous or lucrative. If the former, the lands are in community, if the latter, they are the separate property of the donee or grantee. In other words, the question is, whether the grant is a inirchase or a donation. The Spanish law recognized a grant of land from the king to the husband, in remuneration or compensation for ser- vices performed b}^ him, as no part of the community prop- erty. Says Escriclie:^ '"Remunerative or compensatory donations which are made to one of the consorts for his or her individual merits, form no part of the community estate, and that which the husband acquires by military service, and the rewards bestowed upon him by the govern- ment for such services, is his separate property."' The Supreme Court of Louisiana, following the Spanish law, treated such grants as the separate property of the husband where the same was a pure donation, unaccompanied with onerous conditions.'^ ' Diccionario de Legislacion, p. Roquier v. Roquier, 5 Mart. N. S, 367, 98; 16 Am. Dec, and note, 186. See - See Fisk v. Flores, 43 Tex. 340; Sexton v. McGill, 2 An. 190; Hughey Amesv. Hubby, 49 Tex. 710; Kircher v. Barrow, 4 An. 248; Barbet v. V. Murray, 54 Fed. Rep. 623. Langlois, 5 An. 212; Sue. of Mor- ^ Gayoso v. Garcia, i Mart. N. S. gan, 12 An. 153; Fuselier v. Masse, 324; F'rique v. Hopkins, 4 Mart. N. 19 La. 329. S. 214; Pargoud v. Pace, 10 An. 613; Improvements made on such lands 59 § 27 BALLINGER ON COMMUNITY PROPERTY. [cHAP. II. § 26. Rule in California. — The Supreme Court of Cali- fornia, in Scott V. Ward,^ held that Mexican land grants possessed no sucli onerous conditions as would prevent them from becoming the separate propert}?^ of the grantee ; that they were in effect donations, following the reasoning of the Louisiana cases, and this doctrine was re-asserted and affirmed in Noe v. CanU The same court held that a dona- tion, by both the civil and common law, may be accom- panied with conditions, the performance of which may be essential to the enjoyment of the property donated ; but the conditions do not necessarily make a transaction a sale or change the transaction from tliat of donation to one of con- tract or purchase. Under the Spanish and Mexican law a more comprehensive meaning was attached to the term "donation" than that given to it in our jurisprudence.^ § 27. Rule in Texas. — In Nixon v. Cattle Co.* Mr. Justice Gains said, " The difficulty of determining whether the cer- tificate should be treated as community properly or separate property grows not out of the law of the case, but out of the uncertainty as to the facts. The face of the certificate indi- cates that it was granted b}^ virtue of the tenth section of the ordinance of December 5, 1835, passed at San Filipe. That section offered a bounty of tliree hundred and twenty acres of land for volunteers in the auxiliary corps for three months' service."* The right acquired by virtue of that ordi- nance was clearly acquired by onerous title, and belonged to the volunteer and his wife as common property, provided he had a wife at the time of the acquisition. The donations granted to those who participated in the battle of San by the spouses, however, are com- Jones, i Cal. 514; Fuller v. Fergu- mon property. son, 26 Cal. 547; Wilson v. Castro, Roquier v. Roquier, supra; 31 Cal. 120; Hughey v. Barrow, 4 Hughey v. Barrow, supra. An. 248; Wilkinson v. Am. Iron ' 13 Cal. 475. M. Co. 20 Mo. 122. " 14 Cal. 577. ■• 84 Tex. 561, 19 S. W. 560. ' See Noe v. Card, and Scott v. " Pasch. Dig. Art. 4039. Ward, supra. See also Panaud v. 60 CHAP. II.] RULE IN TEXAS. § 28 Jacinto and to others bv the act of December 31, 183G, were not in discharge of any legal obligation, but were a gratuitous bounty' extended b}' the republic in grateful recognition for services which had already been rendered. The latter are properly held the separate propert}^ of ihe grantee." ' Maxey, Judge, in Kircher v. 31urrayj^ said, after discussing the Texas cases, "It may be easily understood how a donation in remuneration or compensation for ser- vices rendered by one of the spouses, and how property acquired b}"" the husband as a reward for militar}' services, are the separate estate of the donee, wlien there was no prior contract between the parties for remuneration, and no pre- vious obligation resting upon the donor to make the dona- tion or reward the soldier; and it is believed that when this distinction is observed, there will be found to exist no real conflict between the authorities. It is upon this principle, it is thought by the court, that grants made by the king of Spain to one of the spouses were held to be separate prop- erty,^ and that certain Mexican grants made to the husband in California, prior to her admission as a State of the Union, were construed to be simple donations, and therefore no part of the community estate.* In this connection it may be noted that the courts of this State (Texas) have uni- forml}' regarded lands patented by virtue of headright certi- ficates,^ lands acquired by the husband through the grant of pre-emption,* and grants of lands to married men under the colonization laws,' as community property." § 28. Rule in Texas — Continued. — On this subject the language of Chief Justice Hemphill, in Yates v. Houston,^ is instructive. " There is," said he, " in one respect, a distinction 1 Ames V. Hubby, 49 Tex. 705. ■• Scott v. Ward, 13 Cal. 459. See Fisk v. Flores, 43 Tex. 340; •'• Parker v. Chance, 11 Tex. 513. Goldsmith v. Herndon, 33 Tex. 706; ° Allen v. Harper, 19 Tex. 501. Todd V. Masterson, 61 Tex. 622. • Yates v. Houston, 3 Tex. 433; - 54 Fed. Rep. 623. Wilkinson v. Wilkinson, 2oTex. 237. 3 Frique v. Hopkins, 4 Mart. N. * 3 Texas, 452. S. 212. 61 § 28 BALLINGER ON COMMUNITY I'ROPERTY. [CHAP. II. between tlie character of the grants under the colonization law of the empire and those under the subsequent laws of the State. In the former there does not appear to have been any fixed price in money to be paid for the land itself as the consideration, or one of the considerations, for the grant ; and it has been contended that the grants under the former were pure donations, and consequently the separate property of the head of the family to whom the donation was made. In opposition to this view it has been urged that the land was acquired by onerous and not lucrative title, and this, princi- pally, on the following grounds, viz.: 1st. That the com- missioner's fees, office fees, stamp paper, surveying fees, etc., amounting to a considerable sum, were required by law to be paid before the colonist could be put in possession of the land. 2d. An onerous condition, of cultivating the land within two years, was attached to the grant, and it should therefore be deemed a recompense for services rendered by the matrimonial community, and as their reward for settling up the wild and uncultivated wastes of a new country. * * * It would seem that where the government requires, by public order, a sum so considerable in amount to be paid before the issue of the title, and as an indispensable condition to its de- livery, that the grant could not justly be regarded as a pure donation. Nor can it be regarded as bought with the sepa- rate funds of tiie husband. There is no provision of law which requires or authorizes the separate property of the head of the famil}^ to be expended for this purpose; and, where there is no showing to the contrary, the presumption always is that the advances proceed from the funds of the commu- nity, and purchases are made for its benefit and augmenta- tion. The fact that the grant was made to the head of the family is an immaterial circumstance, provided it was founded on considerations wdiich impress upon it the char- acter of a purchase, or of property acquired by onerous title. * * * It cannot be supposed that a legislator under theSpanisli system would intend that in a grant to be made 62 CHAP. II.] LAW AM) TESTS TO T.K AI'I'LIKD. § 29 to a family, consisting of a husband, wife and cliildren, and this on onerous conditions, that the rights of the wife, as partner in the conjugal society, should be disregarded. The presumptions of law strongly favor the rights of the com- munity, and they should have due force where the law is not too clear to exclude their operation." § 29. Policy of the Law and Tests to Be Applied. — The following language of Justice Bonner, in Hodge v. Donald,^ clearly states the distinguishing tests deducible from the earlier cases in Texas: "The policy of Texas has ever been to induce by grants of land both married and single men to immigrate and become citizens. In consonance with the objects sought, greater inducements have been held out to the former class, as shown by the increased amount of land given. Although the certificate of title, under the law, issued to the husband as the head of the family, yet in considera- tion of the joint toils, privations and dangers undergone by the wife also, it has been repeatedly decided by this court that under our system it would constitute common property of the husband and wife, one iialf of which, charged with the debts of the community, would, on the death of the wife, descend to her children.^ This accords with the general })olicy of our law upon the subject of marital rights, and an exception to it should not be allowed unless the facts of the particular case clearly demand it. In some cases where the wife died soon after her arrival into Texas, the subsequent grant to the husband has been held to be his separate })rop- erty, and not community, as in \Vebb v. Webb:' These cases will be found to be those in which the death of the wife oc- curred before there had been sutficient compliance with the conditions u})on which the land was offered to have then entitled either the husband or the wife to demand it, upon equitable principles or under the terms of the law; and the 1 55 Xex. 349. Wilkinson v. Wilkinson, 20 Tex. = Yates V. Houston, 3 Tex. 433; 237. « 15 Tex. 274. 63 § 29 BALLINGER ON COMMUNITY PROPERTY. [OHAP. II. subsequent grant to the husband was held to be his separate property, upon the ground that the consideration i)assed from him alone, and not from both him and the deceased wife. In other cases, in which the death of the wife occurred subsequently to a substantial compliance with the conditions upon which the grant was offered, it has been decided that it was community property.^ The true test, as we deduce from the authorities, is this: First. Did the surviving hus- 1 Yates V. Houston, 3 Tex. 433; Wilkinson v. Wilkinson, 20 Tex. 237- Generally. — Porter v. Chronister, 58 Tex. 53; Manchaca v. Field, 62 Tex. 135. See generally Cannon v. Murphy, 31 Tex 405-6; McMasters V. Mills, 30 Tex. 591-5; Walters v. Jewett, 28 Tex. 199-200; Babb v. Carroll, 21 Tex. 766; Wheat v. Owens, 15 Tex. 243; Allen v. Har- per, 19 Tex 502; Edwards V.James, 7 Tex. 3S2; Hoyt v. Hammekin, 14 Howard, 346-351; Gardner v. Burk- hart, 23 S. W. 709; Hensel v. Kegan, 79 Tex. 347, 15 S. W. 275. Pension money paid to a veteran of the civil war is a donation from the government in grateful recogni- tion of his services, and is his sepa- rate property, though he did not receive it until after his marriage. Johnson v. Johnson, 23 S. W. 1022. The grant of a head right certifi- cate in 1888 to a married man, re- citing that fact and the date of his emigration to Texas, does not con- stitute such certificate community property when the grantee had emi- grated with his children and had married subsequent to his arrival in Texas, although the parties were living together as husband and wife at the date of the certificate. Boone v. Hulsey, 71 Tex. 176, 9 S. W. 531. 64 If his wife had emigrated with him the property would have been treated as community property, but where his famil}- consisted solely of his children it was his separate prop- erty. Boone v. Hulsey, supra. In Mills V. Brown, 69 Tex. 246, 6 S. W. 612, it was said of pre-emption entries that, "to obtain 160 acres the settlement must be made by a family, and when the family has for its head a husband and wife, the right to the land is acquired by their joint settlement; it is a product of their joint efforts and labor, and hence the communitj- property of the marriage. The same rule obtains as in the case of head-right certifi- cates granted to a party by reason of his being a married man. The fact that a portion of the fees for the acquisition of the title to the prop- erty were advanced by the wife would not deprive the property- of its community character, she would thereby become a creditor of the community to the extent of her sepa- rate funds advanced, and her claim would be a charge upon the propert}- saved to the marital partnership." Land granted by virtue of a bounty land certificate, for services rendered by the patentee in the army of the Republic of Texas, be- fore his marriage, is the separate CHAP. II.] RULE DEDUCED. § 30 band receive tlie grant by reason of such innnioration, set- tlement, residence, etc., on his own part as would, under the law, entitle him to it, inde})endently of the right based upon his status as a married man at the date of the death of the wife? If so, it was liis separate property. Second. Was the increased quantity over that to wliich a single man, not the head of a family, was entitled, given to the surviving hus- band by reason of the fact that, at the date of the deatli of the wife, he was then a married nian? If so, it was com- munity property of the husband and the deceased wife, her half interest in which, subject to the debts of the commu- nity, would descend to her children." § 30. Rule Deduced. — From tiie foregoing cases we find the rule to be, in determining whether a grant of public land falls into the community, or becomes the separate estate of the grantee, that it is necessary to determine whether the grant constitutes a donation merely. If so, it is separate property. If, however, it is given in pursuance of a contract or obligation, not merely moral on the i)art of the donor, it is in ettect a purcliase and hence community property. In conformity with these principles it lias been held in Idaho that mining properly acquired under the laws of the United States during coverture is community property.' . property of the patentee, although veyance by the mortgagee transfer- the certificate was not issued till ring the apparent and legal title to after his marriage. the wife of the pre-eniptioner, un- Parker v. Newberry, S3 Tex. 428, ited the legal and equitable title 18 S. W. 815. where it properly belonged, namely, Where the land certificate is is- in the community, sued after divorce of the spouses, Pratt v. Goodwin, 61 Tex. 334. each member of the community The purchaser from a woman, to becomes entitled to one-half of the whom patent for land sold, issued land. after the death of her husband, Goode V. Jasper, 71 Tex. 48, 9 S. takes title, as against the heirs of W. 132. the deceased husband, unaffected Where the title of a pre-emptioner by his community interest, in the was inchoate and the patent after- absence of notice of its existence, wards issued to another, from whom Wren v. Peel, 64 Tex. 374. the pre-emptioner had acquired a 1 jacobson v Mining Co , 2 Idaho, loan as securit-s' therefor, the con- S63, 28 Pac. Rep. 396. 65 §ol F.ALLINGKK ON COMMUNITY I'KOPKK'J V. [OIAP. TI. ^ 'U. Rule in Washington. — And in Washington, that lands [)atented by the husband under tlie pre-emption laws,' and lands acquired Ijy the wife under the timber land act, are communit}' })ro{)erty. The court, in holding timber lands, acquired during coverture by the wife, to be com- munity j)roperty, in the case of Gardner v. Port Blakely Mill Co.^ also declared that the rules and construc- tion of the land department upon the acts of Congress, control and direct the course of title, to the extent of making the same the separate property of the spouse to whom granted. A\'ith all due respect for the learn- ing of the judges concurring in that opinion, I am cou- strai)ied to believe, that the doctrine there advanced cannot be sustained on reason or authority. The dissenting opinion of Dunbar, Chief Justice, is, in my judgment, the better law. A different rule was laid down in the case of the 1 Philbrick v. Andrews. 8 Wash. 8. - Gardner v. Port Blakely Mill Co. 8 Wash I . On the principles announced here- tofore, it is believed, that lands pat- ented under soldiers and homestead entries, should be treated as com- munity property where the patentee is married. I find, however, no ad- judications directly covering this question. Acquisition under United States town,site act is conimunit}- property. Morgan v. Lones, 78 Cal. 5S. Where initiatory right to pre empt was acquired before marriage but proof and purchase made subse- quent, the lands are .separate prop- erty. Harris v. Harris, 71 Cal. 314. Lands entered in the name of the wife during marriage, but patented in the name of the hu.sband after her death, have been held to belong to the comnmnity. Simien v. Perrodin, 35 An. 935. And probably lands entered by the husband during coverture and patented by him after the death of the wife, the final proof ha\'ing been made before her death, will by rela- tion of date of patent to time of final proof, constitute the lands community property. vSee Philbrick v. A n d r e w s, S Wash 8. The law is settled in Texas that land granted by the republic to one because of his being a married man, is community property of his wife and himself, though the grant bear date after her death. Caruth v (irig,sb)-, 57 Tex. 259; Manchaca v Field, 62 Tex. 135; Duncan v. Bickford, 83 Tex. 322, 18 vS. W 59S; Hodge V. Donald, 55 Tex 349. Wife's share in a donation claim is separate property. Alexander v. Knox, 6 Sawyer, 54. CUM', n.] 1NTKI{K,ST OF SPOUSES. § 32 Presidio Mining Co. v. Bullis,^ a case somewhat similar. The court there held that school lands acquired hy purchase I'rom the State are suhject to the same presumption that the\' are a part of the community estate, that would obtain if the title had been acquired from an individual. The fact thiit the State, at the time of the purchase, proliibited the husband from acquiring luore school land than he had already aj){)lied for, and that on account of his having applied for it in his wife's name, would not, witliout other evidence, be sufficient to divest the land thus titled to the wife of its community character. 5; 32. Interest of Spouses in Community Property. — 'J'he law invests each of the spouses with the one-half of the community property, but neither member owns any specific part thereof during coverture, nor after the dissolution of the marriage, until a partition has been declared. They cannot say they are reciprocally possessed, during coverture, of an undivided half interest in the estate, nor be considered tenants in common thereof.'-' The husband's interest in the community {)roperty is tangible and vested, and is in no sense in expectancy. It is, however, a matter of consider- able {)erplexity to determine the nature and extent of the wife's interest in the community estate during coverture. "The wife," says Febrero,^ "is clothed with the revocable and feigned dominion and possession of one-half of the property acquired by the husband during the marriage; but, after his death, it is transferred to her effectively and irrevocably, so that, by his decease, she is constituted the absolute owner in property and possession of the half which he left her. The husband needs not the dissolution of the marriage to consti- tute him the real and veritable owner of all the gananciales, since, even during marriage, he has in effect the irrevocable dominion, and he may administer, exchange, and, although there be neither castre'nses nor quasi castrenses acquired by 1 68 Tex. 581, 4 S. W. 860. 361; Good v. Coombs, 28 Tex. 51. - See Ryan v. Ferguson, 3 Wa.sh. ^ i Feb. Mej, 225, rrNJTV property, [chap. ir. § 40. Effect of Conveyance to Wife. — Lauds [>urchased during the existence of the community, although the title be taken in the name of the wife, still the property as much belonos to the community as if it stood in the name of the husband, unless she can prove that the purchases were made with her own mone}', or the property given in payment of a debt owing to her in lier own right. The title being in her name does not raise even a presumption in her favor.' As the husband stands as the repi'esentative of the commu- nity in the management of its affairs, a purchase in the name of the wife is not in the ordinary course of business, and consequently would be sufficient to put third persons upon inquiry as to the nature of the title." Where real property has been conveyed to a married woman by a deed which sliows on its face a consideration 1 vSmalley v. Lawrence, 9 Rob. her own name, and according to the 211; Ford V. Ford, i La. 201; David- act (deed), with her separate funds, son V. Stewart, 10 La. An. 146; Do- does not belong to the community, minguez V. Lee, 17 An, 295; Comeau Drum v. Kleinman, 31 An. 126; V. Fontenot, 19 An. 406; Fisher v. Kerwin v. Hibernia Ins. Co., 35 An. Gordy, 2 An. 762; Provost v. Dela- 33; Moore v. vStancel, 36 An. 819-22; houssaye, 5 An. 600; Prendergast v. Stewart v. Mix, 30 An. 1036; Burns Cassidy, 8 An. 96; Webb v. Peet, 7 v. Thompson, 39 An. 377; DeSent- An. 92; Andrew v. Bradley, to An. uianat v. Soiile, 33 An. 609; Bachino 606; Forbes v. Forbes, 11 An. 376; v. Coste, 35 An. 570. Pearson v. Ricker, 15 An. 119; Tally Lands entered in wdfe's name dur- V. Heffner, 29 An. 583. ing marriage, but patented in hus- Right of husband or wife to ac- band's name after her death, still quire property during marriage b}' belong to the couununity. purchase exists only as an exception Seimen v. Perrodin, 35 An. 931. to the general rule. Presidio M. Co. v. BuUis, 68 Alverson v. Jones, 10 Cal. 9. Tex. 581, 4 S. W. 860; King v. Hol- That the deed is made to the wife den, 16 S. W. 898; Swink v. League, does not constitute even notice that 25 S. W. S07. the property is her separate propert}'. Lands purchased in the name of Wallace v. Campbell, 54 Tex. 87. the wife and partly paid for with '-' Metcalf v. Clark, 8 An. 286. her paraphernal funds under the ad- It will be presumed that lauds con- ministration of the husband, and veyed to the wife during coverture partly with the funds of the commu- is community property. nity, fall into the community. Plnn V.Williamson, 75 Tex. 336. Burns v. Thompson, i So. Rep. 91 1. Property bought by the wife in 74 CPFAr II.] KFKKCT OF (.ONVKYANTK TO HoTH. Ml paid by lier, the legal presumption is that the projiertv was purchased with comiiiunity funds, and became the commu- nity property of the husband and wife;' unless the deed shows on its face an accjuisition by one of tlie ways for ac- quiring separate [)roperty.'' ^ 41. Effect of Conveyance to Both Spouses. — A con- veyance to both spouses would, of course, if onerous, cause ' Schuyler v. Broughton, 70 Cal. the husband will be presumed to be 283; Rilev \-. Pehl, 23 Cal. 70; community property, unless shown Ramsdell v. Fuller, 2S Cal. 3S, 87 to have been bought with his sepa- Am. Dec. 103; Peck v. Vandenberg, rate funds and for his separate use. 30 Cal. 11; Peck v. Brummagim. 31 vSuc. of Rhodes, 39 An. 475; Moore Cal. 440; Vassault v. Austin, 36 Cal. v. Stancel, 36 An. 819; LeBlauc v. 691; Talley v. Heffner, 29 An. 583; LeBlanc, 20 An. 206; Comeau v. Huston V. Curl, 8 Tex. 240; Bu- P'ontenot, 19 La. 406. chanan's P^state, 8 Cal 507; Sue. of Where the husband purchases in Planchet, 29 An. 520; Zimpleman v. his name property during the coui- Robb, 53 Tex. 274; Gwjnn v. Diers- munity for cash, and makes no sen, 36 Pac. 103; declaration of intention to acquire - Lewis V. Johns, 24 Cal. 98. the same for his separate estate nor Real property in the name of a that the funds used were his sepa- married woman belongs to the com- rate means; the property falls into munity, and she cannot maintain a the communit}'. petitor)- action to recover it without Dunham v. Williams, 32 An. 162. alleging and showing that she ac- Under the amendment of .section quired the community interest in 164 of the California C. C. of March the property since its dissolution. 3rd, 1893, whenever any property is Sakstrang v. Betz, 24 An. 295. convened to a married woman by an Purchase b}- the hu.sband from his instrument in writing, the presump- mother is not different in legal effect tion is that the title is thereby vested from one from a stranger. In either in her as her separate property, case the property is community. And when the conveyance is to Sue. of p-ortin, 10 An. 739. both hu.sband and wife, the pre- Where there is no separation of sumption is that they take as ten- property between husband and wife, ants in common, unless the contrary a purchase by the wife must be con- is expressed in the instrument. This sidered as a purchase by the com- munity. Andrews v. Bradley, 10 An. 606. Property acquired by husband and wife is community property statute reverses the rule of the com- munity system as applied under the Spanish law and under all the com- munity .states. Where land is conveyed to the although the legal title be in the wife "as her .separate property and name of a third party as trustee. estate," the title vests in her and White V. Harris, 19 vS. W. 1077. may be conveyed by her. Property bought in the name of Shanahan v. Crompton, 92 Cal. 9. 75 § 42 P.ALLINGER ON COMMUNITY PROPERTY. [cHAP. II. the property to fall into community, unless a joint tenancy or tenancy in common be thereby created.' A deed of gift to Inisband and wife is held in Texas to create a tenancy in common in the lands conveyed, and that each spouse owns an undivided half interest therein as separate property.'^ The doctrine here asserted is questionable, since joint lucra- tive titles have been treated as community property under the S})anish law, and are declared so by statute in Louisiana. They have also been thus defined in Smith v. Strahan, 16 Tex! 324.^ § 42. Contributions of the Spouses in Labor, Etc. — It is a matter of indifference to the law which spouse contrib- utes the greatest quota of labor, skill or industry in the acquisition of the common gains, and this doctrine is sup- ported on sound policy and good reason, since the waging of a contest between the spouses as to which one was tlie greater contributor to the marital gains would tend to overthrow that liarmony necessary to be maintained in tlie nuirriage state. It may occur that one of the consorts contributes nothing in labor, skill or industry to the production of the gains. From infirmity, sickness, accident or some otiier reason, one member may be disabled from lending aid either physical or mental to the acquisition of property, yet the law, notwithstanding this, so beneficent is it in its provisions, does not cut oft' the disabled, or even indolent, spouse from sharing equally in the common property. -Porter, .Justice, in Cole's \\ idow v. His Executors,^ speaking upon this subject, said: "There are few, we believe, who think, at the present stage of society, that the wife contributes equally with the husband to the acquisition of property. If such cases exist ' See Tally v. Heffner, 29 An. 5S3; 21 Tex. 232; Escriche, Title, Bienes. Marlow v. Barlew, 53 Cal. 456; Nev. Gananciales C. L. 1873, i> 158; Cal. C. C. 'i 161. For doctrine of presumptions and ■■^ Rogan V. Williams, 63 Tex. 123; rights of purchasers and creditors, Bradley v. Love, 60 Tex. 473. see posf, these titles. •' See also Dunham v. Chatham, •* 7 Mart. N. S. 41. 76 CHAP. II.] DUTY OF SPOUSES. § 43 they are exceptions to the rule, and yet in this State neither idleness, Avasteful habits, nor moral or physical incapacity, would deprive the wife of an equal share in the acquests and gains; for our code declares that eveiy marriage in Louis- iana superinduces of right partnership or community in all acquisitions. Such also was the rule in Spain."' There can be uo reckoning between the spouses, inter sese, as to the quantum of labor bestowed or capital of either withdrawn during the existence of the community.^ Leonard, Justice, in Lake v. Lake,^ said, "If it (property) is acquired after marriage by tlie efforts of the husband alone, but not by gift, devise or descent, or by exchange of his individual property, or from the rents, issues or profits of his separate estate, it belongs to the community. Such propert}'" is common, although the wife neither lifts a finger nor ad- vance's an idea in aid of her husband. She mav be a burden and a detriment in every way, or she may absent herself from the scene of his labors, know nothing of his business, and do nothing for him; still it is common." The matrimonial re- lation when once formed under the law continues until ter- minated by death or judicial decree. Along with it, as a legal concomitant, follows the community of gains, and no matter whether the spouses dwell together in the same State, or apart in different States; whether one is se[)arate from the other with or without consent, or is faithful or unfaithful to the marriage vows, the property acquired in the manner pointed out by the statute becomes alike common.' ^ 4o. Duty of Spouses to Contribute. — It is, however, the duty of each spouse, altliough moral not legal, to con- tribute his or her industry', energy and intelligence to the community." Said the court in Yatea v. Houston,^ quoting ' Merlins Rep. verbo coinnuuiaute, " Bartoli v. Huguenard, 39 An. vol. 2, p. 548; Feb. p. 2, lib. i, cap. 416, 2 So. Rep. 196. 4. P I, n. 3. 3 Nev. 4 P. R. 724-5- See editor's notes 4 West Coast ■* Routh v. Routli, 57 Tex. 589. Rep. 305, 308. ■• Abbott V. Wetherby, 6 Wash 513. « 3 Tex. 433. 77 § 44 BALLINGER ON COMMUNITY I'HOI'KKTV. [cHAP. II. from Escriche, Dicciouario, p. 7o: '' liy the priiiei[)les of the law tlieii existing (Spanish) the results of the labor of the partners, and each of them, become common J)ro[)ert3^ It is of no consequence whether one contribute more than the other to the acquisitions or whether it l)e procured by the labor and traffic of one alone, it is common to both b}' virtue of the subsisting partnership, through wliich their acquisitions are reci[)rocally communicated." ' The priiciple which lies at the foundation of the whole system of community i)ro|)erty is"^ that whatever is acquired by the joint efforts of husband and wife shall be their com- mon property. It is true that in a |)articular case satisfac- tory proof might be made that the wife contributed nothing to the acquisitions; or, on the otiier hand, that the acquisi- tions of property were owing wholly to the wife's industry. But from the very nature of the marriage relation, the law cannot permit inquiries into such matters. The law, there- fore, conclusively presumes that whatever is acquired, except by gift, devise or descent, or by the exchange of one kind of property for another kind, is acquired by their mutual in- dustry. § 44. Confusion of Separate with Community Property, Effect of. — When the separate property or funds of either spouse is intermixed or commingled with community prop- erty, so that the separate property has lost its identity and cannot be clearly traced or segregated, the community, being the paramount estate, draws the whole mass to it and it be- comes community propert3\ The general rule laid down by the courts is, that such confusion works a forfeiture of the separate character of the property so com mingled."' But where ' See also Chapman v. Allen, 15 '^ DeBlaiie v. Lynch, 23 Tex. 29. Tex. 278; Higgins v. Johnson, 20 ^ Yesler v. Hochstettler, 4 Wash. Tex. 389, 70 Am. Dec. 394; Lewis v. 356; see also 2 Kent's Com. 363-5; Lewis, 18 Cal. 604; Isaacson v. 2 Bl. Com. 405. Mertz, 33 An. 595; Wheat v. Owens. 15 Tex. 242. 78 CHAP. II.] CONFUSION OF SEPARATE MONEYS, ETC. § 45 tlie coiiiinunity interest is inconsiderable in property with whicli it has been intermingled, the community will not draw to it the separate estate and subject it to levy and sale for community debts, but the community interest therein may be reached in satisfaction thereof.' In order that the proi)erty may maintain its status as separate estate, it is not necessary that it should be j)reserved in specie oi' in kind; yet, w'hen it has undergone muiatious and assumetl other conditions, it is absolutely necessary in order to maintain its character as separate property that it be clearly ti-aced and located; and when money belonging to the wife has been so commingled witli the funds of her husband, engaged in numerous business transactions and speculations, so that it is impossible to say that :iny part j)assed into a j)articular tract ot land j)urchased by the husband, such land is com- munity })roperty."^ § 45. Confusion of Separate Moneys and Profits — Rule when Willful. — Jt was Ik^UI, however, in Moore v. Jones,^ that moneys of the wife de[)osited with the husband and mingled with the moneys of other persons in his possession, do not los(^ their separate character and l:)ecome community, since money has no "ear marks" and its commingling with otlier funds in the possession of the same person, treated as a trustee, can injure no one.* Profits earned by commingling of common and separate funds so as to destroy their identity, it not appearing what proportion of })rofits belonged to each fund, will be considered as belonging to the community.' If profits made on sales of goods be mixed with the wife's sejja- rate money used in their purchase, the profits being commu- ' Parker v. Portis, 14 Tex 170 Philipowski v Spencer, 63 Tex. 604; •^ Diminick v. Dimmick, 95 Cal. Epperson v. Jones, 65 Tex. 425. 323; Smith V. Bailey, 66 Tex. 554; See Knowlton v. Mish, S Sawyer, .see Love v. Robertson, 7 Tex. 6; 625. Rose V. Houston, 11 Tex. 324; Hus- ' 63 Cal. 15 ton V. Curl, 8 Tex. 239, 58 Am. Dec. '' See 30 An. 275 no; Chapman v. Allen, i.s Tex. 27S; ■' In re Bauer, 79 Cal. 304; Smith V. Bailey, 66 Tex. 554. 79 § 47 ballinctp:r ox community property, [chap. ii. nity property, slie must be prepared to show how much of her own money entered into the purchase. The burden of proving this is upon her and not upon the creditors who seize the goods for the community debts.^ Where the husband has mingled the separate estate of the wife with his own or the funds of the community, so that it cannot be identified, or lias in some other way converted the same to his own use, his separate estate as well as the com- ]munity will be held subject to account to tlie wife."^ § 46. Burden of Proof when Property Claimed to be Separate. — In all this class of cases it is indispensible, to effect a segregation and identification of the separate prop- ert}"", that the proof establishing and tracing its separate character be clear, certain and satisfactory, and the burden of so distinguishing it is alwa^'s on the spouse claiming the property as separate; any other rule would imperil and over- tlirow the wdiole statutory community structure. § 47. Change of Domicile — Effect of. — The domicile of the wife is, in law, the domicile of the husband, and the domicile of the children is also that of the father. The domicile of the parents draws to it that of the infant chil- dren.^ The statute of the property rights of the husband and wife is a real statute, and prevails over the personal statute of the domicile, and if the husband and wife remove after their marriage, their subsequent acquisitions will, in the absence of an agreement to the contrary, be controlled and distributed by and under the laws of the country into ^ Epperson v. Jones, 65 Tex. 425; v. Thompson, 39 An. 377, i vSo. Rep. Smith V. Bailey, supra; Cleveland 916. V. Cole, 65 Tex. 402; see also Claflin See Diefeudorf v. Hopkins, 95 V. Pfeifer, 76 Tex. 469, 13 S. W. 483; Cal. 344. Middlebrook v. Zapp, 73 Tex. 29, 10 ^ Richardson v. Hutcliins. 68 Tex. S. W. 732; Jones v. Epperson, 69 81, 3 S. W. 276. Tex, 586, 7 S. W. 488; Morris v. ^ Russell v. Randolph, 11 Tex. Hastings, 70 Tex. 26, 7 S. W. 649; 460; Lacey v. Clements, 36 Tex. King V. Gilleland, 60 Tex. 271; 661; Hardy v. DeLeon, 5 Tex. 211; Schmeltz v. Garey, 49 Tex. 61; Burns Kashaw v. Kashaw, 3 Cal. 322. 80 CHAP. II.] EFFECT OF CHANGE OF DOMICILE. § 47 which they may remove.^ If a husband and wife acquire personal property in one State, and then remove with the same into a State in which the community law prevails, the law of the State where they lived when the property was acquired will govern as to whether it be separate or com- munity property. If by the laws of the foreign State it would be separate property, it would retain that character in its new domicile.^ And if the husband with the funds so accumulated in a foreign State purchase lands therewith in his new domicile, it will remain his separate property.^ The laws of the foreign State must, however, be proved to reach this result, as in the absence of all evidence they will be presumed to be the same as the laws of the State in which the new domicile has been acquired.* Real property acquired and situate in another State than that of the matri- monial domicile descends and is distributed according to the laws of that State.' If the wife lives in another State or country than that of the iuisband, this fact does not divest her of her interest in the community, for the husband's domicile is that of the wife." 1 Saulv. His Creditors, 5 Mart. N. Gale v. Da\'is, 4 Mart. 645. S. 569, 16 Am. Dec. 212; Sue. of •'' Estate of Higgins, 67 Cal. 458; Robinson, 23 An. 174; Packwood's Freeburger v. Gazzam, 5 Wash. 772. Sue. 12 Rob 334, 43 Am. Dec. 230; * Shumway v. Leakey, 67 Cal. 458. Cooper V. Colton, 6 An. 256; Gale ^ pritchard v. Citizens Bank, 8 L,a. V. Davis, 4 Mart. 645; LeBreton v. 1301, 28 Am. Dec. 132 Nouchet, 3. Mart. 60, 5 Am. Dec. •* Sue. of McKenna, 23 An. 369; 736; see Kraemer v. Kraemer, 52 Moore v. Thibodeaux, 4 An. 74; Cal. 302; I Burge Com. 27; ^'i 166- Cole's Widow v. Executors, 7 Mart. 176 Story's Conf of Laws, 183; N. S. 41; see Armorer v. Case, 9 An. Wharton's Conf. of Laws, 193-8; 288; Percy v Percy, 9 An. 185; Fisher v. Fisher, 2 An. 774. LeBreton v. Nouchet, 3 Mart. 60; 2 Kraemer v. Kraemer, 52 Cal. Murphy v. Murphy, 5 Mart 83; 302; Shumway v. Leakey, 67 Cal. Beard v. Knox, 5 Cal 257 458; Oliver v. Robertson, 41 Tex. Where at the time of marriage the 422; Penny V. Weston, 4 Rob. 165; parties did not contemplate residing see Duke v. Reed, 64 Tex. 714; in this State (La.), were married Castro v. lilies, 22 Tex. 499; Sue of out of it, and never resided in it, Packwood,9Rob 438; /a'. i2Rob. 334. property purchased in this State When a couple remove from the will be the property of the husband country in which they were mar- and not of the husband and wife, ried, their respective rights to prop- Armorer v. Case, 9 An. 288, 51 erty which they acquire in the Am. Dec. 209. country to which they migrate, are to be regulated by its laws. 81 § 48 BALLINGER ON COMMUNITY PROPERTY. [CHAP. III. CHAPTER III. SEPARATE PROPERTY OF THE MEMBERS OF THE COMMUNITY. ^ 48. General Considerations. § 49. Emancipation of Wife. ^ 50. Under the vSpanish and Mexican Xaw. ? 51. Under the Statutes ^ 52. The Dotal System in Louisiana. § 53. Distinguishing Characteristics of Separate Property. I 54. Property Acquired Before Marriage. § 55. Personal Property Acqiiired Before Marriage. § 56. Acquisitions by Gratuitous Title After Marriage. §57. Gifts — Separate Property. ^ 58. Transactions Between Husband and Wife — Gifts, etc. I 59. Husband May Give His Interest in Separate or Community Property to the Wife Directly. § 60. Property Transferred by Husband by Way of Gift Becomes Part of Wife's Separate Estate. § 61. Gift to Wife Must be Made in Good Faith and While Solvent. ? 62. Purchase by Husband, Title Taken in Wife's Name. I 63. Parol Evidence Admissible to Rebut Presumption. § 64 Acquisition of Property During Coverture with Separate Funds — Effect of. § 65. Rule in Louisiana. ^ 66. Separate Property — How Traced. ^ 67. Burden Upon Wife to Prove Purchase with Separate Funds. ^ 68. Effect of Confusing Separate and Community Property. § 69. Registration of Separate Property. 'i 70. Object of Filing Inventory. § 71-72. Registration in Washington. g 73. Married Women as Public Merchants — Sole Traders' Acts. 82 CHAP. III.J EMANCIPATION OP WIPE. § 49 § 48. General Considerations. — It is not within the pur- view of tliis work to discuss the separate property rights of the wife or of the husband further than their natural con- nection with the communit}' sj'stem demands. Tlie property rights of married women have been the subject of legislation and Judicial construction in all the States, and volumes have been written by able commentators thereon, so that it can be of little or no advantage to enlarge upon this subject in a work upom community property further than to discuss the same in so far as it is auxiliary to and an intimate part 'of the coiiiiinunity doctrine. The law does not attempt to ■carve out ^ 1443 Gen. Stat. Wash, ker V, Koneman, 13 Cal. 10. In ■• § 1455 Gen. Stat. Wash, conflict with Texas, Read v. Rahm, 140 CHAP. IV.] RIGHTS OF PURCHASERS, ETC. § 101 no lesser or partial interest of tlie grantor could be conveyed in any event, because this would have the effect of destroy- ing the community character and leave it neitlier separate or communitv, which would effect a result the law does not contemplate.^ This provision has substantially authorized the spouses to deal with each other on the same footing as they may deal with strangers, except that the assets of the community are to be treated as in the nature of a trust fund for the satisfaction of existing equities of the creditors of the community.*^ § 1 01. Rights of Purchasers and Doctrine of Estoppel. — Where the husband's powers of alienation of community property are unrestrained, and he continues to manage the community estate, his transfers thereof cannot be assailed, except in cases where they are simulated, and made with the design of defrauding the wife, or where the property conveyed by him can be shown to be a })art of the wife's separate estate. But in Louisiana the last exception would seem to exist only in cases where a separate purchase in the name of the wife had been made and recorded as required by law, sufficient to give third parties notice of her separate rights therein.'' It frequently happens that purchases are made with the separate means of the wife or in exchange for her separate property, and the title taken in her name, without the conveyance expressing on its face anything more than a mere purchase by her during coverture. Of course, in such cases, the law presumes the purchase to be on account of the community. And purchasers from the husband of such property have the right to rely upon the fact that the law makes the same prima facie community property, and authorizes him to alienate it as though it were 1 I Board of Trade v. Hayden, 4 This doctrine is further discussed Wash. 277; see also idem 274 under Chap. Ill, ^ 61, as to fraud ^ See Ewing v. Van Wagenen, 6 on creditors. Wash. 48-9. '■' See Tally v. Heffner, 29 An. 520; Metcalf V. Clark, 8 An 286. 141 §104 BALLINGER ON COMMUNITY PROPERTY. [CHAP. IV. a part of his separate estate. The fact that the title is taken in the name of tlie wife is considered as not even notice that she may be permitted to assert a separate right thereto. The contrary doctrine, however, prevails in Cali- fornia, as will be presently noticed. Some of the States have attempted by registration laws to obviate the injustice which may occur by reason of a rigorous application of the prevailing rule-^ § 102. In Cases of Desertion. — Respecting alienations by the wife in cases of desertion, the Supreme Court of Texas in Zimpleman v. Robb," said, "Although the importance of legislation, which would require the titles to community property to be taken and recorded in the joint names of both husband and wife, is often seriously forced upon our consideration as a necessity for the protection of parties who purchase such property, yet, under the law as it now is, the legal effect of the deed to the husband alone to community property, is to make it a deed to the community itself; and as the wife, in the event of desertion by the husband, has the power in certain contingencies to sell community prop- erty, a subsequent purchaser from the husband must at his peril take notice of a prior recorded deed from the wife." § 103. Effect of Presumptions. — What has been said of the husband's powers of alienation over property standing in the wife's name by apparent onerous title, is subject to qualifications under some jurisdictions. If the presumption of law can be assailed under such circumstances and the property shown to be a part of her separate estate, mani- festly, the husband's deed would not transfer the title thereof. We will consider, therefore, in this connection, the duties of purchasers and equities of the wife under such cir- cumstances. The doctrine on this subject, as laid down by the courts of California and Texas are not in harmony. § 104. Rights of Purchasers in California. — Purchasers from the husband in California of such community property 1 See Chap. Ill, | 69. ■' 53 Tex. 282. 142 CHAP. I V.J RECITALS IN DEEDS EFFECT OP. § 105 purcliase at their peril, and are subject to the equities of the wife, ill case the presumption that the property is commu- nity is overthrown. It is there decided if a grantee of a conveyance for a money consideration is a married woman at the date of the conveyance, prima facie, a conveyance by the husband in his own name, of the hind so conveyed to the wife will be presumed to pass the title; but in fact it may not, for tlie reason that the land may still be the sepa- rate property of the wife, which he has no power to convey. In such cases, all parties claiming title through the husband to lands, the title to which never stood in his name, must ascertain, at their peril, whether he did in fact have power to qonvey, or, in other words, whether the property was at that time community or the separate property of the wife. The record title being in the wife, is notice to all the world that the property may turn out to be her separate property, although clothed with the community presumption. The record, however, is enough to put the purchaser on inquiry as to the true condition of the title.^ § 105. Recitals in Deeds — Effect of. — Recitals in deeds, however, will not prevail over the presumption that the property is in community, and accordingly it was held that where a deed of land to the wife, purporting to be for a val- uable consideration, but which was silent as to the source of the consideration, was made to a married women, a recital therein that the conveyance was "for her separate use, benefit and behoof," does not estop the husband from treat- ing the property as community.^ In a recent case tlie same rule was affirmed where property was conveyed to the wife by deed of bargain and sale, and the court said that "All intending purchasers or encumbrancers were bound to take notice that the property was hers in the proportion that it had been paid for with her funds, and what that propert}^ ' Ramsdell v. Fuller, 28 Cal. 43-4; ^ McComb v. Spangle, 71 Cal. 418. see 4 West Coast Rep. 445, 541. 143 § 106 BALLINGER ON COMMUNITY PROPERTY. [CIIAP. IV. was they were bound to know at their peril." It is true that in respect to conveyances to married women expressing a valuable consideration, and made prior to the recent amendment to § 164 of the civil code/ the presumption is that the property conveyed belongs to the community, and is subject to the control and disposition of the husband alone. But this is a mere rule of evidence fixing the ojins probandi in cases where the question of ownership is in litigation, and is entirely consistent with the doctrine that every purchaser has notice, her deed being of record, of the extent of her claim to the propert}^, whatever it may turn out to be, and that if she have paid for it out of her separate estate either in whole or in part, she may always claim it and hold it, in the same proportion, upon making proof of the fact." A sale of the wife's real property under an execution against the husband may be enjoined as creating a cloud upon her title, as the deed of the sheriff would convey to the purchaser a prima facie title, wliicli she would have to overcome by proof. The property had been acquired by the wife in her name by purchase as a "sole trader," which makes this de- cision an exception to the general rule.^ § 106. Estoppel of Wife. — In Hand v. Hand^ the plaintiff was a married woman, her marriage having. been contracted in England in 1855, of which country her husband then was and ever since had been a resident. Since 1863 she had lived in California, separate and apart from her husband, and, up to the year 1878, in meretricious relations with the defendant, passing as his wife, and completel}^ ignoring her marriage. In 1873 she conveyed to the defendant certain real property acquired in California by her. The certificate 1 Stats. 1889, p. 328. ^ Alverson v. Jones, 10 Cal. 9, 70 "- Ramsdell v. Fuller, 28 Cal. 44- Am. Dec. 689; contra Turner v. 45, 87 Am. Dec. 103; Jackson v. Mfg. Co. 37 Pac. 674; Harrington v. Torrence, 83 Cal. 521; Gwynn v. Johnson, Wash. (Not yet reported. Dierssen, 36 Pac. 103; see also in Decided Jan. 8, 1895.) Washington, Yesler v. Hochstetler, < 68 Cal. 288. 4 Wash. 349. 144 CHAP. IV.] RIGHTS OF PURCHASERS IN TEXAS. § 107 of acknowledgment was in the ordinary form, and not that required for the acknowledgment of a married woman. Held, that the plaintiff could not avoid the deed on account of the defective acknowledgment, but by her conduct she was estopped from invoking the benefit of the statute.^ § 107. Rights of Purchasers in Texas. — In Texas we find the doctrine to be that, the purchaser from the husband of lands acquired during marriage, the deed to which is made to the wife, is not thereb}' put upon inquiry' as to any equity the wife might have in respect to it, but if he buys in ignorance of her separate claim therein he is fully pro- tected by the fact that the apparent title is in the commu- nity.^ The fact that the deed is made to the wife does not constitute even notice that it is her separate property.^ It is also held in Louisiana, that the declaration in the act (deed) that property was acquired with separate funds does not relieve the wife from tiie burden of proving that fact aliunde. The recitals of the act prove little or nothing, and amount to no presumption in her favor.^ TJiat a convey- ance expressing a valuable consideration is taken in the name of a married woman, imposes no obligation on a pur- chaser from her husband to inquire whether there are equities between the husband and wife with regard to the property."^ Likewise, the fact that the deed recited a valu- able consideration, but on the contrary the recital of a valu- able consideration authorizes the inference that it is a part of the community property of the husband and wife, and as such may be disposed of by the husband alone, the same ^ See also Reis v. Lawrence, 63 ■• Bachino v. Coste, 35 An. 570 Cal. 129 Burns v. Thompson, 39 An. 377 ^ Kirk V. Nav. Co. 49 Tex. 213; Huntington v. Legros, 18 An. 126 Cooke V. Bremond, 27 Tex. 457. Davidson v. Stuart, 10 La. 148 ^ Wallace V. Campbell, 54 Tex. 87. Forbes v. Forbes, 11 An. 326; Met The doctrine of this case is quali- calf v. Clark, 8 An. 286; Tally v, fied in Parker v. Coop, 60 Tex. 11 1. HefFner, 29 An 520. See also Bonnor v. Stephens, 60 ^ Cook v. Bremond, 27 Tex. 457. Tex. 616. 145 § 108 BALLINGER ON COMMUNITY PROPERTY. [cHAP. IV. as if tlie title deed stood in his own name. The fact that the conversance expresses a valuable consideration, and is taken in the name of the wife, imposes no obligations on the purchaser from the husband to inquire whether there are equities between the husband and wife with regard to the property.^ This doctrine is held to be equally true whether the transfer be made by the husband before or after the death of the wife.'^ § 108. Deeds Cannot Be Varied by Parol Evidence. — The presumption that the property is community cannot be rebutted by parol evidence to defeat the rights of botia fide purchasers for value. " We know of no principle," says the court in Cook v. Bremond, supra, "upon which such evidence can be received for the purpose of explaining or modifying such deeds, after the property has passed into the hands of innocent purchasers, and thereby engraft upon it a trust to their detriment." The rule is not based upon the ground that it is inadmissible to prove a different consideration than that recited in the deed, but upon the broad ground that the deed cannot be modified by evidence engralting on it a trust to the injury of innocent purchasers. The purchaser from the husband of land acquired during marriage, the deed to which is made to the wife, is not thereby put upon inquiry as to any equity she might have in respect to it, but is protected, if he buys in ignorance of the claim tu it as separate propert3^ The rule is otherwise, if the recitals in the deed show that the consideration paid was the wife's separate estate, or tliat the purchase was designed for her separate benefit.''' On principle the same doctrine is appli- cable to lien creditors.* Tlie law upon this subject as 1 Kirk V. Nav. Co. 49 Tex. 213; ^ Dooley v. Montgomery, 72 Tex. French v. Strumberg, 52 Tex. 92; 429 Wallace v. Campbell, 54 Tex. 87; ^ Kirk v. Nav. Co. 49 Tex. 213; Cooke V. Bremond, 27 Tex. 457, 86 Wallace v. Campbell, 54 Tex. 87. Am. Dec 626; see Zorn v. Tarver, ■■ Wallace v. Campbell, 54 Tex. 87. 57 Tex. 388. 146 CHAP. IV.] PAROL EVIDENCE INADMISSIBLE. § 100 adjudicated in Texas, has been concisely stated in Parker v. Coop,^ by Justice Stayton, in a case where lands deeded tiie wife during coverture had been attached by a creditor of the community; the deed reciting that the purchase money was |)aid by her, but not from her separate iunds nor that the land was conveyed to her in her own separate right. The learned justice says: " It has been settled by a line of decisions in this State, that, as against a purchaser for value from the husband, or through an execution againt him, witliout notice of the right of the wife, she will not be per- mitted to hold the land upon proof that the same was bought with her separate means, or was a gift to iier from some other person, unless there be that in the deed which will put such purchaser upon inquiry as to her separate right in the property, and this even though the deed to the land be made to her during coverture.^ The same rule has been ai)plied in case of a mortgage of land by the husband, which had been deeded to the wife during coverture by a deed reciting that the purchase money was paid by her, which, however, did not recite that the purchase money was the wife's separate property ;'' and this even though the land was bought with the separate means of the wife. § 109. Rule Based Upon What Theory. — In the same opinion it is said : " The cases all proceed on the theory that the purchaser in good faith may rely upon the real title being where, by the deed, it appears to be, and that he or she who wilfully or negligently permits property to stand in the name of another person, at least as apparent owner, cannot be heard to say that such is not true, to the prejudice of a person who, relying upon the apparent ownership, has bought and paid a valuable consideration for the land. As has often been said, land purchased during coverture, whether the deed be made to the husband or the wife, is presumed to be community prop- erty, if there be nothing in the deed to indicate to the con- ' 60 Tex. 114. French V. Strumberg, 52 Tex. 109. "' Cooke V. Bremond, 27 Tex. 459; ^ Kirk v. Nav. Co 49 Tex. 215. 147 § 109 BALLINGER ON COMMUNITY PROPERTY. [CHAP. IV. trary. This is now certainly the hivv in this State, and it is now too late to inquire whether or not, from the fact that deeds are not ordinarily made to married women, unless there he an intention therehy to conve}^ to her a separate estate, or unless her separate property is the consideration, it would not have been better to have held that, when deeds were so made, it was the duty of a purchaser to make inquiry as to the real ownership. It cannot be denied that the enforcement of the rule, in many cases, operates harsiily upon the interests of married women, where there separate means have been invested in lands, through deeds not con- taining recitals held sufficient to put })urchasers from hus- band upon notice of the separate rights of the wife; and it may place the wife in a more unfavorable tittitude than her dependent relationship to her husband would justify. Be this as it may, such is the established rule.'" A convey- ance of real estate made by a tliird party to the wife, paid for by the husband with the separate funds of the wife, where the deed fails to recite that the purchase money was her separate funds, or that it was for her sole and separate benefit, the legal title vests in the community. The wife, however, is the equitable owner, with a resulting trust created therein by the use of her money in the purchase of the land. A purchaser thereof from the husband with notice of the wife's equity will acquire no title, nor will a creditor of the husband with notice be able to reach the property.^ A different rule, however, obtains where the relation of innocent purchaser for value received does not exist. The doctrine is well established, that as between the parties to such deeds, their privies in blood, purchasers without value or wnth notice, parol evidence is competent to aftect or qualify their legal import.'^ 1 See also Kempner v. Comer, 73 Stoker v. Bailey, 62 Tex. 299; see Tex. 196. Pearce v. Jackson, 61 Tex. 642. 2 McKamey v. Thorp, 61 Tex. ^ Cooke v Bremond, 27 Tex 457, 648; Parker v. Coop, 60 Tex. iii; 87 Am. Dec 626; McKamey v. 148 CHAP. IV.] BONA FIDE PURCHASERS. § 110 § 110. Bona Fide Purchasers. — The rule as to purchasers froui the husband is otherwise, if the deed to tlie wife show on its face tliat the consideration paid was her separate prop- Thorp, 6 1 Tex. 648; McBride v. Bangus, 65 Tex. 174; P'rench v. Strumberg, 52 Tex. 92; Smith v. Boquet, 27 Tex. 507; Parker v. Coop, 60 Tex. III. vSee also Woodward v. vSiiggett, 59 Tex. 619. A purchaser of land under an ex- ecution against the husband, the apparent title to which is in the community, but which was paid for with the wife's separate means, a knowledge of which fact was com- municated to the purchaser after lev}', but before the purchase at ex- ecution sale, cannot l>e an innocent purchaser. Bonnor v. vStephens, 60 Tex. 616. Though a deed has been made to the husband during his wife's life, and for land paid for with commu- nity funds, yet if lost and never recorded, and another be made to the husband after the wife's death in which no reference is made to a prior deed, and it be shown that a purchaser for value from the hus- band bought with no knowledge of the former deed or the equitable claim of the children, or of the facts that should have caused him to in- quire, he takes full title free from the equitable interest which de- scended from the mother to her children. Pouncey v. Ma}', 76 Tex. 565. One, who at the moment of ac- cepting a deed given in considera- tion of money of the vendee pre- viously appropriated by the vendor, was informed of an older unrecorded deed made by the vendor to another for the same propert}', cannot be a bo}ia fide purchaser. Pearce v. Jackson, 61 Tex. 642. If the title to property be in the name of the husband alone, a pur- chaser from him who has paid value without actual notice of the wife's interest, she having been divorced, will be protected against her claim or the claim of her heirs. Edwards V. Brown, 68 Tex. 329; see Yancy v. Batte, 48 Tex. 46; Johnson v. Harri- son, 48 Tex. 257; Tieman v. Rob- son, 52 Tex. 411; Zimplenian v. Robb, 53 Tex. 274; Patty v. Middle- ton, 82 Tex. 586, 17 S. W. 909. A purchaser at execution sale, iin- der a judgment against the hus- band, acquires title to the property purchased, if the same was acquired during coverture by deed, thoiigh executed to the wife, if such pur- chaser had no knowledge that the property was acquired with the sep- arate means of the wife. Cline v. Upton, 56 Tex. 319. One who assumes by virtue of a power of attorney, to convey land deeded to his wife during marriage by onerous title, estops himself and his heirs from claiming the land, since, though the power of attorney is of no effect, the land under the statute is community property, which may be conveyed by the hus- band alone. Dooley v. Montgomery, 72 Tex. 429, 10 S. W. 451. In case a deed of land, taken in exchange for community property, is lost without being recorded, and after the wife's death the husband prociires a second deed to himself from the vendor, containing no ref- 149 §111 BALLINGER ON COMMUNITY PROPERTY. [CHAP. IV. erty, or that the purchase was for her separate henefit. A purchaser from the husband under sucli circumstances ac- quires no title to the hmd so conveyed.^ As to bona fide purchasers and contract hen creditors without notice, the wife is held to the apparent title which vests in the commu- nity, althougli the deed be taken in her name reciting a valuable consideration ; as to all others, including creditors with mere statutory liens created by judgment or execution, she can claim the resulting trust arising from the manner in which tlie land was acquired.^ § 111. Bona Fide Purchasers — Continued. — The case of Edwards v. Brown^ holds that the law detining what shall be conmiunity property merel}^ declares that such property shall belong beneficially to botli spouses, but does not attempt to regulate the form of the conveyance which shall be neces- sary to vest title; hence, when the conveyance is to one only the legal title vests in that one, and not in the community of husband and wife, with the beneficial title, however, in them both. Any other rule, says the court, is inconsistent with the intention of the statute and with the registration laws, which were intended to expose the chain of legal title to the inspection of innocent purchasers in order to protect them against secret claims.* The doctrine of this case is opposed to that expressed by the courts of Louisiana.^ The facts of the above case are that in 1854 a married man ob- erence i.o the former deed, a piir- 648; King v. Holden, 16 S. W. 898; cliaser from the husband for vahie, Veramendi v. Hutchins, 48 Tex. without notice of any facts showing 531; Grace v. Wade, 45 Tex. 523; the land to have been communit}' Linn v. LeCompte, 47 Tex 441. property acquires a good title. ^ 68 Tex. 329 Pouncey v. May, 76 Tex. 565, 13 S. ^ See Patty v Middleton, 82 Tex. W. 383; see Garrett v. Jobe, 70 Tex. 17, S. W. 909; Hensley v. Lewis, 82 696, 8 S. W. 505. Tex 17 S. W. 913. * Kirk V Nav. Co. 49 Tex 213; '^ Provost v. De la Houssaye, 5 An. Parker V. Coop, 60 Tex. iii. 610; Young v. Young, 5 An. 611; - Ross v. Kornrumpf, 64 Tex. 390. Dominguez v. Lee, 17 La. 296; Da- See also Parker v. Coop, 60 Tex. vidson v. Stewart, 10 La. 148. in; McKamey v. Thorp, 61 Tex. 150 CHAP. IV.] DOCTRINE OF ESTOPPEL IN WASHINGTON. § 112 tained a patent to land in his own name, as assignee of the certificate under whicli it was located. The wife obtained a di voice in 1862, but neither claimed or had set apart any property. The husband died, leaving a second wife, to whom he devised the land. The second wife sold the land to one who was ignorant of the fact that the husband had ever be- fore been married, and who, on examination of the records (probably not the record of divorce) found a title down to his vendor, perfect on its face. In an action by the divorced wife against the purchaser to recover a community interest in the land it was held that the purchaser acquired the title.^ It is difficult to reconcile the case of Edwards v. Broivn with the earlier jurisprudence of the State of Texas upon the sub- ject of community rights, without considering it a radical departure from them." The doctrine of estoppel as applied to purchasers of community property from tlie husband, has application, as is apparent, to cases where the record or paper title is in the name of the wife. Where the husband has the absolute power of alienation, unrestrained by the assent of the wife, manifestly the only question which can arise in such cases would be whether the property was the separate estate of the wife or communit}^ property. § 112. Doctrine of Estoppel in Washington. — In Wash- ington, however, the equitable rules of estoppel have a broader application to transactions between the spouses and third persons than in an}^ other State, owing to the peculiar status of its laws. There a purchaser of real property from a man or a woman takes the conveyance at his peril. It may turn out that the grantor was a married person, at the time of making the conveyance. If the property was acquired after such marriage by an onerous title, it belonged to the community, and, if so, the deed of the grantor would convey no interest in the lands, unless joined in by the other ^ See Hill v. Moore, 62 Tex. 610. see Sadler v. Niesz, 5 Wash, 182, ^ Zimpleman v. Robb, 53 Tex. 274. 189. 151 § 113 BALLINGER ON COMMUNITY PROPERTY. [CHAP. IV. spouse. But is a purchaser bound to know absolutel}', whether his grantor be married or single, in order to acquire title to the lands conveyed ? The presumption of law is, in such cases, that the grantor is single, and prima facie a con- veyance from such person would pass the title.^ But, as against the presumptions attendant upon communit}'^ prop- erty, and the laws in relation thereto, the grantor being married may be disabled by the statute from making any conveyance of the title to the property. If the purchaser knows the property to be in community he gets no title; if he does not know, but reasonable inquiry would inform him, equity will not protect him ; if by diligent inquiry he cannot ascertain that a marriage relation exists, or if it had existed, that the other spouse had by infidelity or other con- duct absolutely renounced it, equity will protect his title against the assault of either or both members of the com- munity. Such is believed to be the general rule in Wash- ington, and the settled doctrine according to the adjudications on this subject, which we will now proceed to examine. In Adams v. Black^ it is held that where the husband and wife are living together and a reasonable inquiry would discover their marital relations, a purchaser deals with the individ- ual spouse as to realty at his peril. The deed of either under such circumstances would convey no title, even though the vendor represent himself as a single person, and it is so recited in the deed.''' § 113. Doctrine of Estoppel in Washington — Con- tinued. — It is very different, however, where one of the spouses has so conducted himself as to leave the reasonable inference that no marriage exists or that if it existed the relation had been absolutely abandoned. Without more, a bona fide purchaser would be protected, not by the law authorizing him to take title from one of the spouses, ' Ramsdell v. Fuller, 28 Cal. 44. ^ See Holyoke v. Jackson, 3 Wash. * 6 Wash. 528. Ter. 235; Sadler v. Niesz, 5 Wash. 182. 152 CHAP. IV.] DOCTRINE OF ESTOPPEL IN WASHINGTON. § 113 but by tlie conduct of the derelict spouse raising an equit- able estoppel sufficient to protect his title so acquired, unless the title so acquired stood in the name of the non-contract- ing spouse. It is on this theory, it is believed, that the case of Sadler v. Niesz^ was decided, and this doctrince seems to have become the settled law of Washington.'^ On the same principle it was decided in Schivabacher Bros. v. Van Reypen^ that a mortgage executed by the husband alone could be foreclosed, when the mortgage itself declares that the maker is an unmarried man and there is little or no testimony showing knowledge on the part of the mortgagee of the maker's marriage, which would lead a man of ordinary pru- dence' to further investigate in regard to the matter. This decision is based upon the previous rulings of Sadler v. Niesz and NuJm v. Miller. In the latter case the wife was residing in a distant State, had j^arted from her husband, and treated the separation as final, permitting him to go where he pleased without any effort to follow him, during wdiich separation he held himself out to be a single man, and acquired and con- veyed lands as an unmarried man. The wife was held to be estopped from claiming a community interest in such lands against an innocent purchaser. "Having wantonly abro- gated the marriage relation, I think the wife should be estopped from claiming against those who were led by her own acts to deal with her husband as a single man," says Dunbar, J., concurring. Of course where no legal marriage existed the doctrines here asserted would have no applica- tion, hence a feigned husband or wife would have no standing against a purchaser from the other, for the pro2:)erty as a mat- ter of fact was never in community.* An instructive case on this subject was lately decided by Judge Hanford, of the Circuit Court for the District of Wash- ' 5 Wash. 182. what inquiry necessary. Bdwards - See also Adams v. Black, supra; v. Brown, 68 Tex. 332-3. Nuhn V. Miller, 5 Wash. 405; Stock- ^ 6 Wash. 154. still V. Bart, 47 Fed. Rep. 231. See ^ See I 14, Chap. II, ante. 153 § 113 BALLINGER ON COMMUNITY PROPERTY. [cHAP. IV. ington, Judge Sawyer concurring/ where a daughter bought real estate and had the deed made to her mother, who after- wards conveyed it by deed, in wliich lier husband did not join, to a corporation, from which the plaintiff afterwards purchased it. The consideration was paid by the corpora- tion to tlie daughter. The plaintiff objected to the title, whereupon the husband quit-claimed to plaintiff for a nom- inal consideration. The husband knew of the conveyance to the corporation and did not object thereto nor assert any title to the premises until after he had deeded to plaintiff. Held, that both husband and wife, and their subsequent grantee without consideration, were estopped to claim title adversely to plaintiff. 1 Stockstill V. Bart, 47 Fed. Rep. 231. 154 CHAP, v.] STATUTES CONTRASTED. § 114 CHAPTER V. RIGHTS OF CREDITORS AND LIABILITIES OF THE COMMUNITY, §114-115. vStatutes Contrasted. I 116. How and by Whom the Community May be Bound. § 117. Husband Has Unlimited Power to Bind Community for Debts, ? 118, What Are Community Debts. § 119, Judicial Definitions. § 120. What Property Liable for Community Debts — General Considerations. I 121. Several Interests Not Liable During Coverture. § 122. Community Debts Have Priority. I 123. All Property Held by Husband and Wife Presumed Liable for Community Debts. § 124, Separate Property of Wife Not Liable for Community Debts. I 125. Fruits and Revenues of Separate Property. I 126. The Wife as a Public Merchant — Obligations of — When Community Property Liable for. ^. 127. When Separate Property of Wife and its Profits Mingled — All Treated as Community, ^ 128. Rights of Wife and Creditors Where She Claims Property as Separate. I 129. Rule When Property is Purchased Partly with Community and Partly with Separate Funds. ^ 130. Resulting Trust in Favor of Wife. § 131, Rule in Louisiana. ^ 132. Liability of the Community for Ante Nuptial Debts of Spouses. ^ 133. Community Liable for Private Debts of Husband During Coverture. ^ 134-135. In Texas Community Liable for Private Debts of Spouses Contracted Before Marriage. . • 155 §114 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. ^ 136. Liability of Community for Necessaries. § 137. Rule in Texas. g 138. Rule in California and Other States. ? 139. Rule in Cases of Abandonment. § 140. Wife's Separate Property Liable Only for Necessaries Pur- chased by Her. I 141. Reimbursement of the Community for Community Funds Used for the Separate Benefit of the Spouses. ^ 142-143. Rule in Louisiana, I 144-145. Spouses as Creditors of the Community — Reimburse- ment for Advancements. § 146. Rights of Creditors and Spouses in Washington. ^ 147. Community Realty Not Liable for Private Debts of Spouses, ^ 148. Real Property Liable for Community Debts Only. ^ 149. All Debts Contracted by Husband During Coverture Prima Facie Community. ^ 150-15 1. What Are Community Debts. ^152. Earnings of W^ife. § 153. Voluntary Assignment for Benefit of Creditors by Husband, ? 154. Gifts Between Spouses — Fraud on Creditors. ^155. Transfers Between Spouses Not Fraudulent per se as to Creditors. I 156. Transfers from Husband to Wife Valid Between the Parties. I 157. In Making Transfer Husband Must Act in Good Faith. § 158. Transfers Between vSpouses Valid in Washington if Not in Fraud of Creditors. § 114. Statutes Contrasted. — In order to obtain a clear conception of the liabilities to which community property may be made subject, it is of paramount importance that the nature and characteristics of the community relation be fully understood. This subject is discussed at length in Chapter II. It will be observed that the rules of partnership liability, as applied to ordinary partnerships, cannot be successfully engrafted on the conjugal partnership; there is no such relation recognized in the community as that each partner is a principal and also an agent as to the other. By the Spanish law the liability of the community was 156 CHAP, v.] STATUTES CONTRASTED. §115 measured on the principle,, "that the gains being common, the debts which are contracted during marriage are to be paid out of tlie community property; but not those con- tracted before marriage or after its dissolution."^ Following the rule of the Spanish law, the code of Louisiana provides that: "The debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to marriage, must be acquitted out of their own personal and individual effects."^ "It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts con- tracted during the marriage and not acquitted at the time of its dissolution."^ In Texas, the code, likewise declares, that: "The com- munity of the husband and wife, except such as is exempt from forced sale, sliall be liable for all debts contracted dur- ing marriage."* § 115. Statutes Contrasted — Continued. — The codes of the otlier community States furnish no express provision governing the liability of the community, further than such as is necessarily implied from tbe absolute power of disposi- tion and control vested by statute in the husband. The statutes of Washington, however, possesses an exception to the general rule in regard to the liability of community realty.' The husband having the management and control of the community property, w^ith the like absolute power of disposition thereof, as of his separate estate, other than testa- mentary, is held, during the lifetime of the spouses, to ren- der the whole of the community property subject to his 1 L. 14, tit. 20, lib. 3, Fuero Real; * Art. 343 Sayle's Tex. Stat. See ist White's Recop. 63. also Sayle's Tex Stat Art. 2857, to - Art. 2403. the same effect. ' Art. 2409. * See § 1400 Gen. Stat, of Wash. 157 §116 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. debts.' It is said in Packard v. Arellanes,^ that, "The con- tracting 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 liabihty of the community property for their payment." It may accordingly be stated, that the community statutes provide, in substance, that the gains, during coverture, being common, the debts contracted during the same period are also common; and are to be satisfied out of the com- munity property, and that, as a further principle, deducible from the absolute power of disposition and control of the community granted the husband, that the whole of the com- mon property is subject to his debts contracted, during the lifetime of the community. § 116. How and by Whom the Community May Be Bound. — The general principles which rest at the founda- tion of the obligations for which the community must be held to res])ond and in what manner it may be bound may, very properly, be considered at the threshhold of this dis- cussion. For the purpose of enabling the spouses to support the family, brought into being by their marriage contract, the law sets apart a fund composed of the product and accumu- lation of their joint toil and industry. As to them and all the world with whom they deal, they are to be treated, so far as this fund is concerned, as a kind of co-partnership; their relation to each other, as concerns it, are of a fiduciary character; as to others, dealing with its members it may be considered as a sort of trust iund, for tlie satisfaction of the lawful charges and expenses of the matrimony. The wife is a silent member of this marital firm, so far as its man- agement and control is concerned, and has no power to charge it with her contracts, made during coverture; while, on the other hand, the husband is clothed with the active 1 Estate of Tompkins, 12 Cal. 125; ' jj Cal. 538. see § 172 Cal. C. C. 158 CHAP, v.] HOW COMMUNITY MAY BE BOUND. § 1 J 6 administration of its concerns, in order to simplify and facilitate the management of its affairs. He-alone can create binding obligations against the community, and he alone settles and liquidates the debts of the community. By operation of law the obligations of tiie husband are trans- ferred to and imputed to that of the community. For all purposes connected witli the administration of such prop- erty, the debts of the community are to be regarded, not as a mere private individual debt of the husband, but as obli- gations involving the liability of each of tlie members of the community.^ It is not necessary for the wife to join in these contracts in order that her interests in the community should be bound the same as her husband's. The law implies her assent and makes his act hers so far as lier interest goes. She is in fact powerless to create any communit}' obliga- tions, unless for necessaries, or to acknowledge a debt of the husband, so as to bind the common property. While the husband during the existence of the communit}' may con- tract debts and extend the time of their payment and make renewals thereof, his power to create original obligations ceases at the dissolution of the marriage.' 1 Packard V. Arellanes, 17 Cal. 538. be alienated by her is still in com- 2 Johnston v. S. F. Sav. Union, 75 munity and liable to attachment by Cal. 135; Fisher v. Gordy, 2 An. 762. the creditors of the husband. Hart The acknowledgment of a debt by v. Gottwald, 15 An. 12. the wife without her husband's ex- "The husband is the head of the press authority, will not bind him community," says the court in the unless she herself is a " public mer- case last cited, ' ' and has by law the chant," nor can she bind herself for right to administer the community his debt by such acknowledgment, property, and the wife has not the Bower v. Frindell, 17 An, 299. right to alienate such property even And where the wife of an abscond- for a common debt, nor will she be ing debtor gives property in pay- permitted to pledge it. " Repplier v. ment of a debt due by her husband, Gow, i La.47S. See also Chap IV, §92. the law presumes that the property The wife is without legal capacity so given belongs to the community, to alienate community property, and the act of the wife in giving the hence a mortgage by the wife dur- property in payment is a mere null- ing the existence of the community, ity; the property thus attempted to although made with his authoriza- 159 §117 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. § 117. Husband Has Unlimited Power to Bind Com- munity for Debts. — As stated in Taylor v. Murphy,^ "In contemi)lation of law, the community estate is the result of their joint and equal contributions. Its management and disposal during the marriage are given to the husband, not on the ground of any greater interest of his in it, but merely for reasons of public policy and social economy. That the parties dealing or contracting with the members might know the extent of their power and authorit}^ to bind their com- munity property, it is provided that it should be liable for all debts of the husband and for the debts of the wife con- tracted during the marriage for necessaries. In other words, the husband's authority to bind the community is general and unlimited; the wife's, special and limited." The hus- band, consequently, as the active agent of the community, is invested with authority to pledge and charge 1his estate coextensive with the duties devolving on him by virtue of the trust imposed by law. Hence, it is apparent that all property which falls into community may be charged by him on his obligations while acting within the scope of his powers.^ But here the trust relation would seem to fail, since the law does not hold him accountable for any breaches of good faith in the management and disposition of the com- munity estate as between the members of the community. He may even dissipate the assets thereof, except in fraud of tion, cannot be opposed to his cred- own resources, by her husband's itors as his act. Cabrol v. Gour- permanent abandonment, she has dian, lo An 686. the right to dispose of the comniu- A married woman who is a public nity property in case of necessity, to merchant may bind herself for any- preserve the interests of the conimu- thing relative to her trade without nity, and to provide the means for being empowered by her husband; her subsistence. See Woodson v. and in such a case, if there be a Massenberg, 22 S. W. 106. community of acquests, the husband > 50 Tex. 301. will be also bound. La. C. C. 128, ^ O. I. Co. v. Sagmeister, 4 Wash. Otherwise, if not a public merchant. 710; see Lichty v. Lewis, 63 Fed. Thorile v. Egan, 3 Rob. 329. Rep. 536. When the wife is thrown on her 160 CHAP, v.] WHAT ARE COMMUNITY DEBTS. § 118 the wife, without the power on her part to compel him to account or jdeld up the trust. On the theory that because the husband has the entire management, control and dis- position of the community property for the purpose of sus- taining the charges and expenses attending the matrimony, every debt created by him during coverture is a community debt, a fortiori, every person dealing with him has a right to contract on the faith of the community effects standing for the satisfaction of his contracts. Any other rule would per- mit him to assume a fictitious credit which would result in fraud and injustice. § 118. What Are Community Debts. — It may be stated generally that every debt or obligation created by the hus- band during coverture creates a charge upon the community estate, and hence, in general terms, a community debt may be said to be anv debt or liability made bv the husband during the marriage. This definition does not, however, em- brace all debts or obligations to which the community prop- erty may be made subject, as, for instance, antenuptial debts of either spouse, and, under certain special circumstances, the wife may create debts which will be treated as binding on the community property, as for necessaries, but all such liabilities are exceptions to the general rule. Tliere is, how- ever, no exception in any of the States to the rule that every obligation of either or both spouses for which the communit}^ property must be held responsible is a community debt, but such expressions are far from being a definition of a com- munity debt, for they are, in effect, circulus in definiendo, because the definition brings us back to the place whence we started, without giving us any intelligence for our pains. It must be confessed, in view of the var3dng attributes of com- munity property and the slight differences in the powers and capacities of the husband prevailing in the several States, that no logical definition of a community debt can be given which will possess the essential attributes thereof in all the States. Tliis will be more fully appreciated after considera- II 161 § 119 BALLINGER ON COMMUNITY PROPERTY. [cHAP. V. tion of the law and the adjudications of the different States. § 119. Judicial Definitions. — The presumption of law is that every debt contracted during the existence of the mar- riage is a debt of the community.^ "In our opinion," says the court in Callioun v. Leary^^ "every debt created by the husband during the existence of the marriage is prima facie a community debt. All the property acquired by him is prima facie community property, and we think that justice and good conscience demand that the other jiresumption should also prevail." ^ In all those States in which the husband has the absolute management and control of the community property during coverture, the debt of the community is held to be likewise the debt of the husband. The husband, being the head and master of the community, is alone bound for the debts of the partnership.* And all contracts made by him during the marriage are presumed to be made for his advantage as well as in behalf of the communitv, whether made in his name or in the names of both husband and wife. This pre- sumption can only be destroyed by positive proof that the consideration of the contract enured to the separate advan- tage of the wife.*^ A debt created by the joint act of the . husband and wife, during the existence of the marriage, purporting to be on the wife's account, must be presumed to be either the debt of her separate estate or of the husband and the community. If the contract is not that of the wife's, it is that of the husband's.'' Debts contracted during the ' La. C. C. 2372; Kennedy v. Bos- ■• Surle v. Hiene, 20 An. 229; Law- siere, 16 An. 455; Surle v. Hiene, 20 son v. Ripley, 17 La. 274; Rusk v. An. 229; Calhoun V. Leary, 6 Wash. Warren, 25 An. 314; City v. Str. 17; and this was also the rule at the Lizzie Simmons, 19 An. 249; Glass- Spanish law. See Chap. L \ 5- cock v. Green, 4 An. 146; Scanlanv. - 6 Wash. 21 22, Warwick, 10 An. 30; Kelley v. Rob- '■'■ In the absence of any evidence ertson, 10 An. 303; Hawley v. Cres- of debts against the community the cent City Bank, 26 An. 230. legal presumption is that there are * Prudhomme v. Edens, 6 Rob. 64. none. Spencer v. Conrad, 9 Rob 78. '^ Kennedy v. Bossiere, 16 An. 445. ]G2 CHAP, v.] JUDICIAL DEFINITIONS. § 119 community have tlie preference over tliose contracted ante- cedent or subsequent.^ ' Guice V. Lawrence, 2 An. 226. Community Debts — What Are.— Money received by the wife as a de- posit, with the knowledge and con- sent of the hnsband, constitute a debt of the community. Cousins v. Kelsey, 33 An. 880. The fees due a lawyer for success- fully defending a wife in a suit of her interdiction brought by her hus- band, are a debt for the community. Breaux v. Francke, 30 An. 336. But not for fees of counsel eitiployed by the wife to prosecute a suit for divorce and partition of community property. Tucker v. Corlin, 14 An. 734. The remaining portion of the un- paid price of community property acquired dvtring marriage, is a com- munity debt, and this debt is secured by a vendor's privilege. Where this privilege exists anterior to the wife's tacit mortgage, which commenced only from the time her husband be- came her debtor, it cannot of course be controlled by it. LeMoine v. Powers, 25 An. 514. The amount due for rent on a lease executed during the community is a debt of the comnninity. Sue. of Scott, 9 An. 336. See also Strother v. Hamlet, 28 An. 839. Communit}' property conveyed to secure husband's debt, upon the payment of the debt becomes com- mon property again, although title be taken in the name of the wife. Balew v. Casey, 9 S. W. 189; see Hall v. Hall, 52 Tex. 294; Leatherwood v. Arnold, 66 Tex. 414, I S. W. 174. Where the surviving husband ex- tinguishes the community interest in certain property it is still liable for community debts, because the community debts are his individual liability; but when the surviving wife lifts the comnninity charge from property, it is hers absolutely. Leatherwood v. Arnold, 66 Tex. 417. The community lands of husband and wife, where the same is not a homestead, may be subjected to the payment of the community debts contracted by the husband before the institution of a suit for divorce. If the property, however, is home- stead it would not be subject to a forced sale by such creditor. Richie V. Hare, 41 Tex. 336. Where lands l:)ecome community property by purchase, the price promised to be paid therefor is a debt of the comnninity. Davidson V. Stewart, 10 La. 146. Where the wife is not separated in property from her husband or has not the administration of her para- phernal effects, a debt contracted by her is a charge on the commu- nity for which her husband is alone liable and can alone be sued. La. C. C. 2371, 2372; vScanlon v. War- wick, 10 An. 30. The wife cannot be made responsi- ble for wages due a laborer for work done for the community, in the ab- sence of fraud or misrepresentation on her part calculated to mislead him, by inducing him to believe that the property was paraphernal. Helwig v. West, 2 An. 3. Where a debt is a community debt and the property mortgaged to se- cure it was communitv property, the 163 §120 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V § 120. What Property Liable for Community Debts — General Considerations. — Tlie entire coinnuinity estate, when clearly ascertained, must be regarded as a primary fund for the discharge and satisfaction of the community husband may be sued without re- gard to his wife or whether she be hving or dead. Bienvenu v. Four- net, 28 An. 623. What Are Not Community Debts. — A claim for the erection of a tomb over a deceased husband is not a community debt, and must be borne by the deceased partner's estate, as it is a debt created since his death and the dissolution of the commu- nity. Sue. of Smith, 9 An. 107. Property purchased by the wife partly on credit and partly for cash with paraphernal funds, in her hus- band's hands, and sufficient to pay the price, is paraphernal and not liable for the debts of the comnm- nity. Metcalf v. Clark, S An. 286. When she shows that she had means under her own control to purchase certain property, and the property was purchased in her name, the act (deed) of sale, stating it to have been so purchased by funds inherited by her from her father, makes it unnecessary for her to show the identity of the money paid in order to prevent creditors of her husband from subjecting it to the payment of his debts. Ellis v. Rush, 5 An. 116; citing Brown v. Cobb, 10 La. 181; Rouse v. Wheeler, 4 Rob. 114; Ivord v. Cutrer, i Rob. 367; Dominguez v. Lee, 17 La. 300. A life insurance policy in which a married woman is named as bene- ficiary vests a complete title in her as separate paraphernal property, which cannot be taken for the debts 164 of the husband or of the community. Putnam v. New York Life, 42 An. 739, 7 So. Rep. 602. In case of life insurance policy taken out by an unmarried man, the rights and interests thereunder belong to his separate estate and do not fall into a community arising under a subsequent marriage. If, however, premiums have been paid by the comnumity, it is entitled to have such paj-ments reimbursed to it as expenditures made by it for the separate estate of the insured spouse. Succession Mosseman, 38 An. 219. Where life insurance is taken by the husband for the benefit of the wife it has been held that the latter takes the fund without liability to reimburse the community for the premiums paid by it. Sue. of Bofen- schen, 29 An. 714. It was held in Carlisle v. Sommer (61 Tex. 124), that a creditor of the community who, by vexatious pro- ceedings, delayed the payment of a note due the wife, in her own sepa- rite right, so that interest accumu- lated thereon, which interest would by operation of law become commu- nity property, cannot subject the same to the payment of his debt. Creditors should not be allowed to take the wife's separate property b}- dealings with the husband where it is shown that it was not done upon the faith of its being community property. Kempner v. Comer, 73 Tex. 199. CHAP, v.] INTERESTS NOT LIABLE DURING COVERTURE. § 121 debts. This was the rule in Spain, and is the rule under all laws where the community doctrine is recognized.' The private property of each party to the marital union must, as a general rule, bear its own charges and expenses, and they should not fall upon the community.^ This does not mean that the community property is liable for the community debts solely, but that it should be retained for the satisfac- tion of such debts as are a proper charge against it, instead of being absorbed by the private debts of the spouses to the detriment of the community creditors. As heretofore stated, the debts of the community are likewise the husband's debts. All debts contracted by him he is liable to pay, not only from the community estate, but also from his separate prop- erty, and is subject to be sued therefor both before and after the dissolution of the community. These debts are his debts, but are not ordinarily the debts of the wife, except in the sense that her interest in the community property is bur- dened with the liability for their payment.'' It was said in Richardson v. Hutchins* that "The separate estate of a hus- band or wife is as distinct from the community estate owned by them, as to title, as is the estate of any person in no way related to another to such other's estate. The separate estate of a wife by mere operation of law can never be made liable for community debts, while both the community estate and the separate estate of the husband will be liable for any debt he may contract." § 1 21. Several Interests Not Liable During Coverture. — No method is provided by which the separate creditors of the spouses can reach the individual interests of its members in the community estate until after its dissolution, and then only in subordination to the rights of community creditors.^ ' Christmas v. Smith, loTex. 129; ■* 68 Tex. 81, 3 vS. W. 279. Cleveland v. Cole, 65 Tex. 405. ^ Columbia National Bank v. Em- * Womack V. Womack, 8 Tex. 415. bree, 2 Wash, 331, 26 Pac. 257; 3 Moody V. Smoot, 78 Tex. 123, Stockand v. Bartlett, 4 Wash. 730, 14 S. W. 287; Leatherwood v. Ar- 31 Pac. 24. nold, 66 Tex. 414, i S. W. 173. 165 § 123 BALLINGER ON COMMUNITY PROPERTY. [cilAP. V. And the community as an entirety is not liable for any debts contracted by either spouse after the dissolution of the mar- riage/ §122. Community Debts Have Priority. — It is well settled by the rules of the Spanish and Mexican law that the debts of the partnership upon dissolution have priority of claim for satisfaction out of the communit}^ estate.^ Fol- lowing this rule, the community propert}^ is held to be and is not one-half but the whole thereof a security for the pay- ment of the debts contracted for the common benefit. But the debts of the partnership have a priority of right to the satisfaction out of tlie community assets in preference to any claim or claims of the husband.^ § 128. All Property Held by Husband and Wife Pre- sumed Liable for Community Debts. — It is a firmly settled rule of the community system that the law creates the pre- sumption that all property held by husband and wife is common property, and subject to the payment of the debts of the husband and the community.* This rule is not quali- fied even by the removal of the husband and wife into another State. Such removal does not dissolve the commu- nity as to antecedent acquisitions situate in the former domicile. They are still liable for the community debts contracted be- fore as well as after the change of domicile, and the Imsband may act concerning such acquisitions the same as if his resi- dence were unchanged.^ The community property may also be resorted to for the satisfaction of a debt contracted by the husband and wife on their joint contract for the benefit or 1 Thezan v. Thezan, 28 An. 442; 362; Ford v. Ford, i L,a. 206; Lett see contra, Panaud v. Jones, i Cal. v. Keach, 5 Tex. 394; see Wright v. 515. Hayes, 10 Tex. 133-4, 60 Am. Dec. ^ Jones V. Jones, 15 Tex, 143; and 200; Christmas v. Smith, 10 Tex. see authorities cited. 129-30; Chapman v. Allen, 15 Tex. s Panaud v. Jones, i Cal. 518; 27S; Smalley v. Lawrence, 9 Rob. Packard v. Arellanes, 17 Cal. 537; 210. Jones V. Jones, 15 Tex. 143. ^ Sue. of Packwood. 12 Rob. 334. * Montegut v. Trouart, 7 Mart. 166 CHAP, v.] wife's separate PROPERTY NOT LIABLE. § L24 improvement of the wife's separate estate.^ In such case the judgment debtor has his election whether to execute his judgment against tlie common property or the separate prop- erty of the wife.*^ Any other rule than the foregoing would be absurd, for if the husband can bind the community on his individual contract without the assent of the wife a for- tiori he could do so with her consent, and this rule prevails in all cases of joint obligations of husband and wife. It is also decided in Texas that the community and not the wife is liable for unpaid purchase money on lands conveyed to her by direction of the husband.^ She would be a necessary party to a suit to recover on the notes for the deferred pay- ments when she had signed them, but no personal judgment could be rendered against her.* She is, however, in Louis- iana, on the dissolution of the marriage, liable for one-half the debts if she fail or neglect to renounce the community. Such a liability is not cast upon her or upon her separate estate by the laws of the other communit}^ States, by virtue of her participating in the succession. Her separate prop- erty is protected by express statutory provisions from both the debts of the husband and those of the community in most of the States, except for necessaries.'' § 124. Separate Property of Wife Not Liable for Com- munity Debts. — It is true the wife has an interest in the common property, and is a copartner of the husband, but ^ Grant V. Whittlesey, 42 Tex. 320; ment obtained for a community Cartwright v. HoUis, 5 Tex. 152; debt, to be levied on the commu- Butler V. Robertson, 11 Tex, 143; nity estate, whether the execution Haynes v. Stovall, 23 Tex. 627; so direct or not. Hollingsworth v. George v. Stevens, 31 Tex. 673; Davis, 62 Tex. 438; citing Carter v. Smotridge v, Lovell, 35 Tex. 58. Comer, 60 Tex. 52. ^ Grant v. Whittlesey, 42 Tex. 320. Under a judgment against a hus- * Lynch v. Elkes, 21 Tex. 229; band and wife in solido, the sheriff Faar v. Wright, 27 Tex. 96; Trimble may levy on the separate property v. Miller, 24 Tex. 214; Covington v. of either. Smallwood v. Pratt, 3 Burleson, 28 Tex. 368; Menard v. Rob. 132. Sydnor, 29 Tex. 257. ^ ^ai. c. C. Sec. 171; Gen. Stat, ■• Matlock V. Glover, 63 Tex. 231. Wash. Sec. 1398. An execution may issue on a judg- 167 § 124 BALLINGER ON COMMUNITY PKOPERTY. [CHAP. V. only in the conjugal or community sense, and although separate property is not liable for community debts, yet, where it is commingled with that of the community so as to loose its identity, it is also subject to their payment.^ But neither the wife nor her separate property can be held liable for the debts either of the community or of the husband. As it is said in Louisiana, she is not bound for the debts of the community of which, while it exists her husband is the head, and when dissolved, she may, by renouncing the community, exonerate herself from its obligations.*^ A married woman, in Louisiana, is in general without capacity to bind herself for a debt of the community, con- tracted before or during the marriage, and the party who would hold her bound for such debts, must bring her within some of the exceptions to this rule.^ She will not be per- sonally liable on a note executed in solido with her husband, when he has the administration of her paraphernal effects.* The separate earnings of the wife resulting from her indi- A'idual efforts, like the separate earnings of the husband, are everywhere regarded as a part of the community, and con- sequently subject to seizure for community debts.^ ^ See authorities cited, an/e, Chap, the community growing out of im- II, ^ 44. provements made upon her heredi- "^ Kelly V. Robertson, 10 An. 303. tary lands, until her indebtedness The wife is not separately liable, tothe commv;nity is judiciall3'estab- during the existence of the commu- lished. Abat v. Atkinson, 21 An. nity, for debts created by the hus- 237. band's drafts, though the moneys ^ La. C. C. 2412; Graham v. Egan, raised thereon were to pay the debts 13 An. 546; Scanlan v Warwick, 10 of the wife before the marriage. An. 30; White v. Baillio, 12 An. Kelly V. Robertson, .jw/rrt. 663; City Ins. Co. v. Str. Lizzie Under the laws of Louisiana she Simmons, 19 An. 249; Squire v. is not personally liable for the price Beldon, 2 La. 269; Rouse v. Wheeler, of furniture sold to her husband, 4 Rob. 114; Waggaman v. Zacharie, though, as a member of the family, 8 Rob. 181; Millander v. Carson, 25 she may have the use of it. La. C. An. 380. C. 2329, 2371, 2372. Seignouret v. ■• Wiley v. Hunter, 2 An. 806; see Gardanne, 9 An. 4. Van Wickle v. Violet, 30 An. 1106. The paraphernal property of the ^ See anie, Chap. II, g 21, note, wife cannot be seized for a debt due 168 CHAP, v.] FRUITS AND REVENUP:S, ETC. § 125 Statutory provisions exist, however, in California and Washington, exempting from seizure for the debts of the community, the separate earnings of the wife where she is living separate and apart from her husband.' Where such property falls into the community it cannot escape seizure for community debts by virtue of the husband's having given it to her, and its investment in other property; as between them the donation would be effectual, but not as to creditors.*^ Under the laws of Louisiana, where a decree of separation of property has not been promptly executed, a purchase by the wife of property in her own name will not save it from seizure for community debts.^ It will be necessary to consider, in this connection, certain special circumstances which bring the property of the spouses under liability for community debts. They will be found in the succeeding paragraphs. § 125. Fruits and Revenues of Separate Property. — The fruits and revenues of the separate property of the spouses in Louisiana and Texas belong to the community and are liable to seizure for the debts of the community.* It is settled by numerous decisions in Texas that the profits on investments of a wife's separate estate are community prop- erty, and liable for the husband's debts.'' The debts incurred 1 Cal, C. C. 16S-9; U 1402, 1403, vil V. Walker, 26 S. W. S54; Johnson Gen. Stat. Wash.; see Appendix; v. Burford, 39 Tex. 242. Marlow v. Barlew, 53 Cal. 459; ^ Bertie v. Walker, i Rob. 431; Abbott V. Wetherby, 6 Wash. 512; Broussard v. Broussard, 11 Rob. 445. Finnigan v. Hibernia, S. &. L. Soc. •* Desobry v. Schlater, 25 An. 425; 63 Cal. 390; Loring v. Stuart, 79 Wilcox v. Henderson, 9 An. 347; Cal. 200; Von Glahn v. Brennan, 81 Hayden v. McMillan, 23 S. W. 430. Cal. 261. 5 ciaflin v. Pfeifer, 76 Tex. 469, But is liable on indebtedness con- 13 S. W. 483; Cleveland v. Cole, 65 tracted by her and may be adjudged Tex. 404; Epperson v. Jones, 65 a bankrupt. In re Lyons, 2 vSaw. Tex. 425; Smith v. Bailey, 66 Tex. 524. 553, I S. W. 627; Middlebrook v. - Abbott V. Wetherby, supra: Ca- Zapp, 73 Tex. 29, 10 vS. W. 732, 169 § 1*25 BALLIXGER ON COMMUNITY PROPERTY. [cHAP. V. in producing those revenues are likewise a community debt.' A decision of special interest, as illustrative of the doctrine prevailing in Texas, was recently rendered by the Supreme Court of that State in Dixon v. Sanderson!^ It is also worthy of note on account of the singular facts upon which it was based, which were that the wife with one dollar, a part of the moneys belonging to her before marriage, purchased a ticket in the Louisiana State lottery, on which a prize of 115,000 was drawn, and with a part of the prize money she bought certain town lots and made improvements thereon. It was understood between the husband and wafe that what- ever prize might be drawn by her through such lottery ticket should be treated as her separate property. At the time the lots were purchased the husband was indebted on a promissory note, w'hich, after the purchase, was placed into judgment and tlie execution levied on the lots in question. The purpose of this suit was to restrain a sale under this levy on the ground that the lots were the separate property of the wife. Justice Stayton, delivering the opinion of the court, said : " The statute declares that all property acquired by gift, devise or descent shall be deemed the common prop- erty of the husband and wife. * * * That the prize came not by gift, devise or descent is too clear. It came as the fortuitous result of a contract based on valuable consid- eration paid, and is but the profit on a venture, which, like other profit not resulting from the increased value of the thing bought with the separate means of one party to the marital union, becomes the common property of the hus- 1 Chaffe V. Mcintosh, 36 An. 824; Where separate property is mort- Fluke V. Martin, 26 An. 279; Van gaged by husband and wife for im- Wickle V. Violet, 30 An. 1106; provements and ameliorations put Smith V. White, 32 An. 1033. on them, these last become a part of Where the fruits and revenues are the community of gains and are excluded from the community, by a liable for the husband's debts. Do- marriage contract, of certain sepa- minguez v. Lee, 17 La. 296. rate property, they are not liable - 10 S. W. 535. for community debts. Barrow v, Stevens, 27 An. 343. 170 CHAP, v.] WIFE AS A PUBLIC MERCHANT, ETC. § 120 band and wife. Property purchased with money, the sepa- rate property of husband and wife, or taken in exchange for the separate property of either, becomes the separate property of the person whose money purcluises or whose property is given in exchange, in the absence of some agreement, ex- press or inipHed, to the contrary; and, if the thing purchased or taken in exchange increases in value this necessarily inures to the benefit of its owner. Such a state of facts, however, is not before us, and we are constrained to hold that all profit realized on ])urchase of tlie lottery ticket be- came coinniuiHty pro[)erty," as against existing creditors in case tiie husband did not have sufficient property to pay his debts. The gift vested in the wife a separate property, sub- ject, however, to the rights of existing creditors. In view of the fact that the rents, issues and profits of the separate property of either spouse in Texas are held to be common property, this decision is sound in princi{)le, and exhibits another of the many instances of exact consistency unwarped by the circumstances of the particular case, so admirable in the decisions of that State. § 126. The Wife as a Public Merchant — Obligations of — When Community Property Liable for. — Another class of liabilities which are authorized to be satisfied out of the community, and which is only permitted in Texas and Louisiana, from the fact that the rents, issues, and profits of the separate property fall into community, are the contracts of the wife as a "public merchant," where she replenishes the stock from time to time by using the profits arising from her separate funds. Such property becomes community, and the husband's debts may be acquitted therefrom.^ Wlien a married woman, not separated in property, is engaged in trade, she will be presumed to trade on the funds of the community, in the absence of proof to the contrary, and the 1 Middlebrook v. Zapp, 73 Tex. 29, loS. W. 732; Epperson v. Jones, 65 Tex. 425. 171 § 127 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. assets in her hands will be liable for community debts/ But the wife is not liable for the purchase of goods, where it does not clearly appear that she was at the time a "public merchant," separated from her husband, and bound herself in a matter relating to her business. The goods belong to the community, so do the debts.^ Under the Spanish law, debts incurred by the wife, carry- ing on business as a separate trader, are deemed to have been contracted with the authority of the husband, and for which he is liable. She is liable only to the extent of her effects engaged in the trade, but not for such debts as those effects may be insufficient to satisfy.^ § 127. When Separate Property of Wife and Its Profits Mingled All Treated as Community. — Although the wife's separate property retains its separate character, whatever changes it may undergo, provided it can be traced; yet the profits arising from the investment of her separate i)roperty are community estate, and in case the two are mingled, so 1 Prendergast v. Cassidy, 8 An. 96. exempt from her husband's debts. - Chauviere v. Fliege, 6 Au. 56; For this reason she cannot purchase Sarran. v. RegoufFre, 12 An. 350. upon credit, but cash only, and be As a public merchant, when she ready to show that the money so invests the community estate or the used is her separate means. Epper- credit of her husband in the pur- son v. Jones, 65 Tex. 425; see Wal- chase of goods, the community is lace v. Finberg, 46 Tex 44. siibject to her debts, and she would When one spouse in the marital thereby free her separate estate from partnership invests separate funds, exemption for the community debts, and the business is carried on, and Epperson v. Jones, 65 Tex. 425; its profits re-invested in the enter- Middlebrook v. Zapp, 73 Tex. 29, prise, until it is dissolved by death, 10 S. W. 732; Smith v. Bailey, 66 there exists the right of re-imburse- Tex. 553, I S. W. 627; Clafflin v. nient from the community estate Pfeifer, 76 Tex. 469, 13 S. W. 483. thus acqiiired to the spouse thus The wife may become a merchant, investing separate funds. Schmidt but she must conduct the business v. Huppman, 73 Tex. 112; Lewis v. with goods that are her separate Lewis, 18 Cal. 654; Werner v. Kelly, property, and must not invest the 9 An. 60; Coons v, Stringer 14 An. community estate or the credit of 726. the husband in the purchase of '' Gomez in 1. Tour. 60, n. 6. goods, if she expects to hold them 172 CHAP, v.] EFFECT OF COMMINGLING. § 127 that they cannot be separated, the whole will be treated as community estate, and if a married woman goes into busi- ness with a stock of goods bought with her separate means, and which she replenishes from time to time with the pro- ceeds of sales, buying on credit, and in her husband's name, and so continues for several years, if it cannot be shown how much of capital and how much of profits were used by her in keeping up the stock of goods, the wdiole will be subject to the husband's debts. It was held in Walsh v. Walsh :^ When the husband and wife jointly conducted a grocery business upon an invested capital of which |900.00 was the sei)arate property of the wife, and only $20.00 the separate property of the husband, and upon the husband's death the proceeds of the business amounted to less than the original investment of the w^ife, that the wife's original capital was sufficiently traced to keep it impressed with the character of separate property.^ The court said in Smith v. Bailey :'^ "As it is the presumption that property found in the possession of either husband or wife during marriage is community estate, and this presumption must be overcome by satis- factor}^ proof, it follows that without such proof as to how much separate and how^ much community means were used in the purchase of a stock of goods in the possession of the wife, it cannot be determined that she has any separate interest in them whatever. The burden of proof is upon her to show these facts in rebuttal, and not upon the creditor who seeks to subject the goods to the husband's debts. * ^ 84 Cal. loi. purchased ininiovable property and - Lewis V. Johns, 24 Cal. 98. put the same as stock into a part- ^ 66 Tex. 554. nership of which he became a mem- * Smith V. Bailey, 66 Tex. 553, i vS. ber. After the dissolution of the W. 627; see authorities cited. See comumnity by the death of Mrs. K. also Clafflin v. Pfeifer, 76 Tex. 469, the property was sold on execution 13 S. W. 483; Epperson v. Jones, 65 for the debts of the partnership, and Tex. 425, the heirs of Mrs. K. brought suit for During the existence of the com- her community interest therein. munity of acquests and gains be- Held, that T. L. King, as the head tween T. L. King and his wife he and master of the community, had 173 § 128 BALLINGER ON COMMUNITY PROPERTY. [cHAP. V. § 12S. Rights of Wife and Creditors, Where She Claims Property as Separate. — Since the law regards all property purchased by either spouse during the existence of the com- munity as in community, where property is so acquired by the wife it will be presumed to be liable for community debts. Tliis presumption, however, is a mere rule of evidence and may be overcome by siiowing that the property was purchased with her separate funds. In order to rescue the property from falling into community and from seizure for community debts, the proof of separate rights therein must be clear and satisfactory, any attempt, it has been said, to screen community property from the payment of the community debts by the separate right alleged b}'' one of the partners requires strict proof of the right alleged.^ In McDonald v. Badger^ the right to put the acquests and Feet, 7 An 92; Block v. Melville 10 gains as stock in the partnership; An. 784; Forbes v. Forbes, 11 An. 362; by so doing it it became the property Fisher v. Gordy, 2 An. 762; Mar- of the partnership and especially shall v. Mullen, 3 Rob. 32S. liable for its debts, and a forced sale The profits of all the effects of thereof divested whatever title the which the husband has the admin- community had in said property, istration, and all the effects which Carpenterv.Featherstone, 19 An 508. either spouse may purchase during It is held in Washington that part- marriage, though the purchase be nership real property may be sub- only in the name of one of them jected to mechanics' liens in an are considered by law to belong to action against the partners alone, the community, and liable for the since it is in equity a trust fund for debts of the husband contracted be- the pa3fment of partnership debts, fore or during marriage. La. C. C. and is unaffected by community 493, 2371; Fisher v. Gordy, 2 An, claims of a partner's consort until 762; see Hayden v. McMillan, 23 S. these debts are satisfied. In other W. 430. words, the partnership debt has Real property purchased during preference over the rights of the com- the existence of the communit}-, but munity. Harrington v. Johnson, de- conveyed to the wfe, will be liable cided Jan. 8, 1895. Not yet reported, for the debts contracted by the hus- Landlord's lien on hotel may be band, unless proved to have been foreclosed whether the furniture paid for out of her paraphernal therein be the wife's separate prop- funds of which she had the admin- erty or community property. Bies- istration. Marshall v. Mullen, 3 enbach v. Key, 63 Tex. 79. Rob. 328; Fisher v. Gordy, 2 An. ' Ford v. Ford, i La. 206; Clark 762; La. C. C. 493. v. Norwood, 12 An. 762; Webb v. - 23 Cal. 399. 174 CHAP, v.] RIGHTS OF WIFE AND CREDITORS, ETC. § 128 the court said: "The law is well settled by the decisions of this court, that a deed of purchase to the wife is presumptive evidence tliat the property thereby conveyed belonged to the community, and is liable as such for the debts of the husband, and can be disposed of by him like any other community property. But this presumption may be overcome by clear and satisfactory proof that it was acquired by the separate funds or property of either husband or wife; and the burden of proof to rebut the presumption lies upon the party claim- ing it as separate. The fact that such deed is made to the wife instead of the husband creates no presumption that the property is her separate estate. The conveyance being by deed of purchase excludes all presumption that the property was acquired by gift, bequest, devise or descent."^ And where the wife is not described as a married woman in the deed, nor a recital therein that the property is conveyed to her sole, separate or exclusive use, nor that she purchased as a sole trader, the conveyance made to her during coverture constitutes the property jwima facie community.^ The burden of proof is on her to show that it is separate property and, consequently, not liable for the debts of the husband.'' Although all property purchased by either spouse during coverture is presumed to be community property, if there be nothing on the face of the conveyance to indicate the contrary, yet, as against one who had acquired a lien by attachment as a creditor of the community upon realty so acquired, the wife may show that the property was acquired with separate funds, and relieve the same from the operation of the lien. There is nothing in the marital relation that should prevent the wife from having the same rights in this respect as the husband.* ^ Meyer v. Kinzer, 12 Cal. 247; Cal. 490; Alverson v. Jones, 10 Cal. Smith V. Smith, 12 Cal. 216; Pixley 9, 70 Am. Dec. 6S9 V. Higgins, 15 Cal. 127. " Adams v. Knowlton, 22 Cal. 288. 2 Meyer v. Kinzer, 12 Cal. 247, 73 '' Attaching creditor may be met Am. Dec. 538; Tryon v. Sutton, 13 with proof of purchase with separate 175 § 129 BALLIKGER ON COMMUNITY PROPERTY. [cHAP. V. § 129. When Property is Purchased Partly with the Community and Partly with Separate Funds. — It has been held in California that money borrowed b}^ a married woman, to invest in real property, during her marriage, is common property, unless it be borrowed by her upon the faith of her existing separate property, which she mortgages or pledges as security for its payment, or against which her contract may be inferred. Real property purchased by a married woman in her own name, partly with money belonging to her separate funds and partly with money borrowed by her for that purpose, becomes in part the separate property of the wife and in part community property. In such case the wife becomes a tenant in com- mon under the California code, § 161, in the proportion that the separate funds paid by her bear to the whole purchase price ; and lands so purcliased, so far as they are community property, may be taken in satisfaction of an execution against the husband.^ While in this case, the title being taken in the name of the wife by purchase, it was permitted to show, as against the presumption that it was community, that moneys obtained by gift by her invested therein made the purchase, in so far separate property, but moneys borrowed by her by contract, none of her separate property being pledged for its payment, was considered as constituting such loan community property. It was conse- quently an acquest or gain not coming in any way authorized by the statute in which separate property may be acquired, and, hence, correctly held community property and subject to the husband's debts.^ When property is purchased partly with the separate means of the wife and partly with com- munity funds, her interest is proportionate to the amount means by wife. Parker v. Coop, 6o chase to the wife of certain realty, Tex. III. the wife executing certain note and 1 Schuyler v. Broughton, 70 Cal. a mortgage for a balance of the pur- 282. chase money. The husband paid - At the request of the husband |io8.oo interest thereon, but upon a the plaintiff executed a deed of pur- suit in foreclosure resisted, claiming 176 CHAP, v.] RESULTING TRUST IN FAVOR OF WIFE. § 130 paid b}' ber, and tbe husband's debts can only be acquitted out of the community interest therein.^ § 130. Resulting Trust in Favor of Wife. — If money while in the husband's hands, remain the property of the wife, the creditors of the husband have no claim on it, and it would follow that its investment in land, the title to which was made in the wife's name, during coverture, could not be a fraud on their riglits, although the deed failed to recite that the purchase money was the wife's separate property, or that the conveyance was for her sole and separate benefit. The deed vested the legal title in the community, she remaining the equitable owner, and a resulting trust is thereby created by the use of her money in tlie purchase of the land.^ Said the court in Yeo v. Montgomery:^ "It is the settled law of this State that a creditor claiming a mere statutory lien by the record of a judgment, or the levy of an execution against the husband in whom the a})parent title is vested, cannot be protected, by reason of this lien, against a resulting trust in favor of the wife, though he have no notice, at the time of the execution, of sucli trust; and a purchaser of the property at the subsequent execution sale will take nothing, as against the wife's equity, if he have notice of the same before making the purchase."* In Cavil V. Walker,^ the wife purchased land, taking a conveyance to her sole and separate use. Two-thirds of the purchase money was paid out of the separate estate of the wife, but the notes and mortgage of the wife 68; Zorn v. Tarver, 45 Tex. 519; void. The court held the debt a Battle v. John, 49 Tex. 203; Baden lien upon the premises by way of an Gose, 57 Tex. 37; see also McBride equitable mortgage, although the v. Bangus, 65 Tex. 174; Stoker v. paper was not a legal mortgage; Bailey, 62 Tex 299. equity will treat that as done which - McKamey v. Thorp, 61 Tex. 648; the parties agreed to have done and see Riley v. Martinelle, 97 Cal. 575. which ought to have been done. ^ 68 Tex. 338, 4 S. W. 622. Remington v. Higgins, 54 Cal. 620. * McKamey v. Thorp. 61 Tex. 648; 'See Cleveland v. Cole, 65 Tex. Parker v. Coop, 60 Tex. iii. 402; citing Love v. Robertson, 7 * 26 S. W. (.Tex.) 854. Tex. 6; Claibum v. Tanner, 18 Tex. 12 177 § 131 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. to secure the balance the husband and wife joined in a note and mortgage. The deferred payment was liquidated witli moneys earned by the wife. In a contest with subsequent creditors of the liusband, Held that the deed placed the legal title in the wife,^ and that, except as to existing credit- ors, the earnings were separate property and that subse- quent creditors of the husband could not subject any part thereof to their claims.''^ § 131. Rule in Louisiana. — It is held in Louisiana that property purchased by the husband with the wife's para- phernal funds, becomes community property, and may be sold for the debts of the community.^ Unless she show that it was purchased with funds belonging to her and of which she ]iad the administration at the time, or that she was separated in property from her husband.* The wife cannot arrest the sale of the husband's property seized in execution on the mere ground of a prefeience over the seizing credi- tor.^ Nor can she defeat a sale of property seized by the husband's creditors, by alleging that the purchase money belonged to her. Her rights are subsidiary and to be exer- cised only in cases of insolvency and defect of other })rop- erty." ' Parminton v. Gunter, 22 S. W. if the creditor attacks it upon the 1008, 3 Tex. Civ. App 525. ground of fraud. Webb v. Peet, 7 - See UUmann v Jasper, 70 Tex. An. 92. 452, 7 S. W. 763. The seizing creditor may show the 3 Dees V. Seale, 5 An. 688; Brown nulUty of the judgment by any and V. Cobb, 10 La. 180; Dominguez v. all kinds of legal evidence, Hanna Lee, 17 La 300; Brusser v Wheeler, v. Pritchard, supra. 4 Rob. 117. ■' Marat v. Ferriere, 18 An. 665; * Hanna v. Pritchard, 6 An. 730. Vanhille v. Husband, 5 Rob. 496; Where a creditor of the husband Gil v. Gil, 10 Rob. 28; Fisher v. seizes property as liable for commu- Gordy, 2 An. 762. nity debts, which the wife claims as "^ Borie v. Borie, 5 La. 87; Ducrest having been acquired by her after a v. Bejeau, 8 Mart N. S. 192. judgment of separation of property, See further as to power of tracing it is incumbent upon her to show and preserving separate property affirmatively the reality and good from seizure for communitj' debts, faith of the judgment of separation, Chap. VI, ^ 164 and Chap. Ill, §66. 178 CHAP, v.] COMMUNITY LIABLE FOR PFvIVATE DEBTS. § 133 § 132. Liability of the Community for Antenuptial Debts of the Spouses. — As has been said, the community of husband and wife shoukl, primarily bear its own charges and expenses, and the private property of each member of the matrimony should likewise bear its own charges and expenses.^ But the community property is subject to a more extended liability, than the obligations created during coverture. It is expressly decided to be subject to the ante- nuptial debts of both the spouses by numerous decisions of the older communitv States. In Texas the liability of the community for the separate debts of either spouse contracted before marriage, seems to be placed upon the theory, that because the income of the separate property falls into the community, so also the charges against the owners thereof become community debts." It has become the settled law in Louisiana that the prop- erty of the community is liable to seizure for the debts of the husband contracted before the marriage, for the reason that as the husband has the right to alienate the effects of the community without the consent of the wife, creditors of the husband, before marriage, ought also to have the right to seize the effects of the community to satisfy their claims.^ § 133. Community Liable for Private Debts of Husband During Coverture. — But in those States where the fruits ^ Womack v. Womack, 8 Tex. 415. By the laws of Spain it is provided - See Moody V. Smoot, 78 Tex. 124, that the ganancial property is sub- 14 S. W. 285. ject to the debts contracted by the At the Spanish law, in respect of husband and wife durante el niatri- the debts contracted by either con- inonio, but not to those contracted sort before the marriage, the/;7^r/z/.y before marriage. L. 14, tit. 20, lib. of the dotal property may be levied 3, Fuero Real. on for those of the husband, and the ■' Davis v. Compton, 13 An. 396; dotal property, when there are no Guicev. Lawrence, 2 An. 226; Glenn bienes para/>kerna/es, may he levied v. Elam, 3 An. 615; see Hawley v. on for the debts of the wife. Carl- Crescent City Bank, 26 An. 230; Sue. eval. de Judicus, tit. 3, disp. 19, n. 2, of Curtis, 10 An. 652. et seq. 179 § 133 BALLINGER ON COMMUNITY PROPERTY. [cHAP. V. and revenues of the separate property do not fall into com- munity it is considered that the general powers of alienation and disposition of the community property by tlie husband as of his separate estate implies the power to charge the community estate with his separate obligations, both nuptial and antenuptial. And win' not? He may give away his separate property, and is not restrained from a like disposi- tion of the community property except in fraud of the wife. Why, then, with such exhaustive powers over the commu- nity estate, may he not have the implied jiower to pledge it for his private debts? The Supreme Court of California, in VanMaren v. Johnson,^ discussing the subject of the liability of the common prop- erty for the separate antenuptial debt of the wife, said : " The statute in terms provides that the separate property of the wife shall be liable for her debts contracted previous to the marriage, and, at the same time, that the separate property of the husband shall not be thus liable. It is silent as to the liability of the common property for such debts, and also as to the liability of that property for the previous debts of the husband. Yet the common property is not beyond the reach of the husband's creditors existing at the date of mar- riage, and the reason is obvious: the title to that property vests in the husband." And further adds that beyond the exemption of the husband's separate property for the debts of the wife, contracted dum sola, the husband is liable to the extent of the common property. The separate property of the wife and the common property of the husband and wife are equally liable for the debts of the wife contracted pre- vious to her marriage, and judgments recovered for such debts may be enforced against either class or both classes of property indiscriminately. This doctrine has been affirmed in subsequent cases in the same State.' It may be generally ^ 15 Cal. 312. see editor's notes 4 West Coast Rep. - See Packard v. Arellanes, 17 Cal. 309. 537; Vlautin v. Bumpus, 35 Cal. 214; 180 CHAP, v.] IN TEXAS COMMUNITY LIABLE, ETC. § 134 stated that the community i)roperty, in view of the husband having the absolute power of management and disposition thereof, in all the States, should be held to be subject to the private debts of the husband during coverture. This is true, however, in the State of Washington only as to community personalty, but not as to realty, since his powers of alienation thereof are restricted, and its liability confined by statute to community debts.^ § 134. In Texas Community Liable for Private Debts of Spouses Contracted Before Marriage. — The Supreme Court of Texas, in Portis v. Parker,^ construed the marital act of 1848 to make the common property of the husband and wife liable for the debts of the husband contracted before the marriage as well as those contracted during the marriage. Certain propositions were advanced by the court in Portis v. Parker, supra, but not decided, which were as follows: "Whether or not the whole common property should be subjected to the payment of the debts of the husband con- tracted before the marriage; whether or not the wife could invoke the aid of the court, in an}^ case, to prevent the common jjroperty being sold for the debts of the husband contracted before marriage, and, if she could, under what circumstances she could do it; and whether or not the com- mon pro})erty is subject to execution for the debts of the wife contracted before marriage." These questions have been subsequently answered by the same court, as will hereafter be seen. In Howard v. Nortli^ it was held that under the laws of Texas the husband is not liable for the separate debts of the wife, yet, if judgment be entered against the husband and wife jointly, with no specific directions as to the estate that shall be charged with the debt, the judgment will operate as a lien upon and may be satisfied out of the property of either or both. " There is no reason," says the court in Nash v. George,^ " why the debt of the husband ante- ^ Levy V. Brown, 53 Fed Rep. 568. ' 5 Tex. 302. 2 22 Tex. 704. ■• 6 Tex. 237. 181 § 135 BALLINGER ON COMMUNITY TROPERTY. [CHAP. V. cedent to marriage should be paid out of the community of gains which does not apply with equal force to the wife contracted duin sola. But I do not intend in this place to intimate any opinion that the community can be charged with liabilities of this character incurred by either member of the matrimonial partnership." It was, however, expressly decided in Roundtree v. Thomas^ that the husband could not be held liable for the debts of the wife contracted before the marriage, but that the same must be made, if at all, out of the separate property of the wife." § 135. In Texas Community Liable for Private Debts of Spouses Contracted Before Marriage — Continued. — In a later case decided in 1878, Taylor v. Murphy,^ where the same question was before the court, Chief Justice Moore, in commentino- on the law^ as laid down in Roundtree v. Thomas, •said: "In my individual o})iuion, the court by which that case was decided did not exercise its functions under and by virtue of the constitution and laws of the State of Texas, but merely by virtue of military appointment. I cannot regard the opinion of this tribunal as authoritative exposition of the law involved in the case upon which it was called to pass, but merely as conclusive and binding determinations of the particular case in wliich such opinion w\as expressed." And in deciding that the community property is liable to execution for the debts of the wife contracted before mar- riage, said: "At common law, though the wife has not property the husband becomes immediately liable for her debts, because he is entitled to all that she may earn during marriage. Now, with us the wife is supposed to be an equal contributor to the community estate. At least the revenues and profits derived from her separate estate, as well as what- ever she may acquire by her industry and labor during coverture, become a part of it, and are subject to the uncon- 1 32 Tex. 286. written by Lindsay, J., in 1869, an - The opinion in this case was appointee of General Sheridan. » 50 Tex. 295. 182 CHAP, v.] LIABILITY OF COMMUNITY. § 13G trolled possession and disposal of the husband. Is it un- reasonable then to hold that he is liable for the antenuptial debts of the wife to the extent of the community estate in his hands? And if the third section of the act of the 13th of March, 1848, for -'better defininsj the marital rights of parties,' must be construed as limiting the liability of the community estate 'for debts of the husband and for the debts of the wife contracted during the marriage for neces- saries,'^ then it should also be held that the antenuptial debts of the wife must be regarded, by the principles of common law, as modified by our statutes, as heretofore indi- cated, after 'the wife's separate property has been exhausted, to be debts of the husband." And in a more recent case, Lee v. Henderson^ the above doctrine was affirmed by the court in the following language: " It was held, under the laws as they existed before the j)ass- age of the Revised Statutes, that community property was subject to the antenuptial debts of tlie wife,'' and we think there is stronger reason for holding such property subject to the debts of the husband. There has been some change of the language of the old statute as incorporated into the new, but we think there is no substantial change intended." ^ Such being the doctrine of the Texas courts, a union of man and woman in that State comes very nearly being a French marriage, to which the maxim may be applied, "gm epouse la femme, epouse les dettes,^^ or, as under the common law, where the husband adopted her and her circumstances together. § 136. Liability of Community for Necessaries. — The statutes in a majority of the States have recognized the liability of the separate property of the spouses as well as of the community for articles of necessity for the support of the ' Paschal' s Dig., Art. 4642. ■* vSee also 3 Tex. App. C. C. | 77; - 75 Tex. 193, 12 vS. W. 981. I Tex. App. C. C. ^ 145; Moody v. ^ Taylor v. Murphy, 50 Tex. 291. Smoot, 78 Tex. 124, 14 S. W. 285. 183 § 137 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. family. These statutes have, perhaps, a stronger claim for support in those States where the husband has the possession and administration of the wife's effects during coverture than wliere she is not so hampered. Under the common law, which made her a servant of the husband, and merged her property rights in his own, the ample authority in the wile to bind his estate for necessities of life was a natural and rational result of the marriage status. § 137. Rule in Texas. — '"The law will not presume so much ill as that the husband should not provide for his wife's necessaries,' says Lord Hale; yet, this being proved, the law will not do so much ill as to leave her without necessaries," aptly remarks Justice Hemphill. "The rule that the husband should and shall be liable for necessaries furnished the wife is one of general obligation. It is founded on the most substantial reasons. At common law, he has by marriage all the personal property of the wife and the rents, issues and profits of the real estate. Under the laws of Spain and Louisiana the proceeds of the separate property of each partner, as a general rule, become common property under his control to defray the charges of the matrimony. Under our laws he has the active administration and dis- position of all community property, and is in receipt of the proceeds of t]\e separate property of the wife; and it is not witliout reason that he should not at least be primarily liable for all the charges of every description incurred during the marriage, as well for necessaries for his wife and children as for expenses for her separate property, provided the proceeds of such property in his hands are sufficient for the discharge of such expenses." ^ The Texas statute has a full provision on this subject: "The wife may contract debts for neces- saries furnished herself or children, and for all expenses which may have been incurred by the wife for the benefit of her separate property, and for such debts suit may be brought ^ Christmas v. Smith, lo Tex, 126. 184 CHAP, v.] RULE IN CALIFORNIA AND OTHER STATES. § 138 in the manner prescribed in Art. 1205." ^ The object of the statute was to give the power to the wife to charge her sepa- rate property, but it seems to us it was not intended to exempt the community property from liabihty. The highest considerations of justice demand that the community prop- erty should be chargeable with debts contracted by her for necessaries for herself and children, and it would be most inequitable and unjust that the community property should be made to respond to the husband's debts contracted for the benefit of his separate estate, and should not be liable for debts contracted for hers," says the court in Moody v. SmootJ^ § 138. Rule in California and Other States. — In Cali- fornia the code provides that "If the husband neglect to make adequate provision for the support of his wife, except in the cases mentioned in the next section (during separation, with or without consent, unless justifiable abandonment), any other person may, in good faith, supply her with articles necessary for her support, and recover reasonable value thereof from the husband."^ By the general statutes of Washington,* "The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.'^ The rights of the wife in Louisiana regarding the power to procure necessaries of life for herself and children are ex- tremely limited.® Since the husband's authorization is only implied in contracts entered into by her to procure such necessaries when his neglect to supply them gives rise to 1 Art. 2854, Sayle's Tex. Stat ; see Nisson v. Bendixsen, 69 Cal. 521, also Art. 2855 * ^ 1414. "- 78 Tex. 124, 14 S. W. 285. 5 See Littell & vS. Mfg. Co. v. 3 Cal. C. C. i 174. See U I75, 176. Miller, 3 Wash. 483. See as to sufficiency of complaint in " Art. 1779, C. C. 185 § 139 BALLIXGER ON COMMUNITY PROPERTY. [CHAP. V. that emergency/ The debts authorized to be satisfied out of the community, under the articles of the code, must be contracted by the wife, or by her express authority; and must be for necessaries for herself or children, or for the benefit of her separate property.^ § 139. Rule in Cases of Abandonment. — It is held in Texas that the liability of tlie husband for necessaries fur- nished the wife is not affected by the fact that she had, with- out allegation of fault on her part, deserted her husband's house and was taking measures to procure separation from > Johnson v. Pike, 14 An. 731. Walling v. Hannig, 73 Tex. 580, 11 " Christmas v. vSmith, 10 Tex. 123; S. W. 547. Milburn v. Walker, 11 Tex. 329; Where the wife was in the habit Stansbury v. Nichols, 30 Tex. 145; of making purchases for the use of McGee v. White, 23 Tex. 180; Sor- the family with her husband's rel V. Clayton, 42 Tex. 193; Crump- knowledge, and without his objec- ler V. McFadden, 20 Tex. 376; tion, the bills for which he had Brown v. Ector, 19 Tex. 347; War- often paid, he will be boiind to pay ren V. Smith, 44 Tex. 245; Harris v. the amount of such purchases. Williams, 44 Tex 124; Butler v. Chaix v. Villijoin, 7 La. 276. Robertson, 11 Tex. 142; Carothers The hu.sband after separation by V. McNeese, 43 Tex. 221; Smot- divorce is liable for supplies and ridge v. Lovell, 35 Tex. 58; Wright necessaries furnished the family, V. Blackwood, 57 Tex. 644; Coving- although the articles were furnished ton V. Burleson, 28 Tex. 268; Cart- on the faith and credit of the wife's wright V. Hollis, 5 Tex. 152; Calli- property. Payne v. Bentley, 21 han V. Patterson, 4 Tex. 61; Morgan Tex. 454. V, Hughes, 20 Tex. 141. While the husband is bound to Where goods purchased by the provide for his wife and his family, wife were used for more than a year and while he is not guilty of any in the house occupied by herself cruelty and is willing to provide and husband, and after the husband her a home and reasonable neces- was informed that they were bought saries there, he is not bound to fur- on credit he failed to return or offer nisli them elsewhere. Morgan v. to return them unless a partial pay- Hughes, 20 Tex. ment made on the bill should be Where the articles purchased were refunded, and had otherwise tacitly necessaries for the wife the husband confirmed the acts of his wife, it is liable, whether credit be given to was held that he was bound for their the wife or not, she having no sepa- payment whether necessaries or not. rate income of her own under her Whether they were or not necessa- control. Black v. Br3-an, 18 Tex. ries is a question of fact for the jury. 461. 186 CHAP, v.] AVIFE's separate PROPERTY LIABLE, ETC. § 140 the marital relation, of all which plaintiff had notice, and dealt with the wife as though separation had been obtained, takino- her note for the amount incurred; nor by the further fact, taken in connection therewith, that since the necessaries were furnished the wiie had procured separate support and maintenance, amply sufficient for her support and the pay- ment of this demand. The wife would be entitled in many instances to necessaries, that is, tliat the husband would be liable for necessaries furnished her although the separation may have been by her only, as, for instance, where the sepa- rate property is under her husband's control, or there is a sufficient amount of common [)roperty. The necessaries for wliich the husband is responsible are such as are suitable for the wife's station in society and the condition and estate of her husband.^ § 140. Wife's Separate Property Liable Only for Neces- saries Purchased by Her. — Hays the court in McGee v. Wliite:'^ "We are of opinion that the law imposes upon the husband tlie obligation to support his wife and children. If he have separate property, and there is no common property, it canngt for a moment be pretended that his separate prop- erty cannot be charged for necessaries fur the support of his family. The law recognizes him as the head of his family. It declares that he shall support his children, because every man is under obligation to provide for those descended from his loins.^ It declares tiiat he shall support his wife; first, upon the theory that her existence is merged in his, and, secondly, because her duties while cohabiting with her hus- 1 Black V. Bryan, i8 Tex. 464. wife on the implied authority which The husband was held liable in she carries with her. Until the Heney v. Sargent (54 Cal. 396) for divorce or separation by agreement furniture sold and delivered to the the wife is entitled to be supported wife without authority from the by the husband either at his house husband while she was living apart or some other place, in the house rented by him for her - 23 Tex, 192. and her sons' use. The vendor, it ^ Blackstone Com. is said furnished the goods to the 187 § 140 BALLINGER ON COMMUNITY PROPERTY. [cHAP. V. band, are held to form the consideration of his habihty for her proper maintenance.^ In this State he may devote his separate property to the support of his family ; or, if there be common property, he may devote that to their support. In addition to this, the law permits the wife to contract for necessaries for herself and children, and to incur expenses for their benefit of her separate property; and her separate property is bound for such necessaries and such expenses. But I can find nothing in our statutes, nothing in the com- mon law, and nothing in the decisions of the courts of chancer}^ which support the proposition that the wife is under legal obligation to support the husband, or that her separate estate can be charged even for necessaries for him."^ In Texas it is held that independent of the statute tiie wife's separate property is responsible for necessaries purchased by her, or by her authority, for the family generally, where the husband has no property and there is no common property. This rule is said to be subject to modification.^ In any event, a levy can be made on the wife's separate property only where there is no community property, and it would seem that if the husband has separate property that such charges should be defrayed therefrom.* ' Kent. The separate property of the wife - See Haines v. Stovall, 23 Tex. cannot be charged on an account 626; see contra Brown v. Ector, 19 made, or on a note executed by her Tex. 346. jointly with her husband, for neces- 3 Christmas V. Smith, 10 Tex. 126. saries purchased for her husband ♦ Where the husband has no sepa- or for other members of the family rate estate, and there is no commu- than herself and children. Hutch- nity property, and the wife rents a inson v. Underwood, 27 Tex. 255; house for the use of herself and Stansbury v. Nichols, 30 Tex. 150. family, such rent is a charge upon It is not sufficient to prove that her separate estate if the sum be the articles were purchased by the reasonable in amount. Harris v. wife and were necessaries lor the Williams, 44 Tex. 124. family; the proof must exclude the The wife's right of support is not idea that they were purchased for lost by reason of her htisband's the benefit of the husband, for abandonment of her without fault although he is a member of the on her part. D. & W. Ry. Co. v. family, yet a necessary for him is Spickler, 61 Tex. 431. not one which under the statute 188 CHAP, v.] REIMBURSEMENT OF COMMUNITY. §141 § 141. Reimbursement of the Community for Commu- nity Funds Used for the Separate Benefit of the Spouses. — The community is generally held to become a creditor of the spouses, and entitled to a reimbursement out of their separate estates, for all community funds advanced or labor or expenses bestowed by them on the separate estates of either consort, and this being true, the amount of such credit due the commu- nity is subject to the debts of the community. The creditors, however, of the communit}^ are postponed in their rights until a liquidation of the community can be effected, and cannot seize the separate estate for the satisfaction of their claims, even to the extent of the reimbursement due to the communit}^, unless, perhaps, in exceptional cases, as where the separate estate has lost its identity by being intermingled with community property. The doctrine is firmly estab- lished that where the separate property of either member of the community is developed or improved with community funds, in good faith, the community estate is entitled to reim- bursement out of the separate estate so improved,^ but gives no rights in the land itself If the monevs of the commu- nity have been used by either spouse in the purchase or imjjrovement of separate property, the advancement consti- tutes a charge on the separate property for reimbursement would charge the wife's separate liable, although the husband has no property. The couinuinity, how- separate estate and no other prop- ever, would of course be liable there- erty except the revenues of the for. Christmas v. Smith, lo Tex. wife's property and his own indus- 123; compare Magee v. White, 23 try which fall into community. Tex. 180. Lobit v. Harman, 13 An. 593. The wife is not responsible for ' Furrh v. Winston, 66 Tex. 521, supplies furnished the husband for i vS. W. 52S; citing Rice v. Rice, 21 his own use, particularly when it is Tex. 66; Bond v. Hill, 37 Tex. 626; shown that the revenues of her prop- see Smith v. Smith, 12 Cal. 224-5; erty were not ample to pay the or- Dunham v. Williams, 32 An. 162; dinary expenses of the family. Frique v. Hopkins, 4 Mart. N. S. The mere fact that goods fur- 220; Dominguez v. Lee, 17 La. 300; nished during the existence of the Hughey v. Barrow, 4 An. 249; Noe community are for the family use, v. Card, 14 Cal. 595. does not, in general, render the wife 189 § 142 BALLINGER ON COMMUNITY PROPERTY. [CIIAP. V. out of such separate estate, and creditors of the community may reach the separate property to this extent/ Likewise, it is held the community must be credited with an amount paid by it for the wife's debt, due before marriage."' Wliatever right one of the spouses may have to claim a recompense from the other for funds of the community employed for the separate benefit and advantage of such spouse, either in pay- ment of his or her debts contracted anterior to marriage, or in the increase and improvement of the hereditary property of said spouse, this right can only be exercised at the disso- lution of the community.^ § 142. Rule in Louisiana. — By virtue of special statu- tory provisions in Louisiana if the separate property of either husband or wife has been increased or improved during marriage by the common labor, expense or industry of both, the other spouse, or his or her heirs, shall be entitled to one- half the value of the increase or amelioration.* The converse of this proposition is equally true, that if the community has been enriched by the separate funds of either spouse, it is indebted pro tanto at the dissolution to the separate estate of the spouse whose funds have so enriched it, and this is as much a debt of the community as if it were due from a tliird person. Like any other debt, its origin, character and amount must, however, be satisfactorily shown.^ The hus- band has no right of action against his wife during the ex- istence of the community for any sums of money he may ' See Noe v. Card, 14 Cal. 607; An attempt to garnish the wife citing Lawson v. Ripley, 17 La. 23S; and render her Hable for an alleged Fuller V, Ferguson, 26 Cal. 568. indebtednesstothecommunity funds - La. C. C. 2372. finds no support in any of the prin- Childers v. Johnson, 6 An. 634; ciples of our law, applicable to the see Werner v. Kelly, 9 An. 60; De- rights and obligations of married gray v. St. Pe, 4 Mart. N. S. 404; C. persons or to the natural character C. 2377; Waggaman v. Zacharie, 8 of the conjugal partnership, says the Rob. 181; Mercier v. Canonge, 12 court in Kelley v. Robertson, .y? See Portis v. Parker, 22 Tex. - This statute will be found by 709-7. reference to the Appendix. 197 § 148 BALLINGER ON COMMUNITY PROPERTY. [cHAP. V. for the wrongful levy by the husband as constable, from be- ing made out of community realty, the Supreme Court, in Brotton v. Langert,^ said : " Construing all the provisions of the ciiapter^ together, we cannot escape the conclusion that the object of the law was to protect, so far as is consistent with transaction of ordinary business, one spouse from the misdeeds, improvidence or mismanagement of the other con- cerning property which is the product of their joint labor. * * * The statute provides the ways in which this prop- erty can be alienated; first, the voluntary alienation by the husband and wife joining in the deed; second, by making it responsive to certain demands constituting liens by the statute; and there is no other way contemplated. In fact, the very object of the law is to prevent its alienation in any other wa3^ It expressly provides that the husband shall not sell, convey or encumber it, and he will not be allowed to do b}'' indirection and fraud that which he is directly pro- hibited from doing." The judgment obtained in the action being for a tort committed by the husband, was held not to be for a community debt, and hence not subject to satisfaction out of community lands. The language in this case is, per- haps, broader in its scope than the court intended it, yet so far as the principle is concerned, that a tort is not a community debt and that the statute in question will not warrant the separate debts of either spouse to be satisfied out of commu- nity realty, the case is an authority. Attention is called to the able dissenting opinion of Stiles, Justice, rendered in this case. In the case of Spinning v. Allen (Wash.), filed January 10th, 1895, not j^et reported, the Supreme Court of Washing- ton held that the debt or obligation of the husband by virtue of a contract of suretyship, is his separate or private debt, and that communitv real estate cannot be held to satisfy a judgment obtained upon such contract. The court says: '*We have held that debts contracted by the husband in carrying on a business which is prosecuted in the interests 1 I Wash. So. - Chap 1S3, code '81. 198 CHAP, v.] WHAT ARE COMMUNITY DEBTS. § 150 of the community are community debts, on the ground that as the community receives the benefits of such a business it should be held liable for the losses. But we have never held the communit}- real estate liable for a suretyship debt." ^ § 149. All Debts Contracted by Husband During Cover- ture Prima Facie Community. — To a certain extent the disadvantages springing from the restraint on the separate debts of the husband being a charge against community realt}' are mitigated by the principle that every debt con- tracted by the husband during coverture is prima facie a community debt. "All property," says the court, "acquired by him is prima facie community property, and we think that justice and good conscience demand that the other pre- sumption should also prevail." ^ This rule, however, is as old as the community system, and was recognized in Spain and is now recognized in all the other States. While it may be said that every debt ex-contractu of the husband is prima facie a communit}'- debt, this statement itself implies that there may be debts contracted by the husband which cannot be satisfied out of the community and whicli are not com- munity debts. The presumption alluded to is a mere rule of evidence, and may be overthrown, like the presumption that all property acquired during coverture by onerous title is common propert}^, by clear and satisfactory evidence to the contrary. This leads us to consider when the obligation of the husband may be said to create a community debt and when not. § 150. What Are Community Debts. — A community debt under this statute would of course suggest itself as one contracted by the husband in the ordinary course of his business as managing agent of the marital partnership, whether the transaction turn out to be a benefit or a disad- ^ See also Ivittell & Smithe Mfg. - Calhoun v. Leary, 6 Wash. 21-2; Co. V. Miller, 3 Wash. 4S0; Stockand Andrews v. Andrews, 3 Wash. Ter. V. Bartlett, 4 Wash. 730; Levy v. 289; Bierer v. Blurock, 9 Wash. 63. Brown, 53 Fed. 568. 199 §150 BALLINGER ON COMMUNITY PROPERTY. [cHAP. V. vantage to the pecuniary interests of the community, so long as the husband acts in good faith and not in fraud of tlie rights of the wife and third persons.^ To confine com- munity debts to only such contracts as result in a benefit to the community would impose on the husband and all who deal with him, on the faith of the common property being a security for the debts, the necessity of being certain that tlie contract w^ould result in a benefit to the community, which, manifestly, could not be ascertained in advance in the conduct of the varying fortunes of business transactions. In conformity with these principals, it was said in Oregon Improvement Company v. Sagmeisier,^ Hoyt, Justice, speaking for the court: "Was the debt for which the judgment in question was recovered a community debt? The undisputed facts showed, and the court below found, that it was for materials furnished to the husband in the prosecution of his business as contractor and builder. Is a business prosecuted by the husband in the interest of the community, and from which the community will receive the benefits and profits, if there are any, a community business? We think it is. We cannot conceive that it was the intention of the Legisla- ture to have created an entity, and to have provided that all property coming into the hands of the husband should be prima facie the property of such entity, without at the same time having intended that the action of such husband in his efforts to obtain property should be prima facie in the interest of such entit3^ If the husband obtained any prop- erty by virtue of his exertions, it would, prima facie at least, be the property of the community, and we think it must follow that in his efforts to obtain property it must prima facie be presumed that he acts for the community. Apply- ' O. I. Co. V. Sagnieister, 4 Wash, execution of a promissory note by 710; Abbott V. Wetherby, 6 Wash, the husband alone, is that it was 509; Andrews v. Andrews, 3 Wash, given for a community debt. Bierer Ter. 289. V. Blurock, 9 Wash. 63. The presumption arising from the - 4 Wash. 711. 200 CHAP, v.] WHAT ARE COMMUNITY DEBTS. § 151 iiig these principles to the case at bar, it must be held that the husband, in conducting such business as contractor and builder, was acting for the community; and, thus holding, it would not only be an anomalous but an unconscionable position to hold that the community was not at least prima facie responsible for the results of such business. If the busi- ness resulted in a profit, such profit would belong to the community. Can it with good conscience be said that if it resulted in loss the community should not be responsible? We think that every legal business conducted by the hus- band is prima facie in the interest of the community, and that unless something appears to establish the contrary, the community is entitled to the profits thereof, and must bear the losses incident thereto. It follows that, under the cir- cumstances of this case, the property of the community must be held to respond to the judgment in question."^ § 151. What Are Community Debts — Continued. — It w^ould seem that if the husband were acting within the scope of his powers as the managing agent of the community, all obligations incurred by him in that capacity should impose a correlative obligation upon the community to pay the same, and should be a legitimate charge upon all commu- nity property, both real and personal, and this should be the prevailing rule. It is not outside the scope of the husband's authority, it seems to me, under a liberal and proper con- struction of the statute, for him to become accommodation maker or surety for' others, and such obligations should be treated as prima facie the obligations of the community .'^ The same court has VQC,Qni\y,\i\ Spinning v. Allen (not yet reported), held the community lands exempt from a surety- ship debt of the husband. In the case of Littell & Smyths Mfg. Co. V. Miller, supra, it was said that, " The management and control of the community real property is given to the ' McDonough v. Craig (Wash.), - See Brotton v. Langert, i Wash, not reported. 73, 86. 201 § 152 BALLINGER ON COMMUNITY PROPERTY. [tlllAP. V. husband, and the statute speaks as though he is the only member of the community who, acting alone, can create a charge against the same for improvements, and it plainly implies tliat he may do so, and also create debts against the community otherwise, independent of au}^ action on the part of the wife, by virtue of which a judgment lien may be obtained upon the community lands. It also provides that such lands may be sold on execution issued upon a judg- ment for a community debt, and, if it means anything, it means that such debts may be created by the husband inde- pendent of any specific appointment of him by the wife as her agent to represent her in community matters, and with- out any participation by her in the contract. To this extent the law appoints him the agent of the community; for where both members of the community contract, their com- munity property would be liable tlierefor without the pro- vision, as would also their separate property, so far as the creditor is concerned, although it might be as between each other they would under some circumstances be entitled to relief; and although the court might, upon request, require that either the separate property of one, or the community property, as the case might be, should be first exhausted. No such powers seem to be given to the wife generally in relation to the community matters." The rentals, issues and profits accruing from community realty are subject to the unrestrained disposition of the hus- band in the same manner as other personalty belonging to the community, and hence are subject to his individual debts.^ Under § 2407, Code 1881, the wife can create a charge against the community estate, whether real or personal, for necessary family expenses.^ § 152. Earnings of Wife. — The earnings of the wife received as wages or as personal recompense for services per- 1 Levy V. Brown, 53 Fed. Rep. = L. & S. M. Co. v. Miller, 3 Wash. 568. 483- 202 CHAP, v.] VOLUNTARY ASSIGNMENT BY HUSBAND. § 153 formed during coverture do not lose their community char- acter unless she be living separate and apart from her husband and, if she be living with her husband, any money saved by her from funds given her by her husband for household expenses continues to retain its community char- acter and is liable for the debts of the community/ The statute seems to definitely distinguish the rights acquired by wives who are living with their husbands, from the rights acquired by waives living separate therefrom.'^ Section 144G General Statutes of Washington confers additional powers upon the spouses so that either can constitute the other his or her attorne}' in fact to do all that the law empowers the other to do, so that the wife could thereby be constituted the managing agent of the community.^ A recent enactment of the Legislature of Washington* has specifically provided for subjecting community property to the payment of com- munity debts in cases of insanity of either spouse. This statute recognizes the equality of the spouses in rehition to their rights and interests in community })roperty. § 153. Voluntary Assignment for Benefit of Creditors by Husband. — Under the insolvent debtors' act the husband in Washington, being restniined by the statute from dis- posing of community realty by his sole deed, unquestion- ably would not be able to make a voluntary assignment for the benefit of creditors of a business he was conducting dur- ing coverture, where any part of the assets of the commu- nity estate was realty, without the wife joining him in the deed of assignment, so far as the transfer of the realty is concerned. It would seem on principle that the liusband could not make a confession of judgment, for debts con- tracted by him during coverture, so as to operate on com- 1 Abbott V. Wetherby, 6 Wash. « See L & S. M. Co. v. Miller, 3 512. Wash. 483. -See ^^ 1402, 1403, Gen. Stat. * Session Laws of 1893, p. 289. Wash.; Abbott v. Wetherby, 6 Wash. 512. 203 § 154 BALLINGER ON COMMUNITY PKOPERTY. [cHAP. V. munity lands, without the joinder of the wife. Andrews v. Andreivs^ seems to hold otherwise, however.^ § 154. Gifts Between Spouses — Fraud on Creditors. — The effects of the community, as heretofore stated, are in the nature of a trust fund for the security and satisfaction of the charges created for the maintenance and support of the marital establishment. It is not created nor erected by the law for the purpose of enabling the spouses to sequester or withhold from their just obligations the fruits of their skill and industry, but must be held to be subject to the estab- lished maxims and rules of law and equity, which regulate the rights and liabilities of all persons, natural and artificial. Since creditors of the husband have the right to look to the community for the satisfaction of their claims, neither the husband nor the wife can by any gift or voluntary aliena- tion dissipate the community property so as to defeat the rights of bona fide creditors. But so long as their rights are not encroached upon, the husband may convey to the wife community property, so as to vest the title in her as a part of her separate property.^ In transactions of this kind, when it is made clear that the husband intended by his acts to vest title in the wife as her separate estate, the compact is held to be consummated, and her title is perfect except as against creditors.* Generally, no third party can question ' 3 Wash. Ter, 2S6. joininjr in the deed. Such assign- - See as to parties, Chapter VI, ment is only a surrender of the Part II. See also Purdom v. Boyd, property into the custody of the 82 Tex. 130, 17 S. W. 606. court, to be applied as the law re- Since the preparation of the fore- quires. (Such assignments, how- going, the Supreme Court of Wash- ever, being voluntary and bene- ington, in Thygeson v. Neufelder, ficial, this decision can hardly be 37 Pac. Rep. 672, have announced regarded as a sound interpretation the rule to the contrary of the text, of the law. ) and in effect decide, that a husband, ^ Brown v. Brown, 61 Tex. 56; in the absence of fraud, may assign Reynolds v. Lansford, 1 6 Tex. 286. all the community property for the * See Richardson v. Hutchins, 68 benefit of community creditors, in- Tex. 81, 3 S. W. 276, and cases elusive of realty, without the wife cited. 204 CHAP, v.] TRANSFERS BETWEEN SPOUSES. § 155 such transactions unless he be a creditor of the husband be- fore or at the time the conveyance is made, or a subsequent bona fide purchaser without notice.^ It is the general rule that the acts by which a debtor alienates his property can only be considered as fraudulent against creditors who are such at the time of the alienation. Yet subsequent creditors may be considered as being injured by such disposition, and have a right to cause them to be annulled, if they were made with the intention to provide the means of defrauding such creditors.'"^ § 155. Transfers Between Spouses Not Fraudulent per se as to Creditors. — The general rule is, that if a donor at the time of making the gift be insolvent, liis conveyance may be set aside as to all existing creditors, for its necessary effect, under such circumstances, is to hinder, delay and defeat the collection of their claims out of the fund from whicli they have tlie right to look for payment. But a gift from husband to wife is not necessarih' fraudulent and void as to existing creditors. It might be a badge of fraud, a circumstance to be considered in determining whether the intent was fraudulent, if it were shown that he was then heavily involved in debt. But it does not follow that because a man may be indebted to an inconsiderable, or even a considerable amount at the time, that he cannot set- tle a part of his property upon his wife or children, pro- vided he retains an ample amount to liquidate his just debts.^ The law regards with favor a provision made by the husband, when not in failing circumstances, for his wiie ^ De Garca v. Galvan, 55 Tex. 53. And there is no legal presumption - Brown v. Ferguson, 4 La. 257. that a convej-ance by husband to As a general rule a deed cannot be wife is fraudulent as against a judg- attacked for fraud by a creditor ment creditor whose judgment was whose claim originates after the recovered after the conveyance. execution of a deed, or who acquires Hussey v. Castle, 41 Tex. 239. a claim with notice of the convey- ^ Yslw Bibber v. Mathis, 52 Tex. ance. Lehmberg v. Eibberstein, 51 406; Morrison v. Clark, 57 Tex. 445. Tex. 457. 205 § 156 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. and family against tho possible misforiuiic of a future day.^ Debts contracted subsequent to the making of a donation of community property to the wife are not affected by such conveyance, for it is only present, existing creditors who can assail such transfers for fraud.^ Unless, as before stated, they were made purposely to defraud subsequent creditors. § 156. Transfers from Husband to Wife Valid Between the Parties. — As between the husband and wife, and all others not claiming as innocent purchasers, or as creditors under the charge of fraud, where the husband ordered the deed to be made in cases of purchase in the name of the wife, the law presumes that the property was intended for her, and not for himself or the community.'^ The subse- quent sale by the husband will not defeat the previous con- veyance to the wife.* Nor will the fact that it remained under his control ordinarily impair the gift.^ But when the husband intends to relinquish his right in community prop- erty, a transfer to his wife must be explicit, and such as to- leave no doubt of his intention.*^ The fact that a husband causes laud which he purchases to be conveyed to his wife, with the intent to shield it from his creditors, will not give the wife a separate estate in the land in the absence of re- citals in the deed sufficient to create in her a separate right in the property, or unless the purpose of the husband be clearly shown to create in the wife a separate title. Of course, his undisclosed purpose would not affect the right of a purchaser for value from him, who had no notice of inten- tion to create a separate estate in the wafe thereto.^ The 1 Baker v. Konenian, 13 Cal. 10. Higgins v. Johnson, 20 Tex. 389; - Higgins V. Johnson, 20 Tex. 389, Smith v. Boquet, 27 Tex. 512. 70 Am. Dec 394; Baden v. Gose, 57 * Smith v. Strahan, 16 Tex. 314. Tex. 41; Van Bibber v. Mathis, 52 '^ Parks v. Willard, i Tex. 350; Tex. 406; see Gaston v. Wright, 18 Edrington v. Mayfield, 5 Tex. 363; S. W. 576; Frank v. Frank, 25 S. Reynolds v. Landsford, 16 Tex. 292. W. 819. " Parker v. Chance, 11 Tex. 519. 3 Story V. Marshall, 24 Tex. 305; ' Gaston v. Wright, 83 Tex. 282, iS S. W. 576. 206 CHAP, v.] HUSBAND MUST ACT IN GOOD FAITH. § 157 fact that the wife pays no consideration for lands deeded to her by her husband, and that she is cognizant that the transfer to lier is made with the design to defraud her hus- band's creditors, will not prevent the title from vesting in her. She would consequently be a necessary party in the forclosure of a lien upon sucii lands.^ § 157. Making Transfer Husband Must Act in Good Faith. — The insolvency of the husband in Louisiana, will not prevent a conveyance of property by him to his wife for the purpose of replacing her dotal and paraphernal effects, alienated by him during marriage. Where, however, the husband has given an unjust advantage to his wife, under pretext of replacing her dotal or paraphernal rights, credit- ors are not without a remedy.^ And in Texas he may con- vey his separate or community property to his wife to reimburse her for an appropriation by him of lier separate estate, or may exchange common property with her for separate property belonging to her; and so long as he acts in good faith in such transactions and they are free from any taint of fraud, creditors cannot say that they are in pre- judice of their rights, but the onus to show the bo7m fides of such transactions is on the party asserting it.'' It is said in Dixon V. Sanderson : ^ " The voluntary conveyance of prop- erty by one indebted is evidence of fraudulent intent, and the burden of showing that this did not exist rests upon the donor. This may be shown by proof of the fact that the debtor, at the time of the conveyance, had ample means remaining to discharge all his pecuniary liabilities then existing. If a donor at the time of making a gift be insol- vent, his conve3'ance is void, for its necessary effect is to hinder, delay, or defraud creditors; but the mere fact of indebtedness alone is not sufficient to render a voluntary 1 Frank v. Frank, 25 S. W. 818. see Barziza v. Graves, 25 Tex. 322; - Judice V. Neda, 8 An. 484; Spur- Ross v. Kornrumpf, 64 Tex. 390. lockv. Mauer, i An. 301. ■• 72 Tex. 359, 10 S. W. 536. ^ Green v. Ferguson, 62 Tex. 525; 207 § 157 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. conveyance void. If, however, looking to the magnitude of the gift, the amount of indebtedness existing, and the value and character of the property left to the donor after making the gift, it does not appear that the assets remaining in the hands of the donor were ample to satisfy all his debts, then a voluntary conveyance ought to be held fraudulent. It should appear, also, that the property remaining in the hands of the donor, even if sufficient to discharge all his debts, was such as was readily and conveniently accessible to his creditors under the ordinary process used in the collec- tion of debts, or a voluntary conveyance ought to be held fraudulent." The husband cannot, however, make a con- veyance to his wife of his community interest in tlie com- munity property, which is subject to the payment of community debts, so as to withdraw it from the reach of community creditors, although he may make a gift of his community interests; but he cannot so contract that the future gains and profits thereof shall be exempt from the payment of community debts existing or which may be afterwards contracted.^ It is well settled in California, that the husband may give tlie common property to the wife, he being at the time free from debts and liabilities,^ and the same will become her separate property and not liable for debts afterwards con- tracted by him.^ It has been held that the verbal gift of personal property (a piano) by the husband to the wife, the property being delivered to and continually used by the wife as her prop- erty, would be valid and effectual between herself and her husband and all the world, except existing creditors and bona fide subsequent purchasers without notice. There is no presumption of its invalidity as to subsequent creditors. 1 Green v. Ferguson, 62 Tex. 525. 441, 89 Am. Dec. 195; see Dow v. 2 Kohner v. Ashenauer, 17 Cal. Curry, 31 Cal. 630; Woods v. Whit- 582. ney, 42 Cal. 361; Higgins v. Hig- =* Peck V. Brummagim, 31 Cal. gins, 46 Cal. 260. 208 CHAP, v.] TRANSFERS BETWEEN SPOUSES. § 158 "Being free from debt the husband had the right to trans- fer his interest in the property to his wife by gift." ^ A judg- ment obtained by the wife against her husband on his confession, although conclusive between themselves, is liable to be impeached on the ground of fraud and collusion by third persons, against whom it ma}' operate.^ § 158. Transfers Between Spouses Valid in Washington if Not in Fraud of Creditors. — In Washington, by express statutor}^ provision, gifts and conveyances from one spouse to the other of community interests in real property are recog- nized, with the exception that they shall not affect any existing equity in favor of creditors of the grantor at tlie time of the gift or conveyance.'^ The burden of proof of the bona fides of such transactions between husband and wife is upon the party asserting it by special statutory enact- ment,* but we think the same would be true in transactions between the spouses, so far as creditors are concerned, with- out such statute. As between husband and wife a sift or purchase of the other's community interest would vest the entire title in the one to whom given or transferred. But as against creditors, either a gift or a purchase thereof made with intent to defraud creditors would be void as to them, and a fraudulent conveyance between husband and wife of community property is not a transfer by one joint debtor to another.^ Money saved by a wife from funds given her by her husband for household expenses does not thereby lose its community character and become separate property, and ^ Kane v. Desmond, 63 Cal, 464. or to deceive piirchasers from him, A verbal exchange of personal is valid as against his heirs. They property is valid between husband are not placed upon the same foot- and wife as against subsequent ing as creditors and purchasers, creditors. Kendrick v. Taylor, 27 Willson v. Trawick, 10 Tex. 428; see Tex. 698. McClenny v. Floyd, 10 Tex. 159. 2 DeBlanc v. DeBlanc, 4 La. 419. ^ | 1443 Gen. Stat. Wash. A conveyance from husband and * g 1455 Gen. Stat. Wash, wife with intent to defraud, hinder ^ pj^ing v. VanWagenen, 6 Wash. or delay the creditors of the grantor, 39. 14 209 § 158 BALLINGER ON COMMUNITY PROPERTY. [CHAP. V. a statement by the husband that his wife had selected cer- tain lots; that she had always worked liard and earned a great deal of money, and that he intended the land as a home for her, cannot be construed as creating a separate estate therein by gift, when the land had been purchased with community funds. Such lands are liable for commu- nity debts.^ 1 Abbott V. Wetherby, 6 Wash. 507; see Cox. v. Miller, 54 Tex. 16. Examples. — A voluntary convey- ance by a parent to his child, made when the parent is in embar- rassed circumstances, is not neces- sarily fraudulent. The indebtedness at the time of the conveyance is a badge of fraud to be considered in connection with all the facts to de- termine the intention of the grantor. Van Bibber v. Mathis, 52 Tex. 406. When a conveyance is made by husband and wife of property pre- sumed to be community property, but which in equity is the ^^^fe's separate estate, though the conve}^- ance be colorable and designed to protect it from the husband's cred- itors, they cannot attack it as fraud- ulent. Evans v. Welborn, 74 Tex. 530, 12 S. W. 230. A voluntary conveyance by the husband to his wife of land, the community property of the parties, conveys the land to her in her sepa- rate right, and his subsequent cred- itor who acquired his claim with knowledge or notice of the volun- tary conveyance cannot attack it as fraudulent, but if such conveyance be shown to have been made for the purpose of defrauding future cred- 210 itors, it may be avoided by them upon showing such intent. Lewis V. Salmon, 72 Tex. 470, 10 S. W. 554; see Lehmberg v. Bibberstein, 51 Tex. 457; DeGarca v. Galvan, 55 Tex. 53; Van Bibber v. Mathis, 52 Tex. 406. Where the husband purchased a piano, with the intent to make a gift of the same to his daughter, the piano became the property of him- self and wife so soon as purchased, and although actually given to the donee, the gift was void against ex- isting creditors of the husband, he being at the time insolvent Connor V. Hawkins, 66 Tex. 639, 2 S. W. 520. To constitute the wnfe, claiming through the conveyance from her husband, a bona fide purchaser as against a claimant under an older unrecorded deed, she must have paid out of her separate means for the land; for if the money which was the consideration of the deed to her was community property, the deed from her husband would be a gift, and no valuable consideration in that event having moved from her, she could not in contemplation of law be an innocent purchaser with- out notice. Pierce v. Jackson, 61 Tex. 642. CHAP. VI.] PRESUMPTIONS AS TO ACQUISITIONS. § 159 CHAPTER VI. RULES OF EVIDENCE AND PRACTICE RELATIVE TO COMMUNITY PROPERTY. PART I. PRESUMPTIONS AND EVIDENCE. § 159. Presumptions as to Acquisitions. § 160. Presumption May Be Rebutted. ^161. Histor}' of Presumptions as to Acquisitions. ^ 162-163. Force, Effect and Application of Presumptions Regard- ing Community Property. ^ 164. How Such Presumptions May Be Overthrown — Burden ot Proof — Degree and Kind of Proof Necessary. Proof Necessary to Rebut Presumption. Rule in Louisiana and California. Nature of Proof Demanded. Preponderance of Evidence SuflScient. Parol Evidence Admissible. How Far Circumstances Will Control Presumptions. Proof Necessary to Establish in Wife Separate Estate by Donations from Husband. Presumption When Deed Taken in Wife's Name. Recitals in Deeds — Effect of. Rule in Texas. 1 165. § 166. I 167. I 168. ? 169. I 170. I 171. I 172. \ 173- I 174- PART II. PLEADINGS AND PRACTICE. \ 175. General Considerations. \ 176. Parties to Actions Involving Community Rights or Liabili- ties. 211 § 159 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. ^ 177, When Wife an Improper Party. § 178. What Property Subject to Joint Judgments. ^ 179. Joint Obligations of the Spouses. § 180. In Actions for Damages. § 181. In Actions for Personal Injuries, Etc. § 182. When Wife May Sue. § 183. When Wife May Maintain Suit Against Husband. I 184. Other Instances When Wife May Sue. § 185, Parties to Actions Relating to Community Property in Washington. I 186. In Other States. § 187-188. In Washington — Theory that Wife Is Neither a Neces- sary Nor Proper Party. § 189. Theory that Wife Is a Proper Party. § 190. Theory that Wife Is a Necessary Party. § 191-192-193. Rule of Merger. § 159. Presumptions as to Acquisitions. — There is, per- haps, no branch of our law in which presumptions play a stronger part, than in that of the property relations of hus- band and wife under the community system. The cardinal rule of evidence of the community relation is that all jjvoperty acquired by either husband or wife, or both, during the matrimony, by an onerous title, or by a joint lucrative title, is presumed to belong to the community, until the contrary is established that the acquisition ivas made in one of the statutory ways for acquiring separate property. This presumption is a legal one; it derives its existence from the statute itself, although not in terms expressed. It is the legal and neces- sary inference made b}' the statute, for the codes say, in sub- stance, that all property owned by either spouse anterior to marriage, and that subsequently acquired by gift, bequest, or devise, shall be the separate property of the spouse by whom acquired; but that all other property, acquired dur- ing coverture, shall be community property. The statute, as will be observed, is silent as to purchases made by the spouses with separate funds during coverture, the very aim and purpose of which is to give room and standing for the 212 CHAP. VI.] PRESUMPTION MAY BE REBUTTED. § 160 presumption under consideration. The mere fact that an acquisition is by vvay of a purchase excludes the sup- position of an acquisition by gift, bequest, devise, or descent.^ § 160. Presumption May Be Rebutted. — The commu- nity generically embraces all property belonging to the spouses, except such as the statute specifically removes from its operation. Community property is ihe rule, separate property the exception thereto. Hence the presumption above stated follows as a legitimate corollary from the pro- visions of the statute itself, namely, that all acquisitions by either spouse, during the matrimony, by an apparent onerous title, that is by purchase, will be considered by the law as having been acquired with the funds of the community, rather than with the separate funds of either member thereof. But, while this presumtion is a legal one, it is a mere provisional or conditional presumption; in other words, it is disputable or rebuttable, to the extent above stated. It will fall before sufficient proof to the contrary. " Stabit prsesumptio donee probetur in contrarium." ^ This pre- sumption is of course arbitrary, and does not derive its force from logic, but from the statute merely, yet its reason for existence may be found back of the statute in the solicitude of the State for the protection of tlie family and the marital establishment. Being a presumption of law it relieves pro- visionally the party invoking it Irom producing any evi- dence until the presumption is annulled or overthrown. The conditions upon which it is founded are fixed and uniform, and the presumption will inevitably arise the instant these conditions make tlieir appearance, and it will stand as a bulwark to defend the presumed rights of the community so long as they have any foundation in fact. The rights of the community are strongly favored in this behalf, b}^ virtue of this general presumption, and they 1 McDonald v. Badger, 23 Cal, 399, ■ Keller v. Over, 20 Atl. Rep. 25; 83 Am. Dec. 123. Grier v. Pa. Coal. Co. 18 Atl. Rep. 483. 213 § 162 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. should have their clue force wliere tlie law is not too clear to exclude their operation/ § 161. History of Presumptions as to Acquisitions. — The presumption regarding acquisitions during coverture was a part of the ganancial system of Spain — for the Spanish jurists steadily asserted the rule to be, that all property is prima facie presumed to be ganancial which is not proved to be proprium or jmtrimonium.^ In fact this presumption is as old as the system of which it proves so potent a factor. Under the coutunie of Normandy, a contrary presumj)tion was adopted, namely, that all property was considered propre which was not proved to be acquet, but the maxim under the other coutumes of France was that all property was presumed to be acquet, unless it was proved to be propre. Tlie code civil has adopted the latter presumption. "Every immovable is considered an acquest of the community, if it is not proved that one of the spouses had the ownership or legal posses- sion thereof before marriage, or that it fell to him since by title of succession or donation."^ § 162. Force, Effect and Application of Presumptions Regarding Community Property. — No doctrine is tirmer settled by the courts of the various community States, than that all property purchased during coverture, whether the conveyance be taken in the name of the husband, or that of the wife, or in their joint names, is to be deemed prima /aae to belong to the community.* And this is true whether the 1 Yates V. Houston, 3 Tex. 433. Dec. no; Veramendi v. Hutchins, 2 L. 4, tit. 4, lib. 10, Nov. Rec; 48 Tex. 531; Love v. Robertson, 7 Gomez, in i Taur. 50, n. 70; Febr. Tex. 6, 56 Am. Dec. 41; Mclntrye v. Nov. c. 8, n. 2; Gars, de Conj. Acq. Chappell, 4 Tex. 187; Parker v. n. 158; see Bruneau v. Bruneau, 7 Chance, 11 Tex. 517; Wells v. Cock- Mart. 217; Scott V. Maynard, Dal- rum, 13 Tex. 127; Chapman v. lam, 548. Allen, 15 Tex. 284; Claiborne v. 3 Code Napoleon, Art. 1402; see I Tanner, 18 Tex. 72; Higgins v. Burge Com. 348. Johnson, 20 Tex. 394, 70 Am. Dec. ■•Mitchell v. Marr, 26 Tex. 329; 394; Zorn v. Tarver, 45 Tex. 521; Huston V. Curl, 8 Tex. 239, 58 Am. Johnson v. Burford, 39 Tex. 24; Gil- 214 CHAP. VI.] APPLICATION OP PRESUMPTIONS. § 162 consideration was services rendered, proj)erty given or ex- liard v. Chesney, 13 Tex. 337; Yates Forbes v. Forbes, 11 An. 326; Bertie V. Huston, 3 Tex. 452; Cooke v. v. Walker, i Rob. 431; Young v. Bremond, 27 Tex. 460, 86 Am. Dec. Young, 5 An. 611; Hanna v. Pritch- 626; Stanley v. Epperson, 45 Tex. ard, 6 An. 730; Block v. Melville, 645; Wheat V. Owens, 15 Tex. 243; 10 An. 784; Repellier v. Gow, i La. Story V. Marshall, 24 Tex. 307; 478; Bryan v. Moore, 11 Mart. 26; Smith V. Boquet, 27 Tex 323; Routli Bachino v. Coste, 35 An. 570; Moore V. Routh, 57 Tex. 589; Edrington v. v. Stancel, 36 An. 819; Hart v. Gott- Mayfield, 5 Tex. 363; Allen v. wald, 15 An. 13; Stauffer v. Morgan, Harper, 19 Tex. 502; Bowder v. 39 An. 632, 2 So. Rep. 98; Durrutty Clements, 61 Tex. 587; Cox v. Miller, v. Musacchia, 42 An. 357, 7 So. Rep. 54 Tex. 16; LeGierce v. Moore, 59 555; Gogreve v. DeHon, 41 An. 244, Tex. 470; Wallace v. Campbell, 54 6 So. Rep. 31; Cosgrove v. His Tex. 87; Osborn v. Osborn, 62 Tex. Creditors, 41 An. 274, 6 So. Rep. 495; Epperson V. Jones, 65 Tex. 427; 585; Wellington v. LeGros, 18 An. Brackett v. Devdne, 25 Tex. Sup. 126; Dunham v. Williams, 32 An. 194; Schmeltz V. Garey, 49 Tex. 61; 162; Burns v. Thompson, 39 An. Smith V. Bailey, 66 Tex. 553, i S. 377, i So. Rep. 913; Block v. Mel- W. 627; Kempner v. Comer, 73 Tex. ville, 32 An. 22; Chauviere v. Fliege, 196, II S. W. 194; Finn v. William- 6 An. 56; Sue. of Rhodes, 39 An. son, 75 Tex. 337, 12 S. W. 852; Dun- 473; Heirs of Murphy v. Jury, 39 can V. Bickford, 83 Tex. 322, 18 S. An. 785, 2 So. Rep. 575; Sentment W. 598; King V. Gilliland, 60 Tex. v. Soule, 33 An. 612; Meyer v. Kin- 271; Lott V. Keach, 5 Tex. 394; zer, 12 Cal. 247, 73 Am. Dec. 538; Edwards v. Brown, 68 Tex. 330, 4 Smith v. Smith, 12 Cal. 216, 73 Am. S. W. 380, 5 S. W. 87; Parker V. Dec. 533; Pixley v. Higgins, 15 Cal. Coop, 60 Tex. 112; Sinsheimer v. 127; Moore v. Jones, 63 Cal. 14; Kahn, 24 S. W. 533; DeBlaine v. Ram.sdell v. Fuller, 28 Cal. 43, 87 Lynch, 23 Tex. 27; Pearce v. Jack- Am. Dec, 103; Landers v. Bolton, son, 61 Tex. 642; Smalley v. Law- 26 Cal. 420; Tustin v. Faught, 23 rence, 9 Rob. 210; Gonor v. Gonor, Cal. 241; Biirton v. Lies, 21 Cal. 87; II Rob. 526; Broussardv. Broussard, Mott v. Smith, 16 Cal. 533; Kohner II Rob. 445; Pearson v. Ricker, 15 v. Ashenauer, 17 Cal. 581; Adams An. 119; Ford v. Ford, i La. 201; v. Knowlton, 22 Cal. 283; McDon- Suc. of Planchet, 29 An. 520; Trox- aid v. Badger, 23 Cal. 393, 83 Am. ler V. CoUey, 23 An. 425; Tannery. Dec. 123; Johnson v. Johnson, 11 Robert, 5 Mart. N. S. 257; Bostwick Cal. 205, 70 Am. Dec. 774; Peck v. V. Gasquet, 11 La. 535; Davidson v. Vandenberg, 30 Cal. 11; .Schuler v. Stuart, 10 La. 146; Dominguez v. Broughton, 70 Cal. 282, 11 Pac. 719; Lee, 17 La. 295; Comeau v. Fonte- Riley v. Pehl, 23 Cal. 70; Peck v. not, 19 La. 406; Fisher v. Gordy, 2 Brummagim, 31 Cal. 440, 89 Am, An. 762; Provost v. Delahoussage, Dec. 195; Vassault v. Austin, 36 5 An. 610; Prendergast v. Cassidy, Cal. 691; Wedel v. Herman, 59 Cal, 8 An. 96; Webb v. Peet, 7 An. 92; 507; Althof v. Conheim, 38 Cal. 230, Andrew v. Bradley, 10 An. 606; 99 Am. Dec. 363; Martin v. Martin, 215 §162 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. changed, or money paid by either party.* Under certain circumstances this presumption is held to liave different degrees of strength or potency, as for example, it is said that, ordinarily, the presumption, that property is community, is of greater strength where the title runs to the husband rather than to the wife. The reason being that the husband having the active dominion over the community prop- erty, a purchase in his name would be in the usual course of business, while a purchase in the name of the wife would be out of the ordinary course of dealing, to such an extent as to put third parties upon inquiry as to the truth of the presumptive title.^ It is held in Texas that property bought soon after marriage, raises the presumption that the pur- chase money used belonged to the spouse making the pur- chase, on the theorv that it must have come, not from the acquisitions of the marital partners, but from funds possessed by one or the other of the spouses before marriage.^ In the case of Kimberlin v. Westerman,^ where a deed was executed more than four years after the marriage of a grantee to a third wife, it was held, that the presumption is that it is the community property of that marital union, and, to establish a trust in the land in favor of the heirs of the second wife, it must appear that the land was paid for with the funds belonging in common to the husband and the heirs of the second wife. 52 Cal. 235; Hussey v. Castle, 41 Nev. 320, 4 Pac. 711; Lenimon v. Cal. 239; Ewald v. Corbett, 32 Cal. Waterman, 2 Wash. Ter. 485; Cas- 493; Buchanan's Estate, 8 Cal. 507; tor v. Peterson, 2 Wash. 207; Yesler Tompkins' Estate, 12 Cal. 114; In- v. Hochstettler, 4 Wash. 349; Free- gersoll V. Truebody, 40 Cal. 603; berger v. Caldwell, 5 Wash. 769. Tolman v. Smith, 85 Cal. 280, 24 ^ Chapman v. Allen, 15 Tex. 278; Pac. 742; Mortimer v. Harder, 93 Johnson v. Burford, 39 Tex. 242. Cal. 172, 28 Pac. 814; Dimmick V. = Metcalf v. Clark, 8 An. 286. Dimmick, 95 Cal. 323, 30 Pac. 547; ^ Madelenka v. Downing, 59 Tex. Schouler on Husband and Wife, 32; Watts & Miller, 76 Tex. ib. I 341; see Prof. Pomeroy's Article 4, * 75 Tex. 127, 12 S. W. 978. West Coast Rep. 35S; Jordan v. Fay, 33 Pac. (Cal.) 95; Lake v. Lake, 18 216 CHAP. VI.] APPLICATION OF PRESUMPTIONS. § 163 § 163. Force, Effect and Application of Presumptions Regarding Community Property. — Money and negotiable paper are treated in Wasliington as being presumed to be- long to the possessor, whether it be the husband or the wife, and thereby an exemption is created for this class of prop- erty from the rigid rules invoked regarding other classes of community property.^ While all ^^roperty belonging to hus- band and wife is presumed in law to be common property, and subject to the husband's debts, yet there is no presump- tion that property in jDossession of a conjugal partnership belongs to the husband rather than to the wife.^ But where the matrimonial union has continued for some time, the presumption is strong that the property belongs to the com- munity.'^ In the absence of proof to the contrary the law presumes a community.* And property in possession of and administered by the husband is presumed to belong to the community.^ Where the spouses remove from a com- mon law State into a State in wdiich the community laws prevail, the personal effects brought by the husband with him will be presumed to have belonged to him. It will be for the wife or third persons to destroy this presumption.® Notwithstanding it was stipulated in a nuptial contract made in a foreign State that there should not be a community in future acquisitions of the spouses, where realty was conveyed to the wife after their removal to Texas, it was held that the legal presumption applied witli full force, that it was com- munity property, and that it devolved on the wife to repel this presumption by clear means, if she claimed it as sepa- ^ See Castor v. Peterson, 2 Wash. 19 An. 249; Van Wickle v. Violet, 208, 26 Pac. 223; see an ^e chap. II, 30 An. 1106. § 6, p. 20. ^ Meyer v. Kinzer, 12 Cal. 252; " Edrington v. Mayfield, 5 Tex. Bostwick v. Gasquet, 1 1 La. 534. 363. Penny v. Weston, 4 Rob. 165; ' Edrington v. Mayfield, 5 Tex. Wolfe v. Gilmer, 7 An. 583; Percy 363. V. Percy, 9 An. 185; see chap. II, * Grayson v. Sanford, 12 An. 646; ^ 47. City Ins. Co. v. Str. lyizzie Simmons, 217 §164 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. rate property/ At the time of the dissohition of the mar- riage all the effects which both husband and wife recipro- cally possess, are presumed common effects or gains, unless they satisfactorily prove which of such effects they brought in marriage, or have been given them separately, or they have reciprocally inherited.*^ § 164. How Such Presumptions May Be Overthrov^n — Burden of Proof — Degree and Kind of Proof Kecessary. — The presumptions relating to community property, although legal, must fall before proof to the contrary. The pre- sumption is a mere rule of evidence, its effect being to relieve the community from the production of any proof to establish its claims to property considered b}' the law as a part of its assets until facts are established which destroy such claim. Says Sawyer, Justice, in Ramsdell v. Fuller,^ "This is only a presumption of law arising from the fact that a purchase has been made during coverture, and the real character of the transaction may be shown. It is much easier for the party purchasing land to show affirmatively that the funds used are separate property of the party pur- chasing than for others interested to show negatively that they were not. The evidence is peculiarly within the knowl- edge and control of such party. For these and other reasons, when the fact is required to be proved, the law throws the burden of identifying the funds as a part of the separate estate upon the party claiming the benefit of such estate." "Any other rule," says the same court in Meyer v. Kinzer,^ " would lead to confusion and fraud. In vain would creditors or purchasers attempt to show that the particular property 1 Castro V. lilies, 22 Tex. 479, 73 Sue. of Baiim, 11 Rob. 314. Such Am. Dec. 277. was also the rule of the Spanish law. - La. C. C. Art. 2374; Huntington Nores v. Caraby, 5 Rob. 292; Sayles' V. Legros, 18 An. 126; Nores v. Car- Tex. Stat. Art. 2853. raby, 5 Rob. 292; Denegre v. Dene- ^ 28 Cal. 43. gre, 30 An. 275; Babin v. Nolan, 6 ''12 Cal. 254. Rob. 508; Sue. of Pratt, 12 An. 457; 218 CHAP. YI.] RULE IN LOUISIANA AND CALIFORNIA. § 166 seized or bought was not owned by the claimant before mar- riage, and was not acquired by gift, bequest, devise or descent, or was not such property under a new form consequent upon the same exchange sale or investment. In vain would they essay to trace through its various changes the disposition of any separate estate of the wife, so as to exclude any blending of it with the particular property which might be the subject of consideration." § 165. Proof Necessary to Rebut Presumption. — This invariable presumption which attends the acquisition and possession of j)roperty by either spouse during the existence of the community can only be overcome by clear and satis- factor}^ proof that it was owned by the claimant before marriage, or acquired afterwards in one of the particular ways mentioned in the statute, or tjjat it is the property taken in exchange for, or in the investment, or as the price of the property so originally owned or acquired.^ "All property," says Hemphill, C. J., in Scott v. Maynard^ "acquired during marriage by purchase, whether the acquisi- tion be made in the joint names of the husband and wife or of either of them separately, must be considered as com- mon property, and if there be any exceptions to this general rule it must be established by certain and positive evidence, or otherwise the presumption that the property is common will remain in all its force unimpaired."" § 166. Rule in Louisiana and California. — In Louisiana it is held that when property is bought in the name of the ^ Meyer V. Kiiizer, 12 Cal, 254, 73 11 Tex. 326; McDonald v. Badger, Am. Dec. 538; see Higgins v. John- 23 CaL 399; Mitchell v. Marr, 26 son, 20 Tex. 394, 70 Am. Dec. 394; Tex. 321; see Schmeltz v. Garey, 49 Love V. Robertson, 7 Tex. 11; Chap- Tex. 61; Mitchell v. Mitchell, 80 man v. Allen, 15 Tex. 278; Wright v. Tex. loi, 15 S. W. 705; see authori- Hays, 10 Tex. 130; 7 Mart. 362; i ties cited ante ^ 162; Dimmick v. La. 206; Lott V. Keach, 5 Tex. 396; Dimmick, 95 Cal. 327, 30 Pac. 547. Smith V. vSmith, 12 Cal. 224; Clai- ^ ^al. (Tex.) 551. borne V. Tanner, 18 Tex. 72; Cox v. ^ Mclntyre v. Chappell, 4 Tex. Miller, 54 Tex. 25; Rose v. Houston, 187; Parker v. Chance, 11 Tex, 517. 219 § IQQ BALLINGER OX COMMUNITY PROPERTY. [CHAP. VI. wife she may rebut the presumption that it is community property by showing a purchase with her paraphernal funds, administered by her separately and apart from her husband. She carries the burden of three crucial facts: First. Para- phernality of the funds. Second. Administration thereof separately and apart from her husband. Third. Invest- ment by her.^ Where the wife claims property acquired after marriage as her separate property and does not show her right to acquire separate property, it will be presumed that the property belongs to the community.^ The rigor of the law, which declares that property acquired during marriage shall be considered as common to both husband and wife altliough purchased with the separate funds of one of them, is applicable only to acquisitions made by purchase and does not necessaril}^ include things which may be received by either of them in payment for money due to them in their separate and individual rights.'^ In California it is held that the legal presumption that arises from the face of the deed may be overcome by extrinsic proof that the consideration paid was the separate funds of the wife.* A purchaser in California, from the husband, of land deeded to the wife for a valuable consideration does so at his peril, and it may be shown that the property was the separate property of the wife.'' 1 StaufFer v. Morgan, 39 An. 632, - Provost v. Delahoussaye, 5 An. 2 So. Rep. 98; see also Terrell v. 610 Cuttrer, i Rob. 367; Dominguez v. ^ gaygj^ant v IveBreton, i La. 520. Lee, 17 La. 300; Smalley v. Law- * McDonald v. Badger, 23 Cal. rence, 9 Rob. 214; Tannery. Robert, 393, 83 Am. Dec. 123; Tustin v. 5 Mart. N. S. 257; Young v. Young, Faught, 23 Cal. 241; Landers v. 5 An. 611; Nores v. Carraby, 5 Rob. Bolton, 26 Cal. 393; Peck v. Brum- 292; Metcalf V. Clark, 8 An. 286; magim, 31 Cal. 440, 89 Am. Dec. 195; Bacliino V. Coste, 35 An. 570; Moore Peck v. Vandenberg, 30 Cal. 11; V. Jones, 63 Cal. 15; Drais v. Hogan, Higgins v. Higgins, 46 Cal. 259. 50 Cal. 121; Ramsdell v. Fuller, 28 '^ Moore v. Jones, 63 Cal. 12; see Cal. 43, 87 Am. Dec. 103; Kempner Ramsdell v. Fuller, 28 Cal. 37, 87 V. Comer, 73 Tex. 199; Gratton v. Am. Dec. 103; Alverson v. Jones, 10 Weber, 47 Fed. Rep. 852. Cal. 12, 70 Am. Dec. 689. 220 CHAP. YI.] NATURE OF PROOF DEMANDED. § 167 § 167. Nature of Proof Demanded. — The cases uniforinl}^ hold that where it is sought to estabHsh a separate right in property, where the apparent title is in the community, that the burden of proof to establish the separate character of such property rests upon the party asserting it. In other words, the presumption will stand unless rebutted.^ Various terms are used, throughout the multitude of cases touching this question, as to the quantuiri of proof required to rebut and overthrow ihe prima facie presumption relating to community property. Such expressions as the following are found in the language of the courts: That this presumption " is very cogent and must be repelled by clear and conclusive proof,"" or by "clear and certain proof," ^ or by "positive evi- dence," or by "conclusive proof,"* or by "legal proof," ^ or by "certain and positive evidence," or "strict proof,"® or by "clear and convincing proof,"^ or "the property must be clearly and indisputably traced and identified as separate property,"* and many other cognate expressions. It is not believed, however, that these terms should be considered as going to the length that their general meaning might import. Certainly it is not required that the proof to destroy this presumption ' The onus of proving that the tain its separate character, that it be property is separate is on the party clearly and indisputably traced and asserting it. Morris v. Hastings, 70 identified. Love v. Robertson, 7 Tex. 30, 7 S. W. 650-I; Meyer v. Tex. 6; Rose v. Houston, 11 Tex. Kinzer, 12 Cal. 254; Lake v. Lake, 320; Chapman v. Allen, 15 Tex. 278; 18 Nev. 320, 4 Pac. 711. Philipowski v. Spencer, 63 Tex. 604; Where property in the possession Epperson v. Jones, 65 Tex. 427; of husband and wife is levied upon Smith v. Bailey, 66 Tex. 553, i S. by virtue of an execution against W. 627. the husband, and the wife interposes "- Love v. Robertson, 7 Tex. 6. a claim to try the right to the prop- ^ Meyer v. Kinzer, 12 Cal 254. erty, the burden of the proof is upon * Bachino v Coste, 35 An. 570; her. McDufifie V Greenway, 24 Tex. Cosgrove v His Creditors, 41 An. 625; see also Coats v. Elliott, 23 274, 6 vSo Rep 585. Tex. 606. ^ Smalley v. Lawrence, 9 Rob. 210. Where the property has not been ^ Ford v Ford, i La. 201. preserved i?i specie or in kind, but ' Yesler v. Hochstettler, 4 Wash, has undergone mutations and 349. changes, it is indispensable to main- ^ Rose v. Houston, 11 Tex. 326. 221 §168 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. should be any more than sufficient to satisfy the mind of court or jury that its weight is enough to cause a reasonable person, under all the circumstances, to believe in its suffi- ciency in order to counterbalance the naked presumption that the propert}'' was acquired with the funds of the com- munit3^ The property is merely considered as the property of the community until the contrary is sliown by legal proof, and legal proof would seem to be a preponderance of the testimony under all the facts and circumstances of the par- ticular case. § 168. Preponderance of Evidence Sufficient. — The Su- preme Court of Texas in a recent case* has said upon this proposition: "We can see no reason wh}^ an issue between the wife and the heirs or devisees of the husband, as to whether the property in controversy belongs to her separate or to the community estate of herself and husband, should not be determined as other issues, by a preponderance of evidence [citing cases]. The charge rec^uested, that 'clear and satisfactory proof was required to rebut the presump- tion in favor of the community estate, was properly refused. A better statement to the jury of the rule is the one included in the charge given by the court, that " where deeds to prop- erty are made either to husband or wife during marriage, such property is presumed by law to be community property, which presumption has to be overcome by evidence reason- ably satisfactory to the jury. n 2 1 Mitchell V. Mitchell, So Tex. loi, be destroyed by positive proof that 15 S. W. 708. the consideration of the contract - See Mortimer v. Marder, 93 Cal. enured to the separate advantage of 177. the wife. The wife's acknowledg- All contracts entered into by the nient of that fact in the instrument husband during the marriage, must itself is of no avail to the creditor, be presumed as made by him, and Prudhomme v. Edens, 6 Rob. 64. for his advantage, whether made in Proof that a husband received a his own name, or of both husband certain sum during the existence of and wife. La. C. C. 2371, 2372, the community in payment of a 2373, and this presumption can only debt due to him individually, is not 222 CHAP. VI.] PAROL EVIDENCE ADMISSIBLE. § 169 § 169. Parol Evidence Admissible. — Parol evidence has been generally held admissible to show that a conveyance of land to either member of the community, although expressing on its face onerous conditions, was given without considera- tion, as for instance a deed of gift, and hence became the separate property of the grantee. The rule is changed where the deed expresses on its face a consideration of "love and affection" as well as a valuable consideration in money .^ This rule is applicable only as between the parties to such deeds, their privies in blood and purchasers without value or with notice.* "But," says Moore, Justice, "we know of no principle upon which such evidence can be received for the purpose of explaining or modiiying such deeds after the property has passed into the hands of innocent purchasers, and thereby engrafting upon it a trust to their detriment. Such a doctrine would go far to destroy the utility of written evidences of title to land and the registration of conveyances for the purpose of notice."^ Parol evidence is admissible to prove that a purchase by a married woman, of chattels, was sufficient to charge the community v. Wilson, 41 Cal. 604; Parker v, with the amount, when there is no Chance, 11 Tex. 513; Zorn v. Tar- evidence that the community was ver, 45 Tex. 519; compare Cooke v. benefited by it, or that it was used Bremond, 27 Tex. 460, 86 Am. Dec. in the purchase of community prop- 626; Smith v. Strahan, 16 Tex. 314; erty. Babin v. Nolan, 6 Rob. 508. Higgins v. Johnson, 20 Tex. 389; The presumption is that goods Dunham v. Chatham, 21 Tex. 231; purchased by husband and wife, Duke v. Reed, 64 Tex. 705. acting as commercial partners, be- ^ Cooke v. Bremond, 27 Tex. 460, long to the community estate, which and authorities cited. can only be overcome by proof trac- ^ Cooke v. Bremond, 27 Tex. 460; ing the separate ownership in the Wallace v. Campbell, 54 Tex. 89; wife. The property so situated is see Smith v. Boquet, 27 Tex. 507; impressed with the commimity title Rogan v. Williams, 63 Tex. 123; of husband and wife. Purdom v. Edwards v. Brown, 68 Tex. 329; Boyd, 82 Tex. 130, 17 S. W. 606; French v. Strumberg, 52 Tex. 109; Middlebrook v. Zapp, 73 Tex. 31, 10 Parker v. Coop, 60 Tex. iii; S. W. 732; see Epperson v. Jones, McDaniel v. Weiss, 53 Tex. 263; 65 Tex. 425. Zorn v. Tarver, 45 Tex. 519; John ^ Peck V. Vandenberg, 30 Cal. 12; v. Battle, 58 Tex. 591. Parol evi- Rhine v. Ellen, 36 Cal. 369; Salmon dence to show undestanding be- 223 § 171 BALLINGER OX COMMUNITY PROPERTY. [CHAP. VI. paid for out of her paraphernal funds, though not so stated in the act of sale. Such evidence is not repugnant to the deed.^ § 170. How Far Circumstances Will Control Presump- tion. — If the deed be taken in the name of the wife tlie presumption may be rebutted by declaration of the husband that he intended the land for his wife's separate property.^ But the fact that the deed is taken in her name is not even prima facie evidence of her separate interest in the property.^ The fact that the title is taken in the wife's name does not raise even a presumption in her favor.* As between husband and wife, and those claiming under them affected with notice, the presumption may be rebutted.^ It is not rebutted, how- ever, by the fact merel;y that the husband directed the deed to be made out to the wife.® Nor will parol evidence be received to explain a deed so as to raise a trust to the detri- ment of innocent purchasers.^ Where the wife averred that she sued for her separate property and the only evidence produced was a deed of bargain and sale to the wife during coverture, sucli a deed raises a presumption that the land belongs to the community and it does not support the aver- ment of separate property.* § 171. Proof Necessary to Establish in Wife Separate Estate by Donations From Husband. — Donations from tween spouses. T. & P. Ry. Co v. "Parker v. Chance, ii Tex. 513; Durrett, 57 Tex. 48. Johnson v. Burford, 39 Tex. 242. 1 Terrell v. Cuttrer. i Rob. 367; " Brackett v. Devine, 25 Tex. Sup. see Forbes v. Forbes, 11 An. 326. 194; compare Cooke v. Bremond, 27 -Johnson v Burford, 39 Tex. 242. Tex. 460; Stanley v. Epperson, 45 3 Tucker v. Carr, 39 Tex. 98. Tex. 645; Kirk v. Nav. Co. 49 Tex. * Davidson V. Stuart, 10 La. 148; 213. Smalley v. Lawrence, 9 Rob. 211; ^ Holloway v. Holloway, 30 Tex. Terrell v. Cuttrer, i Rob. 367, 17 164. See also as to what proof is La. 30. (Dominguez v. Lee. ) sufficient. Peet v. C. & E. S. Rj'. 5 Smith V. Boquet, 27 Tex. 507; Co. 70 Tex. 529, 8 8. W. 203. compare Smith v. Strahan, 16 Tex. Where separate property is inter- 314; Dunham v. Chatham, 21 Tex. mingled with community property, 231. see Ch. IL § 44- 224 CHAP. VI.] PROOF TO ESTABLISH SEPARATE ESTATE. § 171 the husband to the wife being sanctioned and even encouraged by the statutes in most of the States, he may convey his separate or community property to lier without the inter- vention of a trustee/ and may direct, for that purpose, a conveyance from a third person to the wife and, as between them, the property is reHeved of the legal presumption attending acquisitions by the members of the community and invests her with a separate estate in the property so donated. This presumption, however, remains in full vigor as to creditors and subsequent bona fide purchasers without notice.^ Conveyances are rarely taken b}^ the husband in the joint name of himself and wife, or in her name alone; and, therefore, when made in the name of the wife, by direction of the husband, the presumption that the pi'operty belongs to the common gains has not the force attached to it as when arising upon a deed to the husband in his own name. A deed to the wife is ordinarily but a deed to the community, yet she may possess separate property. A con- veyance of such property must be to her and in her name.^ Under the Louisiana code a donation by the husband to the wife may be revoked during the lifetime of the donor, but if not so revoked the same shall become absolute.* A transfer by the husband to the wife of his right to com- munity property can only be done by acts so explicit as to leave no doubt of his intention. A transfer to a stranger with directions to reconvey to the wife does not evidence such intention, especially where the stranger is bound under a penalty to make the title." ' Story V. Marshall, 24 Tex. 301; Kohner v. Ashenauer, 17 Cal. 581; Reynolds v. Lansford, 16 Tex. 286; Barker v. Konenian, 13 Cal. 10; Smith V. Boquet, 27 Tex 507. Peck v. Brummagim, 31 Cal. 440; - DeGarca v. Galvan, 55 Tex. 53; P\iller v. Ferguson, 26 Cal. 547; Smith V. Strahan, 16 Tex. 324; see Hussey v. Castle, 41 Cal. 239. Fitts V. Fitts, 14 Tex. 444; Hall v. ^ Higgins v. Johnson, 20 Tex. 395, Hall, 52 Tex. 299; Story v. Marshall, 70 Am. Dec. 394. 24 Tex. 307; Pearce v. Jackson, 61 ■• Labbes' Heirs v. Abat, 2 La. 553. Tex. 642; prior unsecured deed, '^ Parker v. Chance, 11 Tex. 513. Klumpke v. Baker, 68 Cal. 559; 15 ZJ.0 § 172 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. § 172. Presumption When Deed Taken in Wife's Name. — The presumption in favor of the community resulting from a deed made from a husband to a wife may be rebutted by proof that the purchase, was with the separate funds of either partner; and when made to the wife it may be shown to be for her benefit, not only for the advance by her of the purchase money, but if the funds be advanced from the separate means of the husband, the presumption of gift arises; and if from the community funds, it may be proven that the husband intended a gift and ordered the deed in her name.^ A deed to the wife for property pui'chased by the husband with community funds, imports, in the absence of evidence of a different purpose, that it was the intention that the property should become the separate estate of the wife.^ A deed from the husband to wife purporting to be for a valu- able consideration, if without consideration, will be upheld as a donation or gift.^ The privia facie presumption arising from a deed of the husband to his wife for community prop- erty, is that it was intended to change its character from community to separate property of the wife. And a subse- quent sale of the property by the husband does not rebut this presumption; and the deed is effectual against such subsecjuent purchaser.* If the husband purchase with his separate funds, or with those of the community, and take the title in the name of the wife, the presumption, as be- tween themselves and all others not claiming as innocent purchasers, will be that the property so purchased was intended for the wife, and not for the husband nor the com- munity.' In a suit against the husband and wife on the ^ Dunham v. Chatham, 21 Tex. "' vStory v. Marshall, supra; see 232; Higgins V. Johnson, 20 Tex. Hartwell v. Jackson, 7 Tex. 576; 389; Cooke V. Bremond, 27 Tex. Fitts v. Fitts, 14 Tex. 443. 459, 86 Am. Dec 626. ^ Story v. Marshall, supra; see -Story V. Marshall, 24 Tex 305; Smith v. vStrahan, 16 Tex. 314, 67 Reynolds v. Lansford, 16 Tex, 286; Am. Dec. 622. Smith V. Boquet, 27 Tex. 507; see * Story v. Marshall, 5///';-«; Smith Higgins V. Johnson, 20 Tex 3S9; v. Boquet, 27 Tex. 507. Hatchet v. Comer, 30 Tex. 104. 22G OHA]'. VI.] RECITALS IN DEEDS. § 173 individual note of husband executed for land deeded to the wife, it is error to render judgment against the wife for the amount of the note/ The wife holds the land subject to the vendor's lien, but is in no way responsible.^ Parol evi- dence is not admissible to show that a deed, which on its face is a deed of gift to husband and wife, was really for the consideration of natural love and affection to the wife. Under such a deed it is held that the husband and wife be- come tenants in common of the land conveyed, and each owns an undivided half interest as separate property.' Where property is conveyed to the wife and it is shown to have been purchased with the separate means of tiie hus- band, the presumption is that tlie husband, in so having, the deed ma U. S. 560, 8 Sup. Ct. 216, the court makes a practical application of the rule."^ Should the principle here stated become the settled law of Wash- ington, manifestly the many perplexities and inconveniences in practice under this feature of the statute would be sub- stantially removed. It may, however, be urged that such a construction of it is tantamount to saying that although the wife is vested with specific rights and interests in property, the exercise of such rights must be considered as resigned to another, and which would permit ihem to be divested without due process of law. Undoubtedly in all this class of cases for the judgment to have the effect to conclude the wife as to her community interest, the direct issue involving ' I Herm. Estop. 204. son v. Richmond Beach Imp. Co. 63 - See also to the same effect, John- Fed. Rep. 493. 245 § 189 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. the rights or Habilities of the community should be tendered and determined. §189. Theory that Wife Is a Proper Party.— Tlie decisions of the Supreme Court of Washington have not been uniform upon the question of the spouses as parties to actions involving community rights and liabilities. The first position taken by the court was to the effect that the wife was neither a necessary nor a proper party to a suit regarding the liability of the community.^ The Territorial Court did not go to this extent."^ In a recent case^ not yet reported, follow- ing the doctrine announced in 0. 1. Co. v. Sagmeister* the court held "that any liability incurred by the husband in the prosecution of any business is prima fade a charge against the community, and that the presumption to that effect will continue in force until it is overthrown by proof that such liability was not incurred in any business of which the community would have had the benefit if profit had been realized therefrom." And where a party seeks to recover on a promissory note executed by the husband alone, in order to obtain an adjudication that the debt was that of the com- munity and resolve the presumption into a conclusive and binding judgment against both husband and w^ife as to their community property, it was further lield that the wife was a proper party defendant, and that a reasonable time to render this prima Jade presumption conclusive is in an action brought for that purpose and to which she is made a co- defendant. The court reasons that the plaintiff is entitled to have the judgment show upon its face the fact that it is for a community debt, otherwise it would not appear there- from that it was a lien upon the community lands. The court concludes by saying " that the wife is at least a proper party to any action in which the judgment is, by the statute, - Commercial Bank v. Scott, 6 =* McDonough v. Craig, decided Wash. 499. Dec. 3, 1894. 2 Andrews v. Andrews, 3 Wash. * 4 Wash. 710. Ty. 290. 246 CHAr. VI.] RULE OF MERGER. § 191 made a lien on the community property." This ruling qualifies the case of Cominiercial Bank v. Scott,^ which, as before stated, advanced the view that the wife was neither a necessary nor a proper party to such actions. § 190. Theory that Wife Is a Necessary Party. — There is another view of this question which, if tenable, would require the wife to be made a party in all actions regarding community rights and liabilities where commu- nity lands are sought to be affected thereby. If the wife, under the statute, has a vested and absolute interest with the husband in all community lands, any obligation which such property must be subject to is, in legal effect, the joint obli- gation of husband and wife, whether she may have joined in its creation or not; and, furthermore, every debt created by the husband during coverture is prima facie a commu- nit}^ debt. But, can the question of whether or not the debt is actually a community debt be litigated, so as to authorize the judgment to be executed out of the commu- nity lands when, the wife is not joined as a party defendant? § 191. Rule of Merger. — If we grant that the common law rule of merger operates in this State, as to judgments obtained against one joint debtor, and that the wife possesses a vested interest in community lands, it would seem difficult to conclude that a judgment recovered against the husband alone can affect community property.^ It is, however, held in Calhoun v. Leary^ that a judgment recovered against the husband is prima facie for a community debt, which principle has been affirmed by the court in Curry v. Catlin^ and in Thygesen v. NeufelderJ^ In the case last cited the court, by way of dictum, said: "Each of the several cred- itors could have prosecuted his claim to judgment against the husband alone and had satisfaction thereof by levy and sale of community property. Not only would creditors have 1 6 Wash. 499. * 9 Wash. 495, 37 Pac. 678. - Tay V. Hawley, 39 Cal. 96-S. ^ 9 Wash. 455, 37 Pac. 672. ^ 6 Wash. 17, 32 Pac. 1070. 247 § 192 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. had this right, but the Imsband, for the purpose of saving expense, could have gone into court and confessed judgment upon each of the claims, with the same effect," and the court conchides, from the general power of the husband in creating liabilities against the community, that he also could make a valid voluntary assignment for the benefit of creditors, although community real property be included in the deed of assignment. This decision has gone to the utmost pos- sible limit, if not beyond a rational construction of the statute. In the case of the Commercial Bank v. Scott^ the wife was said to be an improper party defendant to a suit involving the question whether the note of the husband was a debt of the community or his separate debt. The dissent- ing opinion by Scott, Justice, strongly presents the contrary view upon this question, and which the court has substan- tially adopted in the case of McDonough v. Craig, supra.^ § 192. Rule of Merger — Continued. — As before stated, the wife's interest in community realty being subject to every judgment regularly obtained for a community debt, it must of necessity be true that no judgment can bind or conclude her interests therein, to which she has never been a party and of the existence of which she may be in total ignorance. I can see no distinction between the status of the wife as related to such actions and that of any other joint debtor, unless her rights may be said to be exercised by and through her husband. Upon this proposition, as respects a partner- ship liability, it was said by the California court, under a joint debtor act similar to that existing in Washington, where the joint property was sought to be held on a judg- ment against one of the joint debtors, that "It is a cardinal principle of jurisprudence that a judgment shall not bind or conclude a man, either in respect to his person or property, unless he has had his day in court. No person shall be de- 1 6 Wash. 499. conforming to the general view of ^ See Curry v. Catlin, 37 Pac. 678; the court. Bierer v. Blurock, 36 Pac. 975, as 248 CHAP. VI.] RULE OF MERGER. § 193 prived of life, liberty or property without due process of law, says the constitutional declaration ; every person may, as a matter of common right, insist that he be heard in his own defense before judgment pass which binds, charges or injur- iously affects his person or his estate. It is no answer to say that the judgment affects only the joint property of the de- fendants, property that either of the debtors might apply to the satisfaction of the common debt, for that assumes that the defendants are joint debtors, and that may be to the defendant not served the vital point of the controversy. There is nothing in the law regulating the acquisitions or disposition of joint property which confers upon one joint owner the right to defend actions for his fellows. A judg- ment which subjects to execution tlie interest of a person who had no opportunity to be heard in the action, cannot be applied without violating principles which lie at the base of all judicial proceedings."^ Nothing can be found in our law which confers on the husband the right to singly contest such an issue, unless by implication. The contrary may be said to appear, when the statute attempts to elevate the wife's dominion over the alienation or encumbrance of their joint realty to an equality with that granted tlie husband. In mechanics lien proceedings she is held to be a necessary party, and even so as to the notice of the lien.^ § 193. Rule of Merger — Continued. — In Andreivs v. Andrews,^ it was said, " we see no way for a creditor to get a judgment lien conclusively operative upon such real estate (community) except as the result of an action or proceed- ing to which both husband and wife were parties, and in which the community character of the debt is ad- mitted or in issue. It may be that he could come into ' Tay V. Hawley, 39 Cal. 96-7. rington v. Johnson, Wash., decided ^ Ivittell V. Miller, 3 Wash. 4S0; January S, 1895, not reported; L,it- Turner v. Mfg. Co. 37 Pac. 674; tell v. Miller, supra, distinguished. Sagmeister v. Foss, 4 Wash. 320; ^ 3 Wash. Ter. 290. Collins V. Snoke, 9 Wash 571; Har- 249 § 193 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VI. couri in the first instance, alleging the community char- acter of the debt, and obtain a judgment as for the com- munit3\" This was said in a case where the wife had sued to vacate a judgment confessed b}^ lier Imsband, and to set aside tlie execution sale of community really there- under. The court further held that the wife was entitled in such case to her day in court to resist and vacate the sale of the community realty, but not to attack the judgment con- fessed by her husband, and that the burden was upon her to show that the character of the judgment debt was such as would not warrant the sale. To my mind the only way the community really can be made subject to a creditor's action is by a suit involving the direct issue of the commu- nity character of the debt, in wliich action the wife must be made a party as in other cases under our joint debtors' act. Such proceedings furnish a conclusive mode by means of which the joint property can be made liable to seizure on execution. Mere presumption of the law can never ripen into activit}^ in a judgment unless the parties against whom it runs have had their day in court under the ordinary process of law — and, furthermore, if the wife is entitled to her day in court in such actions, she is entitled to it in a proper case at the hands of a jury as well as the husband — and remedial processes and equitable suits do not remove these objections.^ And it would seem, from the language of the court in the case of McDonongh v. Craig, supra, that it is recognized that the rights of the wife must be litigated at some stage of the proceedings, in order that the judgment obtained for a community debt may be operative upon her community interest. This being true, expediency and equity demand that her rights be litigated in the same action and at the same time as those of her husband. Where the husband has no authority from the wife to sell community lands, it has been held that a judgment on a husband's promise to pay for finding a purchaser thereof cannot be ^ See also | 2396, Code 'Si. 250 CHAP. VI.] RULE OF MERGER. § 193 sustained.' Only upon the dissolution of the community can judgments for separate debts of the spouses be executed out of their interests in community property; it cannot be done during coverture.^ Where an assessment was made to the husband alone, upon lots tliat were community prop- erty, for municipal improvements, it was held sufficient for the wife to be made a party to the action to foreclose the assessment lien.^ A sale of community real property to satisfy a judgment against the husband was held void in Washington against the children of the deceased wife.* 1 McGlaufliii V. Merriam, 34 Pac, Stockand v. Bartlett, 4 Wash. 730, 561. 31 Pac. 24 - Columbia National Bank v. Em- =* Town of Elma v. Carney, 4 Wash, bree, 2 Wash. 331, 26 Pac. 257; 418. * Philbrick v. Andrews, 8 Wash. 7. 251 § 194 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VII. CHAPTER VII. DISSOLUTION AND DISTRIBUTION OF COMMUNITY PROPERTY ON DIVORCE AND LEGAL SEPARATION. § 194. Distribution on Divorce-- Statutes. § 195. Statutory Provisions in Texas and California. ^ 196. In Washington and Nevada. ^ 197. Remedies Pending Separation Proceedings. § 198-199. Power of Court Over Community and Separate Property of Spouses. § 200. Court May Place Entire Property in Hands of Trustee. § 201-202. Division of Community Property. § 203-204-205. Proceedings Incident to Dissolution. I 206. Rule in California. §207. In Nevada aud Washington. § 208. Proceedings Subsequent to Dissolution. § 209-210. Division of Community Property After Divorce. I 21 1-2 1 2-2 1 3. Pleadings. ^ 214-215. Maintenance and Alimony. § 216. Separation of Property of Spouses in Louisiana. § 194. Distribution on Divorce — Statutes. — Since the legal community is instituted by means of the marriage contract, it is likewise terminated by the annulment of that contract as completely by dissolution of the marriage tie as by the death of one of the members of the marital partner- ship; consequently, the dissolution and partition of the community estate may be effected during the lives of the consorts by a divorce or a legal separation, and upon the dissolution of the marriage the community comes to an end, yet, without legal action on the part of the spouses, their 252 CHAP. VII.] STATUTORY PROVISIONS. § 195 rights and interests in the assets are not apportioned by vir- tue thereof as in case of dissolution by the death of one of the spouses. It would seem, however, that no distinction in this respect is made in Louisiana, at least upon the dis- solution of the marriage by divorce. The statutes in the other States have declared specifically how the division of the estate between the parties shall be made.' §195. Statutory Provisions in Texas and California. — The language of the Texas code in this particular is, that, "The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court shall seem just and right, having due regard for the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest him or herself of the title to real estate."^ The provisions of the code of California are as follows: " In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property and the homestead shall be assigned as follows : "1. If the decree be rendered on the ground of adultery or extreme cruelty, the community property shall be assigned to the respective parties in such proportions as the court, from all the facts in the case and the condition of the parties, may deem just. "2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties. "8. If a homestead has been selected from the community property, it may be assigned to the innocent party, either absolutely or for a limited period, subject, in the latter case, ^ Statutory provisions regarding the community system is unknown, the partition and division of the Fitts v. Fitts, 14 Tex. 443; Rice v. estate of the spouses on divorce are Rice, 21 Tex. 68. common to most of the States of the ^ Sayle's Text Stat. Art. 2864. Union, and are found in those where 253 § 196 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VII. to the future disposition of the court, or it may, in the dis- cretion of the court, be divided, or be sold and tlie proceeds divided. "4. If a homestead has been selected from the separate property of either, it sliall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party." ^ "The court, in rendering a decree of divorce, must make such order for the disposition of the community property and of the homestead as in this chapter (II) provided, and whenever necessary for that purpose, may order a partition or sale of the property and a division or other disposition of the proceeds."^ "The disposition of community property and of the home- stead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court." ^ §196. In Washington and Nevada. — The statutory provision in Washington relating to distribution of the com- munity property on divorce is as follows: "In granting a divorce the court shall also make such disposition of the property of the parties as shall appear just and equitable, having a regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provisions for the guardianship, custody and support and education of the minor children of such marriage."* The section above quoted is identical with that portion of the laws of Nevada contained in the Compiled Laws, 218, and was doubtless copied therefrom. The same provision is not found in any other community State. By comparison it is seen to be more nearly similar to the provisions of the 1 § 146, Cal. C. C. 3 ? 148, Cal. C. C. 2 I 148, Cal. C. C. " ? 771, 2nd Hill's Code. 254 CHAP. VII.] POWER OF COURT OVER PROPERTY. § 108 Texas statute than those contained in the other States, and, standing as it does without qualification by other provisions, amply clothes the court with full power to do complete jus- tice under all circumstances. § 197. Remedies Pending Separation Proceedings. — Tlie parties would doubtless be entitled to such remedial pro- cesses as may be necessary to conserve their interest in the community, or in the separate estate of the spouses, in anticipation of a division of the property. There is no authority in California, or in an}* of the community States, except Louisiana, for a divorce a mensa ct thoro, or to compel a husband to support his wife while she is living separate and apart from him, against his will and consent, without any statutory excuse for her absence from his home.^ § 198. Power of Court Over Community and Separate Property of Spouses. — The statutes of the several States have deemed it necessary to invest the courts with authority to equitably distribute not only the community property, but the separate property of the spouses, between them, with more or less particularity as to the i)artition thereof. In Texas the court said in Simmons v. Simmons,^ in commenting upon the article above quoted, " This provision, taken as a whole, evidently intends to invest the District Court with power to exercise, within reasonable limits, a discretion in making partition of the property between persons who are divorced by the court from the bonds of matrimony. The object of the statute seems to be to confer authority upon the District Court to make such a decree as will attain right and justice between the parties, under the circunjstances which may attend the particular case, and under the limita- tion imposed by the statute itself. This was the view taken by this court of this provision of the statute of 1841 in the 1 Hagle V. Hagle, 74 Cal. 60S. See - 23 Tex. 348. Appendix for statutes of the other States. 255 § 199 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VII. case of Fitts v. Fitts, reported in 14 Tex. 443. To what extent the District Court may exercise discretion to do v/hat may- seem to be just and right in the division of the estate of the parties in cases of divorce, it might be real difficult to deter- mine in such manner as to make a rule upon the subject applicable to all cases. Of course, if the District Court should make such a decree as would be clearly unjust to either party, or oppressive in its effect, that would be a viola- tion of the power conferred by the statute, and such a decree would be subject to revision and correction."* § 199. Power of Court Over Community and Separate Property of Spouses — Continued. — Tlie power to divide the common property in reference to the condition of the parties, and the support and education of the children, as may be equitable and just, has been held to be unquestioned.* "I shall not attempt a critical examination of the terms of the statute." .Said the court in Fitts v. Fitts^ "Generally, there would be no necessity for trenching on the separate property of either partner for the benefit of the other. Both would often have separate property and an equal division of the net amount of the common property would, in the meaning of the statute, be deemed just and right." The most obvious construction of the statute is, that on divorce the separate property should be restored to its owner respectively, and that such division of the community property be made as may seem just and right, it being understood that due regard must be had to the riglits of the parties, that suitable provision be made for the education and maintenance of the cliildren, if any, and that although the community property, if any, is the primary fund for which such provision should be made as would render the division just under all the circumstances, yet there may be cases where the separate property will be subjected to such charges, and especially in 1 Fitts V. Fitts, 14 Tex. 453; Rice ^ Trimble v. Trimble, 15 Tex. 20. V. Rice, 21 Tex. 68. ^ 14 Tex. 443. 256 CHAP. VII.] DIVISION OF COMMUNITY PROPERTY. § 201 favor of the wife as may be equitable and riglit; provided that the title to the lands be not divested.^ The proviso of the statute prevents either party from being divested of their titles in tlie lands, but it is no breach of the statute to decree the use of the property for a specific period, to the children, reserving the fee thereof in the owner to be enjoyed after the expiration of the trust estate so created.'^ § 200. Court May Place Entire Property in Hands of Trustee. — Where tlie divorce is granted, the court has authority not merely to partition the separate from the com- munity property, and to divide the latter, but in cases where the circumstances require, to place the whole property both separate and communit}^ in the hands of a trustee, to be under the supervision of the court, for the support and edu- cation of the minor children; provided that the title of either party to real estate shall not be divested.^ It is accordingly held tliat where the circumstances justify it the court ma}^ take property out of possession of both tlie hus- band and the wife and place it in the hands of a trustee to be administered by him, the proceeds to be applied, in pro- portions ordered by the court, to tlie support of the husband, the wife and their children.* § 20 J. Division of Community Property. — The first sec- tion of the California code above cited requires that the community property shall be equally divided between the parties; but the following section makes exceptions to the general rule by providing that if a divorce be granted on the ground of adultery and extreme cruelt}', the guilty party shall receive only such portion as to the court may seem just under the facts in the case. The only inference is that in the excepted cases the injured party is to receive, as a general rule, more than one-half of the propert}^, and ' Fitts V. Fitts, 15 Tex. 443. v. Rice, 21 Tex. 58; Trimble v, * Rice V. Rice, 21 Tex. 68. Trimble, 15 Tex. 18; Simmons v. ^ Rice V. Rice, 21 Tex. 69. Simmons, 23 Tex. 344. < Fitts V. Fitts, 14 Tex. 443; Rice 17 257 § 202 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VII. as much more as the court shall deem just.^ The court may, within its discretion in a particular case, award the whole of the community property to the wife in a judgment of divorce granted on the ground of adultery of the hus- band.^ The court said in Eslwger v. Eslinger,^ that "Section 146 of the civil code requires that the community property shall be equally divided between the parties; but the next section makes an exception to the general rule by providing that if a divorce be granted on the ground of adultery or extreme cruelt}^, the guilty party shall receive only such portion as the court shall deem just under the facts of the case. The inference is that in the excepted cases the injured party is to receive, as a general rule, more than one-half of the property, and as much more as the court shall deem just. Under the circumstances of this case we think the court ought to have awarded to the wife three- fourths of the community property for the paj^ment of the community debts."* § 202. Division of Community Property — Continued. — In granting a divorce on tlie ground of extreme cruelty or ^ Elsinger v. Elsinger, 47 Cal. 62; der the facts of the case so as to Drais v. Hogan, 50 Cal. 121; see award the wife three-fourths of the Jackson v. Jackson, 94 Cal. 446. community property. 2 White V. White, 86 Cal. 219; When the divorce is granted on Miller v. Miller, 33 Cal. 353. the ground of adultery or extreme See also on the ground of extreme cruelty, the division of the common cruelty where the whole property is property between the parties will awarded to the wife. Strozynski v. not be disturbed on appeal, unless Strozynski, 97 Cal. 189; see also the discretion of the court in that Smith V. Smith, 12 Cal. 217; Wuest respect appears to have been abused. V. Wuest, 17 Nev. 217. Bovo v. Bovo, 63 Cal. 77. Where wife was decreed separate In an action for divorce a judg- property of husband. Lowell v. ment decreeing a divorce and provid- Lowell, 55 Cal. 316. ing for a division of the community ^ 47 Cal. 64. property is the final judgment, * The decree of the lower court, although it contain auxiliary pro- granted on the ground of adultery visions appointing a referee to take and cruelty, in dividing the com- testimony and report as to what mon property equally between the property is community. Sharon v. spouses was modified on appeal un- Sharon, 79 Cal. 636. 258 CHAP. VII.] DIVISION OF COMMUNITY PROPERTY. § 202 adultery, llie discretion of the court in dividing the common property will not be reviewed unless the same was subject to abuse or improperly exercised.* It does not follow, how- ever, that a similar decree of divorce for the cause of adultery has the effect to deprive the guilty party of his or her interest in the community property.'^ When divorce is decreed, it is a dissolution of the marital rights in relation to the community property, and the wife, although degraded, is entitled to her share of such pro])erty and to her own separate property.'' Where the dissolution of the commu- nity is effected by a decree of divorce which directs an equal division of the community property, the parties hold, by virtue of the decree, thereafter as tenants in com- mon, eo nomine.^ "If, in the division of a community estate, it should be found proper to adjudge to the wife the whole of certain lots in satisfaction of her interest in the entire estate, such a decree would not be forbidden by the provisions of the statute that neither party shall be com- pelled to divest himself or herself from the title to real estate.'" 1 Eideumuller v. Eidenmuller, 37 the husband could thus be divested Cal. 364 See also Brown v. Brown, of all title in the community prop- 41 Cal. 88 erty or not, it was error to deprive 2 DeGody v. Gody, 39 Cal. 157. him of all interest therein. Craig 3 Byrne v. Byrne, 3 Tex. 341; see v. Craig, 31 Tex. 204. Newland v. Holland, 45 Tex. 588. Where the homestead is commu- * Mclvcran v. Benton, 31 Cal. 33. nity property the court may decree In Trigg v. Trigg, 18 vS. W. 317, it the use thereof to the wife, but it is was said : "We see no reason why, not within the power of the court to in a divorce suit where the decree give her more than a life estate in it. is granted, the homestead, like any Tieman v. Tieman, 34 Tex. 522. other community property, is not ^ Young v. Young, 23 S. W. 83. subject to division between the Where the judgment in divorce parties who were interested in it." adjudges plaintiff property which'is Art. 2864; see Rice v. Rice, 21 Tex. only specified as lots in deeds to 58. plaintiff without further identifying Where the court decreed one-half the property, the description will be of the property, including the home- insufficient and judgment reversed, stead and the remainder, to their only Young v. Yonng, supra. child, it was held error. Whether Where a Mercer's Colony certifi- 259 § 203 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VII. §203. Proceedings Incident to Dissolution. — In Louisi- ana, during the pendency of an action by the wife for separation by divorce, she may, for the preservation of her riglits, require an inventory presumed to be made of the moveables and immoveables in the possession of her hus- band, and enjoin him from disposing of any part thereof in an}^ manner. And it shall not be lawful for the husband to contract any debts on account of the community from the day on which suit is brought, and any alienation by him made after that time shall be null, if it be proved to have been made with the fraudulent view of injuring the rights of the wife.^ The husband is required to account for such revenues in partition. After the separation the wife may even by third opposition attack simulated mortgages of the community property made by the husband to defraud her.^ The provisions on this subject in tlie Texas Code are a substantial copy of the law of Louisiana, and are as fol- lows: "On and after the day on which the action for divorce shall be brought, it shall not be lawful for the hus- band to contract any debts on account of the community, nor to dispose of the lands belonging to the same; and any alienation made by him after that time shall be null and void, if it be proved to the satisfaction of the court that such alienation was made with a fraudulent view to injure the rights of the wife."^ "At any time during a suit for divorce the wife may, for cate would have become community It was held in Beopple v. Green, property had there been no divorce 33 An. 1191, thet the revenues of between the spouses, it will like- community property collected by wise remain community property the husband pendente lite are not although issued after the decree of chargeable to him in partition, but divorce, when the right to acquire are recoverable on the injunction it accrued, and was the basis of its bond. This case, however, appears issuance before dissolution by di- to have been overruled in Dillon v. vorce. Goode v. Jasper, 71 Tex. 48, Dillon, 35 An. 95; see Riley v. Hus- 9 S. W. 132. band, 22 An. 575. ^ Arts. 149-150, Voorhies Code ^ Beldon v. Hanlon, 32 An. 85. (taken from Arts. 270-271, Code ^ Art. 2867. Napoleon). 260 CHAP. VII.] PROCEEDINGS INCIDENT TO DISSOLUTION. § 204 the preservation of her riglits, require an inventor}' and appraisement to be made of both the real and personal estate which are in the possession of the husband, and an injunction restraining him from disposing of any part thereof in any manner."^ § 204. Proceedings Incident to Dissolution — Continued. — 1\\ Haggerty V. Harivell^^ the Supreme Court said: "The language of the law clearly rests the prohibition to alienate on the fraudulent intent on which it w'as made and throws the burden of proof of such fraudulent view of the motive for which it was made on the part}^ impeaching its fairness; and this would have been the result of an alienation with a fraudulent intent to defraud the rights of the other parties in the community, without the aid of the law cited. The general power given to the husband to manage and control community property would authorize an alienation thereof, provided it was not with an intent to defraud the wife. If the husband, without any fraudulent intent to defeat the rights of the wife, was about to dispose of the community property, the wife could protect herself by an injunction. This is provided for by statute; but it would, nevertheless, have been available to the party without the statutory pro- vision, under the general equit}^ jurisdiction of our District Courts." Divorce proceedings limit the husband's power to control and sell community property and inhibit convey- ances "with a fraudulent view to injure the rights of the wife." If the rights of the wife require further protection or restriction, an injunction must be invoked.^ In an action in equity the court will set aside the deed of the husband to lands transferred to a third party with iiotice of the claim of the wife thereto in divorce at the suit of the wife against the purchaser.* A conveyance by the husband pending ' Art. 2868; see Harvey v. Cum- ^ Moore v. Moore, 73 Tex. 390-391. mings 68 Tex 599, 5 S. W. 513; * Powell v. Campbell, 20 Nev. 233, Goode V. Jasper, 71 Tex. 48, 9 vS. \V. 20 Pac. 156. 132. The inventory taken in the suit is " 16 Tex. 663. not conclusive on the wife as to her 261 § 205 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VII. divorce proceedings instituted by the wife is void under the statute. The purchaser takes it lis pendens and is bound by the decree rendered in the divorce suit.' § 205. Proceedings Incident to Dissolution — Continued. — It was said in Wright v. Wright,^ "The object of tlie suit is a total disruption of the matrimonial connection, and during the progress of the cause tlie wife would have the right to sucli orders and writs as would secure the preserva- tion of her separate property, all of wliich is by law placed under the management and in the possession of the lius- band. Tlie legal power of disposition of tliis property is not in the husband, and, consequently, an inhibition of the exercise of such power could not operate injuriously or oppressively upon his rights, and the writ would be granted on satisfying the court that such property is in possession of the husband. The wife has an equal interest in the communit}' property and the husband is forbidden by the statute from contracting, after the commencement of the suit, any debts on account of such property; and all ahena- tions in fraud of the wife's rights are declared to be null and void, and the court should, on slight showing, issue its injunction for the conservation of this property which the husband is forbidden to encumber with debts, and whose alienations of which in fraud of the wife are declared to be null and void." The husband being, under the laws of Texas, the custodian of the community interest of himself and wife, and invested with its power of disposition, a fraudu- lent concealment of its extent and value from his wife, followed by his perjury as to that in a proceeding against the wife for divorce, will, on its discovery by the wife, entitle her to a review of the decree settling their property interests, their being no want of diligence to discover the facts on her share in the partition as to the ^ Berg v. Ingalls 15 S. W. 579. amount of the community property - 3 Tex. 177. or her share in the partition. Wright V. Wright, 71 Tex. 526. 262 CHAP. YII.] RULE IN CALIFORNIA. § 206 part.^ In Berg v. Ingalls^ the petition in divorce, on the ground of abandonment and adultery, alleged that defend- ant, husband, had appropriated community propert}', and prayed that certain land of defendant be decreed to plaintiff. Pending suit, defendant conve3^ed the land in question to bis children without valuable consideration. By the same deed certain other land was conveyed to plaintiff, who caused the deed to be recorded. Afterwards decree was rendered grant- ing the relief prayed for. Held, that by virtue of Art. 2867, Rev. Stat. Tex., providing that a conveyance by the husband pending a suit for divorce shall be void ; that defendant's deed passed no interest to the children. Under Pasch. Dig. Tex., Art. 3457, the validity of a conveyance executed by the husband pending a divorce suit, so far as it affected the wife's interests in the community property, depended upon whether it was made with the fraudulent view of injuring her rights. It would not be affected by the mere fact that there was not sufficient estate remaining to satisfy a claim subsequently established by her against his estate for waste of her community interest.^ The wife on obtaining a decree of divorce is entitled to satisfaction out of the mass of the community property for such portion of her interest as she does not obtain in kind, and this as against a purchaser with notice pending the suit for divorce.* §206. Rule in California. — It appears from the view of the court expressed in Griener v. Griener^ that the wife is remediless pending proceedings for divorce to re- strain the husband from a threatened fraudulent disposi- tion of the community propert}^ in anticipation of its division on dissolution, and likewise to restrain a fraud- 1 McMurray v. McMurray, 67 Tex. S. W. 396; see also Moore v. Moore, 665, 4 S. W. 357; see result of this 67 Tex. 295, 3 S. W. 284. case in McMurray v. McMurray, 14 * Moore v. Moore, 59 Tex. 59; see S. W. 895. Moore v. Moore, 73 Tex. 382, 11 S. ^ 79 Tex. 522, 15 S. W. 579. W. 396. 5 Moore v. Moore, 73 Tex. 382, 11 ^ 58 Cal. 115. 263 § 207 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VII. ulent grantee of the husband prior to the granting of the divorce from alienating the same. Her right seems to be suspended in this particular until the dissolution of the community is consummated before slie can attempt to re- dress her wrongs. On the authority of Van Maren v. Jolinson^ the court held in Griener v. Griener^ that the wife possesses no interest in the community property during coverture which entitles her to sue. It is, however, intimated that her interest may be sufficient during coverture to permit her to bring a bill quia timet to procure an injunction to restrain the husband from carrying out a threatened fraudulent transfer of community property which would result in loss to her, or to compel the fraudulent donor or grantee of such propert}'', with notice of such fraudulent intent, to give security to satisfy any claim which she may be found to have to it on the settlement of the affairs of the community, where the marriage tie has been dissolved. She cannot, however, maintain an action while the marriage bond. exists to set aside a transfer of the community property made by the husband for the purpose of defrauding her.^ The insti- tution of divorce proceedings by the wife does not create in her such an interest or right of possession in community property, even though in actual possession thereof, as will prevent her from being dispossessed by a writ of possession issued in an action commenced subsequently to her suit for divorce.* In an action for divorce the court has no power to enjoin the disposition of the property pending the contro- versy, unless there is some i^leading by which an issue as to such property is tendered."^ §207. In Nevada and Washington. — The doctrine of lis pendens is held in Nevada to apply to one who, pending suit for divorce, prays that the lands of the husband speci- ' 15 Cal. 312. ■* Gray v. Nunan, 63 Cal. 220. - 58 Cal. 120. '■> Remington v. Sup. Ct. 69 Cal. ^ Van Maren v. Johnson, 15 Cal. 633; see Griener v. Griener, supra. 312. 264 CHAP. VII.] PKOCEEDINGS SUBSEQUENT TO DISSOLUTION. § 208 fically described in the complaint be set apart for the wife's maintenance, with actual knowledge of these facts purchases and receives a deed to the lands. His title to such lands will not avail as against the wife, to whom the decree of divorce awards the land. Equity will, at the suit of the wife, set aside such deed, and require the title to be conveyed to her. The former husband would not be even a necessary party to such suit, his interest having been divested by the decree of divorce.^ It is believed that under the statute of Washington either spouse may invoke the equitable pro- cesses of the court to secure a just and equitable distribution of the assets of the community estate by virtue of the liberal provisions of the code. A decree of divorce of a foreign court is not operative in Washington to transfer the wife's title in community lands, nor to estop her from recovering them from her husband's widow by a second marriage.^ § 208. Proceedings Subsequent to Dissolution. — The legal consequence of a divorce from bed and board, or abso- lute divorce, is the dissolution of the community.^ The right to a division of the community assets follows such a termin- ation of the marriage relation, but in Louisiana it is held that where the wife brings suit to recover her share of the community property she must show that she accepted the community within the legal delays after the dissolution, the same as in case of dissolution by the death of one of the parties, otherwise her pretentions are without foundation in law.* It is held in Louisiana that when judgment of separa- tion from bed and board is rendered, the husband ceases to be the head of the community, and an undivided half of the property thereof vests immediately in each of the spouses, who thereby become joint owners.'^ If she take no steps to ^ Powell V. Campbell, 20 Nev. 232, ^ Hotard v. Hotard, 12 An. 145. 2oPac. Rep. 156; see Lake v. Lake, * Sue. of Ewing, 15 An. 416. 4 Pac. 712. ^ Dorviii v. Wiltz, 11 An. 514. 2 Gratton v. Webber, 47 Fed. Rep. 852. 265 § 209 BALLINGER OX COMMUNITY PROPERTY. [CHAP. VII. accept the community within the legal delays, she is pre- sumed to have renounced it/ § 209. Division of Community Property After Divorce. — A division of the community property may be had subse- quent to the rendition of the decree of divorce, and a failure to ask for such partition in the suit for divorce does not con- clude the parties. The case of Hardin v. Hardin,^ declaring that controversies not made and settled in the action for divorce must be treated as waived and lost, was not a decis- ion but a mere opinion. Hence the divorced wife may after- wards sue her husband, or his grantees pending the divorce suit, to recover her interest in the community property.' The mere fact that no partition was made of the property in a suit for divorce would not defeat the claim of the wife, and particularly when the property at the date of the divorce suit was not in esse, as in case of the community interests in public lands before patents issued.* A decree rendered in a divorce suit adjudging that all the property that the wife "brought to her said husband by the marriage be vested in her as her separate estate," and which is silent as to the dis- position of the community estate of the husband and wife, does not affect the community interest of the" wife.^ Deeds of separation to community property made after the separa- tion of the husband and wife, or when in the act of their separating, are valid so far as they settle rights of property between them, if made without coercion or undue influence, and the provisions are just and equitable.® After the lapse of over forty years a divorce will be presumed from the fact 1 Decuvir v. Lejune, 15 An. 569; ^ Whetstone v. Coffey, 48 Tex. Audrick v. Ivamothe, 12 An. 76; 276, 277. Herman v. Theurer, 11 An. 70; ■* Wimberly v. Pabst, 55 Tex. 591. Weller v. Van Hoover, 42 An. 600, -'' Harvey v. Cummings, 68 Tex. 7 So. Rep. 702. 599, 5 S. W. 513; see also Edwards But acceptance need not be by v. Brown, 68 Tex. 329, 4 S. W. 380, notorial act. Williamson v. Hamil- 5 S. W. 87. ton, 13 An. 3S7. " Rains v. Wheeler, 76 Tex. 390, 2 38 Tex. 616. 13 S. W. 324. 266 CHAP. VII.] DIVISION OF PROPERTY AFTER DIVORCE. § 210 that the husband separated from his wife, going to another State, and that several years later each married again.^ It was the intention of the Legislature of Nevada by the act of March 7th, 1865, that in case of a divorce for the miscon- duct of the husband, other than imprisonment or adultery, his individual or sole property should be subject to the order of the court as provided in § 27.^ Under the Nevada stat- ute, upon dissolution of the marriage the common property is divided equally between the parties except when the divorce is granted for adultery or extreme cruelty, in which case the guilty party shall receive only such portion as the court may in its discretion deem just and allow. This is upon the theory that the common propert}' is acquired by the joint efforts of the parties, and should be equally divided between them, unless one of them has forfeited the right by committing adultery or extreme cruelty, in which case the court may divide the property according to its legal discre- tion.^ "The statute contemplates that the division of the property shall be graduated, among other matters, by the quality of the offense of the delinquent." And to this end, if justified by the facts, the court may award the whole of the husband's property to the wife on a divorce granted for extreme cruelty.* The language of the statute manifestly intends to confer upon the court power to make equitable division of the property.'^ § 210. Division of Community Property After Divorce — Continued. — When a divorce is granted on account of the adultery of the husband, and when the marriage is dis- solved by the husband being sentenced to imprisonment, the wife shall receive the same portion of his real and ' Harvey v. Carroll, 23 S. W. 713; ^ See Appendix, § 510 (Nevada), see also Nixon v. Wichita L,. & C. Lake v. Bender, 18 Nev. 361. Co. 19 S. W. 560; Andrews v. Ran- '' Wuest v. Wnest, 17 Nev. 217, 30 don, 34 Tex. 536. Pac. Rep. 886. " Darrenberger v. Haupt, 10 Nev. '" Wuest v. Wuest, supra. 43. 267 § 210 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VII. personal property the same as if he were dead ; but in some cases the court may set aside such portion for lier support, and in other cases the court may set aside such portion for the support of lier children as shall be just and equitable.^ The discretion of the court is limited to the setting apart ''in other cases" such portion of the husband's property as might be deemed just and equitable for the wife's support and their children. It is doubted whether his separate property in any case should be awarded to the wife in fee unless such award be necessary for her support. It would ordinarily be sufficient to appropriate the lands to her use.^ In an action for divorce for extreme cruelty the statute per- mits the court to decree to the wife any portion of the husband's separate property absolutely; it should, however, never be done unless reasonably necessary for the accom- plishment of the primary object of the statute, namely, the support of the wife and minor children ; but, if tlie accom- plishment of this object requires the title to be decreed to her, the statute will not interfere."^ The divorced wife may sue her former husband and his subsequent wife for a proper share in the distribution of the community property where the husband has pretended to convey the common property to the second wife, and may have restitution for her share of the same. The jurisdiction of the District Court is not limited in such case as to the amount.* In an action for the division of tiie common property of the hus- band and wife after a decree of divorce, the plaintiff must bring herself within the provisions of the law by affirma- tively stating such facts as give her a right to the property under the statute. It is not material where the marriage was solemnized, if the parties afterwards, and after the pass- age of the act " resided and acquired the property herein." There is no presumption of law that the marriage took 1 Compiled Laws Nev. 220. ^ Powell v. Campbell, 20 Nev. 232, - Lake v. Bender, 18 Nev. 363, 7 20 Pac. 156. Pac. 74. ^ Deuprez v. Deuprez, 5 Cal. 387. 268 CHAP. VII.] PLEADINGS. § 211 place at any particular point, nor that the property, especially money, '-'and other personal property," was acquired in any particular locality.^ § 211. Pleadings. — The statute in relation to the disso- lution of the marriage by divorce directs, except as to decree rendered on the ground of extreme cruelty or adultery, that the common property shall be equally divided between the spouses. Consequently, the partition of the community property is one of the direct results of a decree of divorce and is part and parcel of the decree to be rendered, and is necessarily a proper subject for a divorce. A bill seeking a divorce and division of the communit}^ property is not subject to the charge of multifariousness. In the absence of an allegation that there was common property, the pre- sumption would be that there was none. So it is exceedingly proper for the information of the court, and for its proper action, to disclose specifically, if possible, in what the com- mon property consists, its nature and value; and, as the one-half of it is equitably the right of the wife and to be determined in the action, she may properly make anyone claiming an interest in it a part}^ that she may obtain a complete determination thereof.^ In an action for divorce, where the complaint states the existence of common prop- erty, the court, in addition to granting a divorce, may order a division of the common property and that a homestead be set apart to the plaintiff, although no relief of this character is prayed for in the complaint. The court may, when the defendant appears and answers, grant any relief consistent with the case made and embraced within the issues, although not specifically prayed for.^ The statute which prescribes what shall be common proj)erty between husband and wife and how it shall be disposed of in divorce between them, is a mere regulation of a right of property ' Dye V. Dye, ii Cal. 163; quali- ^ Kashaw v. Kashaw, 3 Cal. 322; fied in Gimmy v. Doane, 22 Cal. 635. see Sharon v. Sharon, 77 Cal. 102. ^ Gimmy v. Gimmy, 22 Cal. 633. 269 § 212 BALLINGER ON COxMMUNITY PKOPERTY. [CHAP. VII. and cannot properly be said to provide a new right of action. Tlie complaint for relief under this statute need not, there- fore, comply with the rules governing the forms in pleadings in statutory actions.^ This settlement of property rights is incident to every action for divorce when there is any prop- ert}^ involved, and such settlement may be sought in the cross complaint as well as in the original complaint.^ § 212. Pleadings — Continued. — The Supreme Court of Washington, speaking on this subject in Webster v. Webster,^ in a clear and exhaustive opinion, says: "This statute, however, provided that when coverture is to be broken and the marriage relation dissolved, that the parties shall bring into court all their property, and a complete showing must be made. Each party must lay down before the chancellor all that he or she has, and after an examination into the whole case, he makes an equitable division. This view is strengthened, and it seems to me established beyond contro- versy by the succeeding j^rovision of the section, 'having regard to the respective merits of the parties, and to the condition in which they will be left b}^ such divorce, and to the part}^ through whom the property was acquired.' If the court has no jurisdiction over the separate property and cannot take it into account in making the division, that por- tion of the statute which says it shall liave regard to the party through whom the property was acquired is meaning- less. Tlie law does not require an equal division of the property, but a 'just and equitable' division, and as no general rule for a just and equitable division can be laid down, but each case must be adjusted according to its own merits and the particular circumstances surrounding it, the court investigates all the circumstances (1) as to who is to blame, or, if neither party is blameless, the degree of blame to be attached to the respective parties; (2) who is the more proper j^arty for the custody of the minor children, if au}^; 1 Gimmy v. Doane, 22 Cal. 635. ^ 2 Wash. 420. 2 Mott V. Mott, 82 Cal. 413. 270 CHAP. VII.] PLEADINGS. § 213 (3) if there is a disposition of the property to be made, the manner in which it was acquired, whether derived princi- pally from the husband or the wife, or by their joint exer- tions, the conditions of the parties as to age and health, and a great many considerations which will necessarily enter into the discreiion of the court in making the division. The separate property of tlie husband or the wife is simply a cir- cumstance for the court to take into consideration in making the division."^ The court has the power under the statute of Washington to award any or all of the estate of one of the parties as well as the community property to the other in the exercise of sound legal discretion ; but to do so it is necessary that the propert}^ should be brought before the court by describing it in the pleadings. If not so brought into the case the court has no jurisdiction over it and cannot dispose of it or subject it to the claims of either party .^ § 213. Pleadings — Continued. — It was held in DeGody V. Gody,^ that where the decree of the court was for a divorce simply and the question of the rights of the parties to the common property was not presented in the pleadings, the parties, or either of them, are not concluded in respect of their claims in the community property; but the wife may have injunctive relief against a threatened disposition of the common property with a view to place the same beyond her reach. In Lord v. Ilough,^ "The pending of a suit for a divorce does not of itself interrupt the exercise of the hus- band's powers. Tlie property does not come into the custody of the court by the institution of the suit. The husband has still the control of it and full power of disposition of it. He is held to equal good faith in all transactions relating to it as before the commencement of the suit. He is subject to the same restrictions in its disposal. He cannot make a ^ See Fields v. Fields, 2 Wash. ^ 39 Cal. 157. 441. " 43 Cal. 585. - Pliilbrick v. Andrews, 8 Wash. 7, 35 Pac. Rep. 358. 271 § 214 BALLINGER ON COMMUNITY PKOPERTY. [CHAP. VII. voluntary conve3'ance of any portion of the property, with the intent to deprive the wife of her claims, in anticipation of the divorce any more than he could make such fraudulent disposition in anticipation of her widowhood. In the absence of a fraudulent intent he may, however, pending divorce proceedings, voluntarily dispose of a portion of the com- munity property reasonable in reference to the whole amount of the community estate.^ In an action for divorce for ex- treme cruelty where nothing is said in the pleadings about community property, it is error to award it all to one of the parties.^ § 214. Maintenance and Alimony. — According to Article H8 of the Louisiana code, "If the wife has not sufficient income for her maintenance during the suit for separation, the judge shall allow her a sum for her support proportioned to the means of the husband. The husband cannot be com- pelled to pay this allowance unless the wife proves that she constantly resided in the house appointed by the judge." It seems to be well settled that pending a divorce suit, a wife asserting a just claim for alimony within the meaning of the statutes prohibiting fraudulent conveyances, should be deemed a creditor.-^ A suit for maintenance cannot be maintained in Texas without bringing an action for divorce.* Except incidentally in a principal demand for separation from bed and board, or divorce, a married woman cannot in Louisiana sue her husband for alimony.^ The statutes of California authorize maintenance and allowance for the wife and minor children pending divorce proceedings, and even where judgment is denied, to be required to be paid by the husband.® Resort must be had in satisfying the orders of ' Ray V. Ray, i Idaho, 566; see Doane, 22 Cal. 635; Miller v. Miller, Smith V. Smith, 12 Cal. 225, 73 Am. 33 Cal. 353. Dec. 533; Peck v. Brummagim, 31 » j^ott v. Kaiser, 59 Tex. 673. Cal. 446, 89 Am. Dec. 195. * Trevino v. Trevino, 63 Tex. 650. - Howe V. Howe, 4 Nev. 469; cit- ^ Boardette v. Husband, 18 An. 41; ing Dyev. Dye, 11 Cal. 163; Gimmy Moore v. Moore, 18 An. 613. V. Gimmy, 22 Cal. 633; Gimmy v. " gg j^e to 140, Cal. C. C. 272 CHAP. VII.] MAINTENANCE AND ALIMONY. § 215 the court in this behalf first to tlie community property, then to the separate property of the husband.^ The court may, after a decree of divorce has been granted, notwith- standing a sum certain was set apart therein to be as her part of the common property, and the custody of the minor cliildren awarded to her, apply for and secure an order for past as well as future support of the child.^ § 215. Maintenance and Alimony — Continued. — It was held in Drais v. Hogan^ that a married woman could not bind herself by a contract to pay an attorney for procuring a divorce and a division of the community property. Whether the services rendered by an attorney for a married woman in procuring a divorce and securing her a first division of the common property, may be enforced in a court of equity as a lien on lier share of the common per- sonal property or her separate personal estate, provided the services were rendered on the faith of lier personal separate estate, was suggested but not decided in Terry v. Hammond.*' There is no provision of law authorizing the court to require the husband to pay, subsequent to the divorce and out of his separate property, any sum toward the maintenance of the former wife, when the divorce was for her offense. This is authorized only where the divorce is granted for an offense of the husband, under Sec. 139, Cal. C. C.'^ As an incident to the power to decree divorces, a court of equity may grant to the wife pendente lite on a proper showing, temporar}^ maintenance and allowance for solicitor's fees in the absence of a sufficient separate estate belonging to the wife, or charge the same against an}' community property belonging to the spouses, whether under tlie control of the husband or of the wife. Where the wife has an ample estate of her own, as an incident of the divorce proceedings, a court may decree nec- essary counsel fees against her separate estate. The com- 1 U 142-3 Cal. C. C. * 47 Cal. 32. * Wilson V. Wilson, 45 Cal. 399. » Everett v. Everett, 52 Cal. 384. ' 50 Cal. 121. 18 273 § 216 BALLIiVGER ON COMMUNITY PROPERTY. [CHAP. VII. promise of the husband and wife, to which the soHcitor is not a party, cannot take away his estabhshed right to liis fees.^ § 216. Separation of Property of Spouses in Louisiana. — According to the code of Louisiana the wife may j^etition for and obtain a separation of property against her husband "whenever her dowry is in danger, in consequence of mis- management or when the disordered condition of his afllairs renders his estate insufficient to meet his just debts.' This right was borrowed from the code Napoleon^ and its institution was made necessary to protect tlie separate estate of tlie wife which passed under the husband's control by virtue of the marriage. Tliis right of apphcation is accorded tlie wife, but not the husband. A separation of property imphes a dissolution of the community, for such is its necessary effect.* And also a relinquishment of the wife's interest in the community propert}'',^ unless she accept it within the legal delays.*' And, uidess the judgment of separation is promptl}^ executed it is without force.' A voluntary separa- tion is null both as respects third persons and the husband and wife. To render it valid it must be rendered by a court of justice.* And where the spouses rest entirely upon a volun- tary separation and do not seek a separation of the property or divorce,** the acquisitions pending such separation fall into community even though one may be in fault in abandoning the other. The property bouglit by the wife after institu- tion of the suit decided in her favor, is presumed to be her separate property.^" 1 Lamy v. Catron, 23 Pac. Rep 773 Hotard, 12 An. 145; Dugras v. Hus- (New Mexico). band, 6 Rob 527. 2 Voorhies' Code, Art 2425; Child- = Peck v. Gellis, 23 An. 590. ersv. Johnson, 6 An. 634; Robertson ^ Audrick v. Lamothe, 12 An. 76; V. Kelly, 9 An. 268; Brown v. Cred- Snoddy v. Brasnear, 13 An. 469. iters, 17 An. 113. '' Handy v. Sterling, i An. 308. 3 Arts. 1443 et seq. « La. C. C. 1808, Arts. 87, 88; Muse * Holmes v. Barbin, 15 An. 553; Syndic, v. Garborough, 11 La. 521. Davock V. Dorcy, 6 Rob. 344; Snoddy » Arts. 157, 2389, La. C. C. V. Brasnear, 13 An. 469; Hotard v. '"Drum v. Kleinman, 31 An. 124; Joflfrion v. Bordelon, 14 An. 618. 274 CHAP. VIII.] DESCENT AND DISTRIBUTION. §217 CHAPTER VIII. DESCENT AND DISTRIBUTION. ^217. General Considerations. I 218. Common Law Abolished. § 219, Analogous to Surviving Partner. f 220. In Louisiana. Dissolution — Eflfect of — Rights, Powers and Interests. I 221. Presumptions Relating to Community Estates on Dissolu- tion. I 222-223. Distribution, Interests and Powers of the Spouses. § 224-225-226. Creditors and Community Debts. § 227. Renunciation by Wife and Heirs. § 228. In Texas. Descent and Distribution — Rights and Interests of Spouses and Heirs. ? 229. Community Homestead — Descent and Distribution of. I 230-231. Survivor's Rights — Powers and Duties of. § 232-233. Survivor Qualifying Under the Statute. ^ 234. Testamentary Disposition. § 235-236-237-238-239. In California. Rights and Interests of Survivor and Heirs. I 240-241. Testamentary Disposition. § 242. Homestead. ? 243. In Washington. Descent and Distribution — Rights and Powers. ^ ?44. Interests Upon Dissolution. § 245. Order of Descent. ^ 246. Who May Inherit. ^ 247. Debts and Charges. § 248. Liability of Separate After Exhausting Community Prop- erty. I 249-250. Necessity for Administration. § 251. Testamentary Disposition. 275 ^218 BALLINGER ON COMMUNITY PROPERTY. [CIIAP. VIII. § 217. General Considerations. — The statutes of descent and distribution are, in a greater or less degree, mere arbi- trary rules for determining the course of the devolution of property left by a decedent. These statutes are presumed to be founded upon the principles governing the natural rights of the famil}^ status and, also, upon the character of the property souglit thereby to be transmitted. The prin- ciples upon which the ganancial system of Spain rest, were carried out in the distribution of the marital estate on disso- lution by death of one of its members to its logical conclu- sion, namely: an equal division of the assets between the survivor and the heirs of the deceased spouse. Under that system the dissolution of the estate, held in common between the husband and wife, immediately took place upon the death of one of them.^ Some Spanish jurists, however, insist that upon the death of the husband or wife, the com- munity continues between the survivor and the heirs of the •deceased until partition has actually taken place, and the latter are entitled to share in its acquisitions during its con- tinuance.^ But the general rule appears to have been that in case the heirs of the deceased spouse continue to live with the survivor, although the community has ceased to exist, a new one may be created between such heirs and the sur- vivor, if they continue to keep their property in common, but in such event the gains or losses are apportioned among each in proportion to his share, according to the rights attendant upon the dissolution of commercial partnerships.* The community, however, possesses a fictitious existence, subsequent to the actual dissolution by the demise of one of its members, for the purpose of liquidation and payment of debts.* § 218. Common Law Abolished. — The common law doc- trine of dower and courtesy is absolutely incompatible with ' Schmidt's Civil Law of Spain ^ Schmidt's Civil Lavv's, Arts. 57, and Mexico, Arts. 56, 57. 58, 728, 729. - I Burge Com. 421. ■* Sue. of Dumestre, 40 An. 571, 7 So Rep. 624. 276 CHAP. VIII.] RIGHTS, POWERS AND INTERESTS. § 220 the doctrine of succession of property in community, and the two cannot stand together and both exist. Louisiana and California never adopted dower and courtesy as a part of their laws. Texas possessed the right of dower and court- esy for a brief period following 1839. In Washington dower and courtes}^ were superseded by the community laws in 1869, but the right was not expressly repealed until 1871. And in Nevada the introduction of the communitv statutes superseded dower and courtesy in 1865. The statutes of the community States have made special rules governing the descent of community property, as will be found by reference to the Appendix. § 219. Analogous to Surviving Partner. — The rights and powers of a survivor in the marital partnership bear some resemblance to those of a survivor in a commercial partnership, and in Texas they are recognized as closely analogous thereto. Each of the community States possesses statutes of descent of community property peculiar to itself, and no great resemblance exists between any of them, unless, perhaps, between Louisiana and Texas.^ Consequently each State, so far as practicable, will necessarily be treated sepa- rately, for the adjudications and interpretation of the laws of one State will have little or no application in any other regarding this subject. § 220. In Louisiana. Dissolution — Effect of — Rights, Powers and Interests. — The Louisiana code is a substantial re-enactment of the civil law regarding the law applicable to the community estate upon the dissolution of the marriage by the death of one of its members. From the death of either spouse the dissolution of the community results as a legal consequence, whereupon all the effects which they reciprocally possess are presumed com- mon effects or gains, unless it be satisfactorily shown which of them is separate property; and the gains are divided into 1 Moody V. Smoot, 78 Tex. 1 19, 14 S. W. 2S6. 277 § 220 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. two equal portions, between them or their heirs; so also the profits arising from their separate effects brought into mar- riage, administered by the husband or by them both, and this is true regardless of the quantum of property brought into marriage by them reciprocally. The fruits hanging by the roots on separate lands, and the young of cattle yet in gestation, are also equally divided ; but not the fruits of the paraphernal effects of the wife administered by her. The increase or improvement during coverture of tlie separate property of either spouse entitles the other to a reward of one-half the value of the increase or amelioration, if the same is the result of the common labor, expense and industry of the spouses, but no award is due where the increase is the result of the ordinary course of things, the rise in the value of property, or to the chances of trade. In tlje partition of the community both are equalh'' liable for their share of the debts contracted during marriage and not acquitted at the time of its dissolution. The w^ife or her heirs may exonerate themselves from the debts contracted during the marriage by renouncing the community, except where the wife has taken an active concern therein her right of renunciation is waived, and to preserve it she must make an inventory within the legal delays. Upon her death these rights devolve upon the heirs of the widow. Creditors of the wife may attack the renunciation when made with a view to defraud them.^ In Louisiana, as under the Spanish law, one-half of the community estate, subject to the pay- ment of the community debts, descends to the survivor, the other half to the heirs of the deceased.^ 1 La. Civ. Code, Arts. 2404, 2422; Waring v. Zunts, 16 An. 49; Kellar Schmidt's Civ. Law, Arts. 43, 44, v. Blancliard, 21 An. 38; Flemming 49, 51, 52, 56, 61-69; I Burge Com. v. Flemming, iS An. 726; Holmes 420. V. Barbin, 13 An. 553; Sue. of Plan- 2 Broussard v. Bernard, i Rob. chet, 29 An. 520; Sue. of Viaud, 11 149; Cockburn v. Wilson, 20 An. 39; An. 297; Schouler on Husband and Moore v. Moore, 20 An. 159; Chap- Wife, | 340. man v. Woodward, 16 An. 167; 278 CHAP. VIII.] PRESUMPTIONS ON DISSOLUTION. § 221 § 221. Presumptions Relating to Community Estates on Dissolution. — The community of acquests and gains commences at the moment of marriage with nothing and includes at its dissolution, presumptively, everything found in the succession of the deceased spouse, and in the posses- sion of the survivor, unless it be satisfactorily proved which of such effects either of the spouses brought into the mar- riage or which has been given them separatel}'.^ Whatever either party brought into the marriage is to be deducted from the mass and the balance alone divided. It will not suffice to show that either party was possessed of particular property or had a sum of money before marriage; it must be shown that it belonged to him at the time of its celebra- tion.*^ The propert}^ found at the dissolution constitutes the body of acquests and gains.^ Though the eftects at disso- lution arc presumed common, the presumption must yield to contrary proof.* To arrive at this proof it is necessary to consider the property the spouses possessed at the marriage, that acquired during the marriage and that reciprocally owned and possessed at its dissolution.^ This proof need not be by any authentic instrument; any legal evidence is admissible. An authentic act passed between the parties to a marriage will not be conclusive against third parties as to the property possessed by either at the time of the marriage." The presumption exists no matter ^ R. C. C. 2405; Bouligny v. Jus- Spanish law. Nueva Rec. 5, 9 1.; tin, 16 An. 209; Sue. of Pratt, 12 Montegut v. Trouart, 7 Mart. 361; An. 457; C. C. 2374; Denegre v. Babin v. Nolan, 6 Rob. 508; Sue. of Denegre, 30 An. 275; Huntington v. Baum, 11 Rob. 314; Grayson v. San- Legras, 18 An. 126; NoreS v. Car- ford 12 An. 646. raby, 5 Rob. 292; Bronson v. Baleh, - Nores v. Carraby, 5 Rob. 292. 19 An. 39; Sue. of Breaux, 38 An. ^ C. C. 2374; Sue. of Packwood, 728; Babin v. Nolan, 6 Rob. 508; 12 Rob. 334. Sue. of Baum, 11 Rob. 314; Lyneh * Thebodeaux v. Thebodeaux, 16 V. Benton, 12 Rob. 113; Bryan v. La. 40; Tanner v. Robert, 5 Mart. Moore, 11 Mart. 26, 13 Am. Dec" N. S. 257. 347; Sue. of Dumestre, 40 An. 571, ^ Thebodeaux v. Thebodeaux, 16 7 So. Rep. 624. La. 40. The rule was the same at the ^ Nores v. Carraby, 5 Rob. 292. 279 § 222 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. what were the relative separate estates of the spouses at the time of marriage.^ § 222. Distribution, Interests and Powers of the Spouses. — The community, with its legal effect, ceases to exist at the death of either party, and the title to one-half thereof vests absolutely in the heirs of the deceased spouse, the other half in the survivor.*^ The respective interests attach at the moment of dissolution, subject, however, to the payment of the community debts.'' The surviving husband is the absolute owner of one-half of the community property and a lifetime usufructury of the other half, which latter half the heirs of the deceased spouse cannot set up any claim to during his life.* The surviving wife is also entitled to one-half of the community property as owner, and the usu- fruct of the other half during widowhood.'^ She has a vested interest in the community property after its dissolution.® The survivor and the heirs of the deceased spouse are each seized of one undivided moiety of the property, subject to the payment of the debts.^ They become co-proprietors of the estate; and where the survivor retains possession he becomes the negotiorum gestor of the heirs.^ The moment -Sue. of Foreman, 38 An. 700; nity debts. Webre v. L,orio, .y/^^ra. Sue. of Breaux, 38 An. 728. ■* Sue. of Planchet, 29 An. 520. - Walker v. Kimbrough. 23 An. * OfiFutt v. Duson, 35 An. 986. 637; Broussard v. Broussard, 7 La. The right of the survivor in the 217; I Rob. 149; 10 Rob. 18; 3 An. community to claim the usufruct of 562; Glasscock v. Clark, 33 An. 5S4; the interest of the deceased spouse German v. Gay, 9 La. 580; Webre in such property is coupled with the V. Lorio, 42 An. 178, 7 So. Rep. 460. obligation to furnish security in 3 Tugwell V. Tugwell, 32 An. 848; favor of the heirs. Waring v. Zunts, Broussard V. Broussard, 7 La. 222; 16 An. 49. German v. Gay, 9 La. 583; Gale v. " Sue. of McLean, 12 An. 222. Davis, 4 Mart. 652. " Hart v. Foley, i Rob 378; Heirs The survivor may dispose of his of Murphy v. Jury, 39 An. 785; or her half .subject to the debts and Grayson v. Sanford, 12 An. 646; charges of the community. Webre Depas v. Riez, 2 An. 30. V. Lorio, supra. * Griffin v. Waters, i Rob. 149; But the personal creditor cannot Stewart v. Pickard, 10 Rob. 18; subject it to sale for his debts, sub- Broussard v. Bernard, 7 La. 217. jeet to the payment of the commu- 280 CHAP. VIII.] INTERESTS AND POWERS OF SPOUSES. § 223 the liusband or wife dies, the title to one-half of the common property vests immediately in his or her lieirs. They be- come joint owners of the whole togetlier witii the survivor. In that state of things, and until a division takes place, the fruits of the common property continue common to both parties. To this extent the doctrine of the continuation of the community as existing in Spain may be said to be rec- ognized.^ The wife's heirs are entitled to half the property purchased by the husband during the community, though not paid for until after her death, subject to the payment of the community debts.^ Her interest in tlie community on dissolution is residuary; it is one-lialf of what remains after its debts are paid.^ Neither the wife nor her representatives can claim anything until the debts of the community be paid.* The partnership should be settled with perfect equalit}', one party getting no greater advantage than the other.' The surviving partner has the right to have his half given to him in kind, if it can be done." § 223. Distribution, Interests and Powers of the Spouses — Continued. — The property of each partner owned before its inception, and that acquired by inherit- ance or donation during coverture, is to be resumed by the owner, or by his or her heirs.'' Property purchased by the husband after the death of his wife does not belong to the community.^ After the dissolution the spouses may sue for the liquidation of the community, but not for the half of any specific property." The husband as head and master of the ^ Gale V. Davis, 4 Mart. 645. " Placencia v. Placencia, 8 La. ^ Morris V. Covington, 2 An. 259. 573. 5 Dixon V. Dixon, 4 La. 18S; ' Fusilier v. Masse, 19 La. 329. Smith V. Syndic, 5 An. 381; Ber- ^ Huff v. Borland, 6 An. 436, thelot V. Fitch, 12 So. Rep. 625; ^ Bartoli v. Huguenard, 39 An. Landreaux v. Logue, 9 So. Rep. 32. 417; see also Bronson v. Batch, 19 < Hart V. Foley, i Rob. 378; De- An. 39; Hart v. Foley, i Rob. 378; pas V. Riez, 2 An. 30. Depas v. Riez, 2 An. 30. * Coons V. Stringer, 14 An, 726; Downs V. Morrison, 13 An. 379. 281 § 223 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. community lias no power to sell, after dissolution, and can convey title to no greater part of the community property than his undivided half interest therein. The vendee be- comes co-proprietor with wife's succession.^ The survivor is without legal authority to encumber or mortgage the one- half interest of the heirs in the community property.^ On the dissolution of the community by the death of the wife, the riglit of the husband ceases to stand in judgment with- out the authorization of the court, in matters affecting the community property.^ But the widow or her heirs may mortgage or sell their interests, but without prejudice to the community debts.* The wife or her heirs may sue for her share in the community before it has been liquidated,^ and without alleging that it is solvent,'^ the rights of the parties being fixed at the moment of dissolution.^ Pending admin- istration and settlement of the community the wife cannot mortgage or alienate any of its effects so as to defeat its creditors. Any rights granted by lier upon the community are of necessity subordinate to the paramount claims of com- manity creditors.* Such conveyance is not null, but affects her interests only as determined by settlement of the com- munity." Before liquidation of the community the mortgage by the widow of her undivided half of a certain piece of community property is invalid, and its execution may be enjoined by the heirs." The death of the wife does not de- 1 Bennett v. Fuller, 29 An. 663; i Rob. 149, 378; 10 Rob. iS; 3 An. Broussard v. Bernard, 7 La. 222; 562. Germand v. Gay, 9 La. 580; Tug- =* Poutz v. Bisters, 15 An. 636. well V. Tugwell, 32 An. 852; Petrie •* Dickson v. Dickson, 36 An. 453, V. Wofford, 3 An. 562; Glasscock v. 455-6. Clark, 33 An. 585; Myers v. Eaton, ^ Heirs of Murphy v. Jury, 39 An. 34 An. 1026; Heirs of Murphy, v. 785. Jury-, 39 An. 786; Boissat v. vSuUi- » Glasscock v. Clark, 33 An. 585. van, 21 An. 565; C. C. 2334; Contra, " Tugwell v. Tugwell, 32 An. 848. Williams v. Fuller, 27 An. 634. « Dunham v. Williams, 32 An. (Overruled.) 162; Cestac v. Florence, 31 An. 493. "- Walker v. Kimbrough, 23 An. « Dickson v. Dickson, 37 An. 915. 637; see 7 La. 222; Griffin v. Waters, " Cestac v. Florence, 31 An. 493. 282 CHAP. VIII.] CREDITORS AND COMMUNITY DEBTS. § 224 prive the husband of the right to make bona fide settlements for the payment of the communit3^ Nor do such settlements novate the debts as to the community.^ The community property is liable for the community debts.^ § 224. Creditors and Community Debts. — The interests of the spouses in the community property are subject to the payment of the community debts, and where liquidation fails to show gains to be divided no suit can be maintained for half the price of any specific property acquired during coverture.^ The community debts must be paid out of its property, and the widow's share is equally burdened with that of the husband's succession for their charges. The survivor is entitled to one-half of what remains after they are paid.* The debts of the community consist not only of what may be due third persons, but of such sums as either of the spouses may have furnished from his or her separate means to acquire or improve the community property. After a partner's death community property may be seized and sold for the survivor's debts, so far as the latter's interest is concerned, when no proceedings for partition among the heirs are had before the seizure.'^ The community funds from which its debts are to be paid should be in the hands of him who is charged with their payment. Hence, the settlement of the husband's succession, of which that of the community is the natural consequence, carries with it the sale of sufficient community effects to |)ay its debts." After the husband's death the community debts, for which as its head he is always liable, are generally set up against his suc- cession; but if the wife die first, application is generally made to the husband alone.^ The administration of the 1 Rusk V. Warren, 25 An. 314. solution. Thezan v. Tliezan, 28 An. ^ Lawson v. Ripley, 17 La. 274; 442. Baird V. Ivemee, 23 An. 424. * Lawson v. Lawson, 12 An. 604; ^ Hart V. Foley, i Rob. 378; For- Depas v, Riez, 2 An. 30. tier V. Slidell, 7 Rob. 398; Depas v. ^ Cooney v. Clark, 7 La 157. Riez, 2 An. 226. As an entirety not ^ Sue. of McLean, 12 An. 222. liable for debt contracted after dis- ' Lawson v. Ripley, 17 La. 238; 283 § 225 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. succession involves with it that of the community, and the administrator may rightfully cause community property to be sold to pay the debts of the succession/ Tlie wife or her representatives can claim nothing until the debts are paid.^ If the community be dissolved by the death of the wife, the survivor is generally alone applied to for the satisfaction of the community debts, and the wife or her representatives, although their distinct interests to the community attaches at the dissolution of the marriage, subject to the right to re- nounce and be exonerated from the payment of the commu- nity debts, have nothing to claim out of the acquests and gains until such debts are paid and liquidated.^ § 225. Creditors and Community Debts — Continued. — It was held in Hawley v. Crescent City Bank* that upon the dissolution of the community by the death of the wife the responsibility of the husband in regard to the community debts is not changed. He is absolutely and personally bound for their payment, and his separate property may be seized and sold for their acquittal. Hence, the community property justly comes under his control until tlie debts are paid. Before their final settlement and discharge the heirs have no absolute right to the property of the community, that can be legally recognized. Their interests in it con- tinue contingent and uncertain until, by the result of the final discharge of all the obligations of tlie community, it is known whether or not there are assets remaining for parti- tion between tlie survivor and tlie heirs of the deceased Bronson v Balch, 19 An. 238; see - Hart v. Foley, i Rob, 378; 2 Kelly V. Robertson, 10 An. 303. An. 30. ' Dunham v. Williams, 32 An. ^ Baird v. Lemee, 23 An. 424; 162; Oriol V. Herndon, 38 An. 59; L,awson v. Ripley, 17 La. 246; Sue. Sue. of Lemee, 40 An 312, 4 So. of McLean, 12 An. 222; Depas v. Rep. 53; Bronson v. Balch, 19 An. Riez, 2 An. 30; Hart v. Foley, i 39; see 12 An 222; Sue. of McLean, Rob. 378; Fortier v. Slidell, 7 Rob. 12 An. 222; Flournoy v. Flournoy, 398. 29 An. 741; Berthelot v. Fitch, 12 ■* 26 An. 230. So. Rep. 625. 284 CHAP. VIII.] CREDITORS AND COMMUNITY DEBTS. § 226 spouse. A judgment creditor of tlie surviving spouse may- seize and sell an asset of the community in satisfaction of his demand, and the heirs of the deceased partner cannot set up their residuary rights by way of injunction, and re- quire the rules of partnership settlement of debts to be applied to the settlement of the debts of the community, since the community resulting from marriage is not a part- nership.^ A creditor of the community cannot sue for its liquidation to establish its claim against the wife and so render her liable for his debt.^ The husband's undivided interest in community property may be seized by his cred- itors after his wife's death.* And, where judgment is ren- dered against the community before the wife's death, com- munity property is properly seizable and sold under it after her death.* § 22(3. Creditors and Community Debts — Continued. — Community property is liable for the husband's ante- nuptial debts,'^ and after wife's death he may use it to pay community debts,*^ but at such time he cannot mortgage community property in favor of one of the creditors of the community,' or conve}'^ by deed more than his undivided half. The surviving wife cannot apply the community assets to her individual claims, to the prejudice of commu- nity creditors.'* The widow is liable for no more than one- half the debts of the community," and this liability is prescribed by ten years.*" She is liable for only one-half the damages recovered for her husband's torts," and not at all for putative damages.*^ The succession of the deceased wife ^ C. C. 2778; Baird v. Lemee, 23 26 An. 230; Rusk v. Warren, 25 An. An. 424. 314- 2 Kelly V. Robertson, 10 An. 303. ' Ledoux v. Breaux, 27 An. 190. 2 Steele v. O'Brien, 34 An. 1249. « Sue. of Dejan, 5 An. 593. * Riches v. Heirs of Pearson, 26 " Riehl v Martin, 29 An. 15. An. 391. '" Ludeling v. Felton, 29 An. 719. '^ Hawley V. Crescent City Bank, " Diemeger v. O'Hern, 29 An. 961. 26 An. 230. '^ Ludeling v. Felton, 29 An. 719. '^ Hawley v. Crescent City Bank, 285 § 227 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VIII. can be made liable for only one-lialf of the community debts.' The community owes no recompense to the hus- band's succession for any diminution in its value resulting from its enjoyment during the marriage. The property brought by him into marriage will belong to his succession in the condition in which it was at the dissolution.^ § 227. Renunciation by Wife and Heirs. — The wife may shield herself from the debts of the communit}^ by renouncing all claim to its assets, and, unless she accept, expressly or tacitly, the community, she stands in relation to its debts very much in the position she would to the debts of any third person, and is not bound for a community mortgage, unless, since her husband's death, she obligated herself in writing to pay it.^ To entitle a widow to the benefit of renunciation, it is required that she have the estate regularly inventoried, and that she should not have taken an active concern in the effects of the community, except such as may be considered conservatory only.* The effect of renunciation is to place her in the same situation as if no communit}^ had ever existed, and everything during mar- riage, in relation to the. sale, or purchase of property, must be viewed as if done by the husband alone.' The surviving wife has thirty days within which she must renounce or accept the succession of her husband. After this delay, she still has the right to renounce, and the right continues until she is compelled by an action to make choice.** The con- sequence of acceptance is to render her liable for one-half of the debts of the community.' She may renounce the com- ' Sue. of Planche, 2 An. 575. McDonough v. Tregre, 7 Mart. N. 2 Depas V. Riez, 2 An. 30; Viaud S. 68. V. Faurie, 11 An. 297. ^ Titche v. Lee, 22 An. 269. See 3 Stauffer v. Packett, 30 An 813; also Monget v. Pate, 3 An. 269; Kelly V. Robertson, 10 An. 303. Audrich v. Lamothe, 12 An. 76; * Lauderdale v. Gardner, 8 Mart. Kelly v. Robertson, 10 An. 306, 716; Flood V. Shamburgh, 3 Mart. " Collins v. Babin, 16 An. 290; Cox N. S. 622. V. Gardner, 8 Mart. 726. ^Johnson v. Pilster, 4 Rob. 71; 286 CHAP. VIII.] RENUNCIATION BY WIFE AND HEIRS. § 227 munity at any time before a final judgment has been pro- nounced against her as a widow in community.^ And where she has caused an inventory to be taken she may still re- nounce so long as creditors have taken no steps to compel her to accept or renounce.^ The heirs of the wife may also renounce tlie community, for the purpose of exonerating themselves from the debts contracted during tlie marriage; but the husband, having been the head thereof, can never do so, either directly or indirectly.^ The surviving wife is presumed to have accepted the community if she does not expressly renounce it.* And if she takes an active concern in the effects of the community she cannot renounce it.^ Acts simply administrative or conservatory, do not come under the denomination of active concern.^ If she accept or inter- meddle, so as to render herself liable for one-half the debts, she may be sued in the ordinary tribunals.^ If the widow has concealed or made away with any of the community property, her renunciation cannot avail her.^ The conver- sion to render the widow liable for the debts, must be fraud- ulent and with intent of appropriation to her own use, and done before renunciation.^ A widow, who by a series of acts extending through years, has tacitly accepted the com- munity, cannot afterwards renounce it.^" If she sell any part of the community proj^erty she thereby accepts the commu- nity;" as she does by mortgaging her undivided half of a ^ Ivudeling v. Felton, 28 An. 849; ^ Collins v. Babin, 16 An. 290; Cockburn v. Wilson, 20 An. 39; C. Ludeling v. Felton, 29 An. 719; C. 2386. Lynch v. Benton, 12 Rob. 113. ^ Sue. of Richardson, 14 An. i, « Collins v. Babin, supra; Cox v. but see contra where the making of Hvmter, 10 La. 427. an inventory has been omitted; ' Cox v. Hunter, 10 La. 427. Chapman v. Kimball, 6 Rob. 94. ^ Cockburn v. Wilson, 20 An. 39; ^ »Suc. of Baum, 11 Rob. 314; Lynch v. Benton, 12 Rob. 113; Lu- Squire v. Belden, 2 La. 268; German deling v. Felton, 28 An. 849. V. Gay, 9 La 580. ' Bonner v. Gill, 5 An. 629. ^Edwards v. Ricks, 30 An. 928; '« Wisdom v. Buckner, 31 An. 52; Monget V. Pate, 3 An. 269; P~lood v. Cestac v. Florence, 31 An. 493, Shamburgh, 3 Mart. N. S. 622; Sue. " Ludeling v. Felton, 29 An. 719. of Blanche, 2 An. 575. 287 § 228 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VIII. certain piece of community property.^ Where she stipulates for an extension of a debt and makes payments thereon, she is presumed to have accepted the community beyond the power of renunciation.^ When sued as a widow in commu- nity the general denial admits her acceptance.^ § 228. In Texas. Descent and Distribution — Rights and Interests of Spouses and Heirs. — On the death of either spouse one-half of the community property, by opera- tion of law, vests in the decedent's heirs, and the other half remains in the survivor, subject, however, to the payment of the community debts,* and in default of such lieirs as the statute recognizes the entire estate passes to the survivor likewise charged with the debts.*^ The only heirs to com- munity property recognized by the statute of 1840* were the "child or children" of the deceased spouse, and these words have been construed to be taken in their ordinary sense, and not to be synonymous with "deticendents so as to include grandchildren." The statute does not apply to lineal descendents other than the children of the ancestor.' The amendment of Article 1653 of the Revised Statutes, passed March 30th, 1887, has changed the rule of descent so 1 Gestae v. Florence, 31 An. 493; Tex. 415; Van Sickle v. Cattell, 75 Hickman v. Thompson, 24 An. 264. Tex 409; Harris v. Seinsheimer, 67 - Saloy V. Chexnaidre, 14 An. 567. Tex. 356, 3 S. W. 307. " Edwards v. Ricks, 30 An. 92S. Upon the death of a married mer- * Jones V. Jones, 15 Tex. 582; Rob- chant his stock in trade being com- inson v. McDonald, 11 Tex. 385; munity property descends to his Duncan v. Rawls, 16 Tex. 478; wife and children charged with the Stramlerv. Coe, 15 Tex. 211; Primm community debts. Cleveland v. V. Barton, i8 Tex. 227; Wilkinson Harding, 67 Tex 96, 3 S. W. 537. V. Wilkinson, 20 Tex. 238; Thomp- ^ Eckford v. Knox, 67 Tex. 202; son V. Cragg, 24 Tex. 582; Mitchell Bell v. Schwarz, 37 Tex. 572; Wall V. Marr, 26 Tex. 329; Burleson v. v. Clarke, 19 Tex 321. Burleson, 28 Tex, 418; Walker v. Agreements not countenanced al- Howard, 34 Tex. 478; Magee v. tering legal order of descent. Groes- Rice, 37 Tex. 500; Bell v. Schwarz, beck v. Groesbeck, 78 Tex. 664, 14 37 Tex. 572; Johnson v. Harrison, S. W. 792. 48Tex. 262; Veramendi V. Hutchins, "^ Art 1653. 48 Tex. 550; Tieman v. Robson, 52 ' " Grandchildren " are not within 288 CHAP. VIII.] DESCENT AND DISTRIBUTION. § 228 that "grandchildren" may now inherit.^ The only class of persons who primarily inherit the community property from the deceased spouse are his children, and if he or she leave children the survivor inherits nothing from the deceased marital partner.'^ The heirs of the deceased member take title to an undivided half interest in the lands owned by the community at the time of its dissolution.'' The interests of the heirs and of the survivor is the same, each one-half of the community estate remaining over after payment of the community debts.* The legal title is in the survivor and the heirs, and they hold their interests not in severalty, but as tenants in common with the survivor.' "The fact that the statutes of descent. Burgess v. Where the wife died previous to Hargroove, 64 Tex. 117; Cartwright the issuance of the patent for pub- V. Moore, 66 Tex. 55, i S. W. 263; lie lands, which would fall into Stevens v. Shaw, 68 Tex. 261; community, she took an estate of Pegues V. Hayden, 76 Tex. 94, 13 S. inheritance in the lands, notwith- W. 171. standing the patent did not issue At the civil law and under the until after her death. Wright v. code of Ivouisiana the term "chil- McGinty, 37 Tex. 733; Wilkinson dren " was synonymous with "de- v. Wilkinson, 20 Tex 237. scendants," and was intended to The interest of the estate of a de- include all descendants in a direct ceased wife in the community lands line (2 Domats' Civ. L,. Art. 2393; is equal to that of the husband. Civ. Code La. Art. 3522, note 14), Caruth v. Grigsby, 57 Tex. 265. but under the Texas statute of 1840 '^ Eckford v. Knox, 67 Tex 202; the words "child or children" are Walker v. Young, 37 Tex. 519. not equivalent to "descendants." ^ Wilson v. Helms, 59 Tex. 683 The act of April 27th, 1850 (since The community interest of the repealed), in California, used the deceased spouse descends to all the word "descendants." children, whether by that or a An adopted heir stands on the former marriage. Morrill v. Hop- same plane with children born in kins, 36 Tex. 686. lawful wedlock, though restricted The statute of descent and distri- by the statute, as to the proportion bution of real property, other than of property he may take, provided homestead, makes no distinction a child survive, begotten in lawful between adult and minor heirs, wedlock. Eckfordv. Knox, 67 Tex. Ashe v. Yungst, 65 Tex. 639. 202. ^Johnson v. Harrison, 48 Tex. 1 McKinney v. Moore, 73 Tex. 257, 268. 471, II S. W. 493; McKenzie v. ^ Wright v. McGinty, 37 Tex. 734; Ross, 74 Tex. 600, 12 S. W. 317. Caruth v. Grigsby, 57 Tex. 259- 19 289 § 229 BALLINGER ON COMMUNITY PROPERTY. [ciIAP. VIII. advancements may have been made to each of the children during the life of the mother, out of community property, would not confer upon tlie father any interest in the share of the community estate wliich vested in the children on the death of the mother. In so far as he gave of his own estate in community property, the children cannot be called upon to compensate him therefor by surrendering to hira that which they inherited from the mother upon her death; and in so far as property which may have been advanced was the community estate of the mother, her children take that purely as an advancement without liability to account, ex- cept as between themselves."^ The husband and wife can- not alter the legal order of descent in respect to themselves or their children by a contract made in contemplation of marriage, and a fortiori, cannot do so by a contract made during marriage. Such a disposition of the community is in conflict with and subversive of the law regulating marital rights under the statute.^ § 229. Community Homestead — Descent and Distribu- tion of . — The homestead being community property, one- half vests in the surviving spouse and the other half in the Guilliam v. Null, 58 Tex. 304; Akin Adair v. Hare, 73 Tex. 276, 11 S. W. V. Jefferson, 65 Tex. 137; Broad v. 320. Broad, 40 Cal. 496; Broad v. Mur- - Pasch. Dig. Arts. 4641-2; Rev. ray, 44 Cal. 228; Good v. Coombs, Stat. 2847; Cox v. Miller, 54 Tex. 28 Tex. 35; Hickman v. Thompson, 25; Groesbeck v. Groesbeck, 78 Tex. 24 An. 264; Dickson v. Dickson, 36 664 An. 453. The agreement was intended to The heirs cannot, at common law, change the law of descent, so as to compel an accounting by the sur- deprive the wife, at the death of the vivor for the rents and profits of husband, of her distributive share lands held by them as tenants in in his property under the law. common with the survivor. It is so Groesbeck v. Groesbeck, 78 Tex. imder community system until suit 669. for partition is instituted. Aikin v. A renunciation by the wife of her Jefferson, 65 Tex. 137; Rowland v. community interests will not be sus- Murphy, 66 Tex. 534, i S. W. 658; tained when inequitable and made Clift V. Clift, 72 Tex. 144, 10 S. W. without consideration. A contract , g of this nature is totally void. Prot- 1 Wilson V. Helms, 59 Tex. 681-2; zel v. Schroeder, 19 S. W. 292. 290 CHAP. VIII.] COMMUNITY HOMESTEAD. § 229 children of the marriage/ and remains subject to the rights of the surviving partner.'^ "The children have no interest in the homestead, as such, by virtue of the homestead rights of the deceased parent. If it was community property of their parents they inherit the share of the deceased parent, just as they inherit other community property."^ "The only difference which exists in regard to tiie right of minor children to take and hold the interest of a deceased parent in community property, which is or is not homestead, exists in reference to creditors solely."* AVhile there are minor children of a marriage and the homestead is community property, the survivor is entitled to retahi the homestead.^ The widow of the second marriage has no homestead rights in the undivided interest of the children of the first marriage inherited from their mother. The heirs may have 1 Hair v. Wood, 58 Tex. 79; the wife and child, and the adminis- Hanks v. Crosby, 64 Tex. 483; see trator has no right or control over Clements v. Lacy, 51 Tex. 150. it as a part of the assets held by him On the death of the wife her in- for purposes of administration, terest in the homestead descends Hanks v. Crosby, 64 Tex. 483; cit- and vests in her heirs. Bell v. ing Sossaman v. Powell, 21 Tex. Schwarz, 56 Tex. 355. 664; O'Docherty v. McGlovin, 25 Adults do not come within the Tex. 72; Hoffman v. Hoffman, 14 S. statute granting homesteads to \V. 915; Lacy v. Lockett, 82 Tex. widow and children. Horn v. Ar- 190, 17 S. W. 916. nold, 52 Tex. 161; Ashe v. Yungst, -* Johnson v. Ta}-lor, 43 Tex. 122; 65 Tex. 639; Givins v. Hudson, 64 Grothaus v. De Lopez, 57 Tex. 670. Tex. 471. ''Grothaus v. De Lopez, 57 Tex. - Bell V. Schwarz, 37 Tex. 574. 670; Tadlock v. Eccles, 20 Tex. 782; But where the homestead is aban- Brewer v. Wall, 23 Tex. 586; Shan- doned the heirs are entitled to par- non v. Gray, 59 Tex. 252; Ashe v. tition. Bell v. Schwarz, 37 Tex. Yungst, 65 Tex. 636. 574. * Walker v. Young, 37 Tex. 519; The survivor has the right, which Adair v. Hare, 11 S. W. 320. the heirs cannot defeat, to change The husband may sell or encum- the homestead of the family. Mor- ber his community homestead for rill V. Hopkins, 36 Tex. 686. the payment of community debts. On the death of the husband the Watts v. Miller, 76 Tex. 13 ; aflfirm- legal title to the homestead vests in ing 65 Tex. 631; 71 Tex. 567. 291 § 230 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VIII, their interest in the property set off in severalty, regardless of the widow's homestead claim. ^ The fee to community lands inherited descends to the children of the first marriage, subject to the homestead rights of the widow of the second marriage in the interest owned by the husband.^ The second wife, during her husband's lifetime, is protected in his home- stead rights in the old homestead, but those rights, being personal to him, terminate at his death.^ §230. Survivor's Rights — Pov^ers and Duties of. — The surviving spouse, if the husband is already possessed of the effects of the community at the time of its dissolution, and if dissolution is effected by the death of the husband, the wife assumes the duties and responsibilities of surviving partner, except that she assumes no personal liability for the debts of the community.* The powers and duties imposed upon the survivor of the marital partnership are quite anal- ogous to those accompanying surviving partners of com- mercial partnerships.^ In determining to what extent the survivor in community may make use of its assets to dis- charge the community debts, as also the right of creditors to enforce payment of their demands out of sucli assets, the ■courts of Texas have assimilated the marital relation in many respects to that of an ordinary partnership." Upon the death of the wife the husband occupies the relation of a surviving partner in a business partnership. He is liable ■absolutely for all the debts of the community. The case of 1 Pressley's Heirs v. Robinson, 57 concerned is restricted to the com- Tex. 459; Clements V. Lacy, 51 Tex munity property. Davis v. McCart- 167; Guilliam v. Null, 58 Tex. 305; ney, 64 Tex. 587; see Brackett v. see Hoffman v. Hoffman, 14 S. W. Devine, 25 Tex. Sup. 194; Wheeler ^15. V. Selvidge, 30 Tex. 407; Leather- " Guilliam v. Null, 58 Tex. 298. wood v. Arnold, 66 Tex. 414, i S. 3 Pressley's Heirs v. Robinson, 57 W. 173; Woodley v. Adams, 55 Tex. Tex. 454. 526. * The surviving wife is not abso- ^ Sanger v. Moody, 60 Tex. 100; lutely liable for the community Hill v. Osborne, 60 Tex. 393. debts. The liability so far as she is ^ Carter v. Conner, 60 Tex. 55-6. 292 CHAP. VIII.] survivor's RIGHTS. § 230 the wife on his death is different.^ She, it is true, is a sur- viving partner, but as a general rule is personally liable for none of the debts of the community.^ Qualified powers of management and disposition of the community estate are possessed by the survivor, and take effect immediately upon the dissolution of tlie community. But tiie absolute power of management and disposition is acquired only when the survivor qualifies as provided by the statute,'* and by such qualification the survivor is vested with the same power and discretion in the execution of the trust assumed thereby as the husband had during life to manage, control and dispose of the common property as the head of the connubial firm.* On the death of eitiier spouse, the decedent's estate becomes entitled to one-half of the com- munity property, but tlie heirs can claim and finalh' hold only sucli portion as may remain after the payment of all the just debts and demands against the community.^ This is in accordance with tlie Spanish law.*^ The debts and ' Moody V. Smoot, 78 Tex. 172, 14 tracts a second marriage. Auerbach S. W. 285; see Cullers v. May, 81 v Wylie, 84 Tex 615, 19 vS. W. 856. Tex. no, 16 S. W. S13. « Jones v. Jones, 15 Tex. 148; The wife's administrator has no see McKinney v. Munn, 82 Tex 44, right to control the property even 17 S. \V. 518. where the husband has abandoned The heirs ma}- recover from execu- her. Cullers v. May, supra. tor out of his communit}' interest -Moody V. Smoot, 78 Tex. 123; for misappropriations of community see Aiken v. Jefferson, 65 Tex. 145; property. Redding v. Boyd, 64 Leatherwood V. Arnold, 66 Tex. 414, Tex. 498; see Poe v. Brownrigg, 55 I S. W. 173. Tex. 133. ^ Brown V. Seaman, 65 Tex. 629; "^ Febrero declares, that there nmst see Huppman v. Schmidt, 65 Tex. be deducted all legitimate debts, 583; Kirkland V. Little, 41 Tex. 456. which the husband, or wife, with * Leatherwood v. Arnold, 66 Tex. his permission, or both jointly, may 416-417, I S. W. 173; Withrow v. have contracted on account of the Adams, 23 S. \V. 439. conjugal partnership, and which Power of widow to convey; see must be paid out of the ganancial Stone V. Ellis, 69 Tex. 325, 7 S. W. property, and that the residue is 349; Garrett v. Jobe, 70 Tex. 696, 8 only divisible, and is what is called S. W. 505. the inheritance. Febrero N o v i s- Her power ceases when she con- simo, vol. 6, p. 124; L. 14, tit. 20, 293 § 231 BALLIKGER ON COMMUNITY PROPERTY. [cHAP. VIII. obligations of the community are a charge upon the com- mon property', which must be satisfied, and the residue alone is subject to distribution between the survivor and the heirs. Sul)ject to this charge the remainder vests by the statute in the survivor and the heirs/ It is the duty of the survivor to wind up the affairs of the cominunit}' and liquidate its debts. The right of the survivor to make sales of commu- nity property would seem to be a necessary consequence of the obligation of such survivor to discharge the debts against the partnership, because it is usually by such means only that those debts can be paid." It has been uniformly held that the survivor of the community has the power to sell community property to pay the debts of the community, or to reimburse himself for sums paid by him on such debts out of his or her separate estate. He has the right of ex- clusive possession, and the duty of using the partnership property in discharging debts imposed upon him; if he ex- ercises the right he assumes the duties of a trustee, and must account for the rents and profits.^ § 231. Survivor's Rights — Powers and Duties of — Continued. — If there be community debts, the survivor may appropriate community property to their payment; and lib. 3, Fviero Real; L. 207, del Es- Hutcliiiis, 48 Tex. 531; Wilson v. tilo; 17 La. 238; i Rob. 378; 7 Rob Helms, 59 Tex. 680; Sanger v. 387; Jones V. Jones, 15 Tex. 148. Mood}^ 60 Tex. 97; Davis v. McCart- ^ Johnson v. Harrison, 48 Tex. ne}-, 64 Tex. 584; Leatlierwood v. 268; see Jones V. Jones, 15 Tex. 143; Arnold, 66 Tex. 416; Moody v. Hill V. O'Brien, 60 Tex. 392; Wil- Smoot, 78 Tex. 122. son V. Helms, 59 Tex. 680 A note executed by the husband ^ Good V. Coombs, 28 Tex. 50; to the wife for her separate funds see Allen v. Bright, 23 vS. W. 712. loaned him is a binding charge ^ Ashe V. Yungst, 65 Tex. 636; upon both the separate estate of the Jones V. Jones, 15 Tex. 143; Primni husband and the community estate, V. Barton, 18 Tex. 222; Good v. whether the debt was made for the Coombs, 28 Tex. 51; Walker v. benefit of the community or not. Howard, 34 Tex. 478; Dawson v. Hall v. Hall, 52 Tex. 294, 300; Aiken Holt, 44 Tex. 174; Werner v. Sten- v. Jefferson, 65 Tex. 137; Ladd v. zel, 48 Tex. 488; Johnson v. Harri- Farrar, 17 S. W. 55; McKinney v. son 4.8 Tex. 257; Veramendi v. Munn, 82 Tex. 44, 17 S. W. 516. 294 CHAP. VIII.] survivor's RIGHTS. § 231 his power to wind up the eoinmunity affairs is so far recog- nized that sales fairly made by him for that purpose will not be set aside. And the community propert}- of an estate in administration is subject to sale for the separate debts of the husband. His power to sell is dependent on the exist- ence of some claim against the communit}', and whoever purchases from him must see to it that the facts exist which authorize the sale.^ Where sales are made by the survivor, without qualifying under the statute, the purchaser is not bound in his own protection to see that the purchase money is applied to the payment of community debts. It is essen- tial, however, to his protection that the consideration be not grossly inadequate; that there be no collusion or fraud to which he is a part}^, and that he have no knowledge of any intention to misapply the proceeds.^ Where community debts exist, the survivor has the same power to sell or en- cumber the community homestead to liquidate them that he has of any other community property, and he may do this without qualifying under the statute.^ And lie may do ^ Jolinsoii V. Harrison, 48 Tex. 60 Tex. 932; see Aiken v. Jefferson, 268; Jones V. Jones, 15 Tex. 143; 65 Tex. 137; Harris v. Seinsheimer, Stramler V. Coe, 15 Tex. 211; Primm 67 Tex. 656. 3 S. W. 307. V. Barton, iS Tex. 227; Burleson v. -Sanger v. Moody, 60 Tex. 96; Burleson, 28 Tex. 418; Contra Nix v. Mayer, 2 S. W. 819; see Walker v. Howard, 34 Tex. 478; French v. Strumberg, 52 Tex. 109-10; Magee V. Rice, 37 Tex. 500. Dawson v. Holt, 44 Tex. 174; San- Upon the death of one of the burn v. Schuler, 22 S. W. 119; (In- spouses, the community estate passes nocent purchaser from wfe not put to the survivor charged with the upon notice.) The widow had no community debts, and is liable to be right, however, to give it away, sold by such survivor, or under ex- Sanger v. Moody, supra. ecution to satisfy such debts. The ^ Ashe v. Yungst, 65 Tex. 636; community property is held by the Johnson v. Harrison, 48 Tex. 257; survivor to pay such debts. The Constitution, Art. 16, | 52; see deceased's portion descends to the Kirkland v. Little, 41 Tex. 456; children, subject to the right of the Magee v. Rice, 37 Tex. 483; Fagan survivor to use it in payment of v. McWhirter, 71 Tex. 567, 9 S. W. such charges, and the right of cred- 677; Watts v. Miller, 76 Tex. 13, 13 itors to enforce against it their com- S. W. 16. munity demands. Hill. v. Osborne, The fact that the heirs inherit the 295 § 231 BALLING ER ON COMMUNITY PROPERTY, [CHAP. VIII. SO although there be minor children and the estate insolv- ent.^ The inhibition to sell the homestead only applies to married men.^ The survivor has the power to administer the community for the purpose of paying the community debts, without hindrance on the part of the heirs, although they may prevent by injunction the survivor from applying the community property to other uses than liquidating the debts.^ If there are no debts, it is the survivor's duty to take care of the community stock for the owners, and while doing this, if he makes only such use of them as would not damage their value, he is net liable to the owners in com- mon with him. A reasonable use is incident to his right of possession. In some cases, however, he may be held liable for their use, as alter the institution of a suit for partition.* share of their deceased parent can- community estate upon a judgment not act as a limitation upon the recovered for a community debt power of a surviving parent to alien- against the survivor, whether the ate his or her interest in such prop- execution be so directed or not. erty as may have been homestead, Hollingsworth v. Davis, 62 Tex. 438; any more than it can so operate in citing Carter v. Conner, 60 Tex. 52. regard to property not homestead. Suits against the sursdvor must be Grothaus v. De Lopez, 57 Tex. 670. waged and executed the same as in But the survivor cannot sell rnore cases of ordinary partnerships, than his or her half of the commu- Carter v. Conner, 60 Tex 56-7, and nity homestead, unless there be see cases cited. community debts to liquidate. On granting letters to third party Walker V. Young, 37 Tex. 519. wife's control ceases. Hollings- ' Fagan v. McWhirter, 71 Tex. worth v. Davis, 62 Tex. 438, supra. 567; Watts V. Miller, 76 Tex. 15; see ^ Aiken v. Jefferson, 65 Tex. 137. Davis V. McCartney, 64 Tex. 584. While occupying lands with his ^ Lacy V. Rollins, 74 Tex. 566; co-tenants the survivor cannot be Watts V. Miller, 76 Tex. 15; Smith compelled to account for the profits V. Van Hutton, 75 Tex. 625. unless made their bailiff. Aiken v. ^ Moody V. Smoot, 78 Tex. 123. Jefferson, supra. The wife as survivor, and without The surviving husband is not lia- qualifying under the statute can ble to the children for and by rea- bring an action in her own name to son of his continued occupancy of preserve a judgment from lapsing, the entire community homestead, recovered during the lifetime of her No partition having been demanded deceased husband. Walker v. Ab- thereof. Pressley's Heirs v, Robin- ercrombie, 61 Tex. 69. son, 57 Tex. 454. Execution may be levied on the 296 CHAP. VIII.] SURVIVOR QUALIFYING UNDER STATUTE. § 232" Unless there be community debts, the survivor is inhibited from selling more than his undivided interest in any com- munity asset. He has no right to sell the interest descend- ing to the heirs of the deceased partner, except to pay debts,^ and such debts will not be presumed.^ After a great lapse of time a sale of community property will be presumed as made to pay community debts.^ Being tenants in common, the law is settled that the survivor cannot convey a distinct portion of the estate by metes and bounds so as to prejudice his co-tenant.* The survivor may, however, alienate his or her portion of the community estate, without hindrance, when done in good faith and with no intent to defraud creditors or heirs of the deceased.'^ As against purchasers, after a great lapse of time the authority to sell will be pre- sumed;'' in other words, the sale will be presumed to have been made for the purpose of satisfying community debts.^ As against creditors, after a great lapse of time the law will presume that the community debts have been paid.^ The community estate is held liable for the separate debts of the husband, both nuptial and antenuptial, and for the antenuptial debts of the wife.® It is also liable for neces- saries furnished the wife and children.^" § 232. Survivor Qualifying Under the Statute. — The right of the survivor to the absolute management of the ^ Wright V. McGinty, 37 Tex. 734. '' Good v. Coombs, 28 Tex. 50. - Wright V. McGinty, 37 Tex. 734. « Hill v. Parker, 36 Tex. 650; ^ Hensel v. Kegans, 79 Tex. 349, Walker v. Howard, 34 Tex. 478. 15 S. W. 275; Moody V. Butler, 63 " Veramendi v. Hutchins, 56 Tex. Tex. 210; Simpson v. Brotherton, 420-1; 25 S. W. 145; 22 S. W. 400; 62 Tex. 170; see Williams v, Hardie, 15 S. W. 275; see Moody v. Butler, 22 S. W. 399, reversing same, 21 S. 63 Tex. 210. W. 267; Brown v. Elmendorf, 25 S. * See Lee v. Henderson, 75 Tex. W. 145. 190. * Good V. Coombs, 28 Tex. 35; 17 ' Moody v. Smoot, 78 Tex. 124. Tex. 417; 22 Tex. 396; 24 Tex. 376; "'Moody v. vSmoot, 78 Tex. 123; see Guilliam v. Null, 58 Tex. 298; see Rev. Stat. tit. 37, ch. 28, Art. see citations in brief, Dawson v. 2164, ei set^. Holt, 44 Tex. 175. Unless a bond with suflficient sure- 297 § 232 BALLIXGER ON COMMUNITY PEOPERTY. [CHAP. VIII. community is secured only by bis qualifying under the statute. Unless tbis is done tbe proj^erty is open to admin- istration as in otber cases. And tbe survivor is limited in bis power of management of tbe estate to merel}^ winding up its affairs and liquidating its debts, as in case of survivors in ordinary business partnersbip. In LeatJterwood v. Arnold^ tbe court, in speaking tbrougb Robertson, Justice, in clear and concise terms outlined tbe powers and duties of survivor under tbe statute: "By qualifying under tbe statute tbe survivor acquires over tbe wbole community estate tbe same rigbt of management, control and disposition possessed by tbe managing partner during tbe life of tbe partnersbip. He is a trustee of a unique cbaracter, being tiie owner in bis own rigbt of one-balf tbe trust estate. How tbe trust sball be executed tbe law bas not attempted to direct. His duty is defined in tbe conditions of bis bond, to pay tbe debts and distribute tbe remainder, and bere arises tbe difference be- tween tbe survivor as trustee and otber trustees. Tbe object to be accomplisbed is fixed, but tbe means of accomplisb- ment are as varied as tbe circumstances and discretions of men. He may sell all tbe property, pa}^ all tbe debts and distribute tbe remainder in mone3^ He may sell only enougb to pay tbe debts, and divide wbat is left in kind. He may force every creditor, or none, or any number of tbem to resort to tbeir legal remedies. He may use bis own means in paying tbe debts, and reimburse bimself by an appropriation or sale of tbe assets of tbe estate. It results, necessarily, from bis unbridled and unlimited power, tbat be cannot be required to account as otber trustees. Trustees must generally account for every item of tbe trust estate. ties is filed, conditioned as provided plied to a surviving wife, but not as by the statute the property is open applied to a surviving husband, to administration as in other cases. Moody v. Smoot, 78 Tex. 123; see Brown v. Seaman, 65 Tex. 629; see Pressler v. Wilke, 84 Tex. 344, 19 Huppman v. Schmidt, 65 Tex. 583; S. W. 436. Kirkland v. Little, 41 Tex. 456. • 66 Tex. 416-17. This view is sound only as ap- 298 CHAP. VIII.] SUKVIVOR QUALIFYING UNDER STATUTK. § 233 But tlie responsibility of tbo survivor can only be fixed by aggregates. Inquiring into tbe details of his administration is inconsistent witb tbe breath of bis power and discretion. He is debited with tbe value of tbe estate and its revenue/ and credited witb disbursements, and must account to cred- itors or distributees for tbe remainder. Tbe surviving bus- band is personally liable for community debts. If he has extinguished tbe community interest in a given item of community property, it is still subject to community debts, because tbe community debt is also his individual debt. Tbe surviving wife does not owe the community debts. When she lifts tbe comnninity charge upon tbe property in her bands, tbe property is hers as unqualifiedly as if she had bought it witb her separate means at an execution sale of it for tbe payment of a community debt. While she had no power over tbe community during her husband's life, and is not personally liable for the debts, yet, when tbe wife sur- vives and c{ualifies under the statute, she is vested with the same power and discretion in execution of the trust assumed that tbe husband had during life to manage, control and dispose of tbe community as the head of the connubial firm."' § 233. Survivor Qualifying Under the Statute — Con- tinued. — The power of tbe survivor to make sales of community property to pay the debts or to reimburse him- self results from the nature of the community estate, and was not withdrawn by tbe act of August 26th, 1856, which, ' Akin V. Jefferson, 65 Tex. 137. S. W. 439; see Pasch. Dig. Art. 4652, " No distinction has ever been Acts 1870; 2 Pasch. Dig. Art. 5497; made as to the powers of the sur- Tucker v. Brackett, 28 Tex. 337; vivors, when qualified under the Davis v. McCartney, 64 Tex. 584; statute, whether the siirvivor be Cordier v. Cage, 44 Tex. 534; Green husband or wife. They have always v. Grissam, 53 Tex. 434; Green v. been recognized as being equal in Raymond, 58 Tex. 80; Johnson v. cases where the statute has been Taylor, 43 Tex. 121. followed and where it has not. On death of husband surviATUg Leatherwood V. Arnold, 66 Tex. 417, wife not personally liable. Davis I S. W. 173; Wi throw v. Adams, 23 v. McCartney, 64 Tex. 584. 299 § 233 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. when the survivor qualified under it, gave liim otlier and more enlarged powers.^ This act was intended as a privi- lege and not as a limitation upon the rights of the survivor. If he fail to avail himself of it he may be held to a stricter accountability than that imposed by the statute, in the settlement with those jointly interested with liim in the property.^ The act was intended to enlarge his powers.^ It was said in Sanger v. Moody^ that the survivor, without ad- ministration upon the estate of the deceased member, in any of the modes expressly provided by statute, has power as survivor to sell the community property for the purpose of paying debts which are a charge upon it, and by law such property is charged with the payment of debts contracted during the marriage.^ The act itself seems to recognize in the survivor such a power, and that its exercise will not be dis- turbed upon failure to comply with the act, unless upon complaint b}^ some one having an interest in the estate.** The statute confers on the survivor the power to sell the community estate after the filing of the inventory, and must be strictly construed.^ After the inventory is regularly filed, if it appear that the survivor is about to waste the property, the heirs may apply to the court to have their rights pro- 1 Ashe V. Yungst, 65 Tex. 636; Dawson v. Holt, zJ4 Tex. 178; Walker Johnson v. Taylor, 43 Tex. 122; v. Howard, 34 Tex. 47S; (vested Dawson v. Holt, 44 Tex 174; Cor- rights) Johnson v. Biirford, 39 Tex. dier v. Cage, 44 Tex. 535; Watkins 242. V. Hall, 57 Tex. 2; Shannon v. Gray, * 60 Tex. 98. 59 Tex. 252; Moody v. Smoot, 78 ^ Pasch. Dig. 4646. Tex. 123. " Pasch. Dig 4649, 4650. The svirvivor may make sales with- Lumpkin v. Murrell, 46 Tex. 58. out qualifying under the statute. ' Grifiin v. Ford, 60 Tex. 501; as Sanger V. Moody, 60 Tex. 97 ; Leath- to irregularities in inventory and erwood v. Arnold, 66 Tex. 416. effect of, see Cordier v. Cage, 44 The power is legalized when the Tex. 532; 41 Tex. 456, 23 S. W. 439. survivor qualifies under the statute. A sale after qiialifying although Davis V. McCartney, 64 Tex. 584; agreed iipon before will not vitiate Leatherwood v. Arnold, supra. the conveyance. Ford v. Cowan, ■ Ivumpkin v. Murrell, 46 Tex. 52. 64 Tex. 130-1. ^ Sanger v. Moody, 60 Tex. 98; The surviving husband has the Werner v. Stenzel, 48 Tex. 489; right to sell the community prop- 300 CHAP. VIII.] SURVIVOR QUALIFYING UNDER STATUTE. § 233 tected.^ Their failure to do this does not work a forfeiture of their rights in property which descended to them, and which had been illegally sold by the survivor before the inventory was filed.^ The wife, on filing an inventory of erty to pay community debts, even though the property sell for more than enough for that purpose. The heirs are secured in their rights in the excess by the survivor's bond. Watkins v. Hall, 57 Tex. i. The fact that the surviving hlis- band parted with his individual in- terest in community property will not impair his right, after qualifying as survivor, to administer the resi- due of the community property. Watkins v. Hall, supra. The surviving wife or husband becomes under the statute a trustee; if he or she does not assume that character by compliance with the statute, creditors of the heirs of the deceased spouse may, upon adminis- tration, or the heirs may share the occupancy of the lands or sue for partition. Aikin v. Jefferson, 65 Tex. 138; Davis V. McCartney, 64 Tex. 587-8. A verbal partition between the heirs made before the survivor quali- fies confers no right on the heirs to any portion so partitioned, nor does it authorize the withdrawal of the property from administration by the sur\dvor. Watkins v. Hall, 57 Tex. i. The survi\'ing wife, who takes charge of the conmiunit}' property under the statute, occupies a rela- tion similar to that of an independ- ent executor (McLaner v. Beh-in, 47 Tex. 493), and her allowance and approval of a claim against the estate gives it no right to payment superior to other claims of the same class. But where a claim is not pre- sented and the wife does not know of its existence, she may exhaust the estate without liability on her bond. It is otherwise if she knew of its existence. Kvans v. Taylor, 60 Tex. 422; Green v. Raymond, 58 Tex. 80. She may convey the whole com- munity estate upon qualifying. Culp v. Jones, 24 S. W. 1123. The husband, on qualifying, may sell the community homestead, even though there be no debts, and although there be minor children and heirs of the deceased wife. Dawson v. Holt, 44 Tex. 174; Gro- thaws V. DeLopez, 57 Tex. 672; Johnson v. Taylor, 43 Tex. 122. No right existed in a creditor, un- der the constitution and laws in force in 1876, to subject the home- stead of a deceased party to the pay- ment of his debts if a widow or minor child survived. The credit- ors could fix a charge on the home- stead only when the widow and minor child cease to use it as such, and the right of all the heirs to have it partitioned accrues. The widow by a sale renounces her right of oc- cupancy, and the property loses its homestead character. Davis v. Mc- Cartney, 64 Tex. 584. The homestead is withdrawn as a part of the assets of the community estate. 64 Tex. 483; 64 Tex. 585; 21 Tex. 666; 25 Tex. 72. ' Pasch. Dig. 4652. -Griffin V. Ford, 60 Tex. 591; see Ford V. Cowan, 64 Tex. 129 (dis- tinguished). The remedy of the distributees is cumulative; the survivor must ac- 301 § 234 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. community property, renders herself liable to suits for com- munity debts. In such a case she becomes the survivin^^ part- ner with the same powers and capacities.^ The powers of the wife to administer the community estate ceases with her widowhood.^ The survivor is presumed to have qualified unless the contrary be shown.^ The power possessed by a surviving husband or wife who qualifies to administer a community estate is much broader than that possessed by an ordinary administrator, and what such a survivor ma}'- legally do in the exercise of that power will bind the estate.* § 234. Testamentary Disposition. — Neither the husband nor the wife can make a testamentary disposition of more than his or her half of the community property, and any attempt to dispose of a greater share b}^ will is of no effect, unless the survivor ratify the same by electing to take under the will. In which case no community rights, as such, can be claimed.'^ The intent of the husband to will the interest count for their interest in all the the sum realized, James v. Turner, communit}^ property, whether in- 78 Tex. 241. ventoried or not, but at its real - Davis v. McCartney, 64 Tex, 584; value, and necessarily appraised see Nichols v. Oliver, 64 Tex. 647; value. The inventory and appraise- 23 S. W. 439; 19 S. W. 856; dissent- ment are for the protection of the ing opinion, 20 S. W. 776. heirs and creditors, but if they are ^ Womackv. Shellon, 31 Tex. 592. not full and true they do not restrict The heirs are not concluded by the liability of the survivor. Hupp- an order requiring the administrator man v. Schmidt, 65 Tex. 587; Leath- to sell property as community to erwood v. Arnold, 66 Tex. 416. pay debts in a contest between heirs 1 Tucker v. Brackett, 28 Tex. 337; and creditors as to whether the Moke V. Brackett, 28 Tex. 443. property is community property or On granting letters of administra- separate property of wife. Groes- tion to a third party, the wife's con- beck v. Groesbeck, 78 Tex. 668; trol over the community estate Bradley v. Love, 60 Tex. 472; Mayo ceases. Hollingsworth v. Davis, 62 v. Tuder, 74 Tex. 471; Ford v. Tex. 438. Cowan, 64 Tex. 129; Griffin v. Ford, The widow qualifying as survivor, 60 Tex. 591, distinguished, in administering the community ^ James v. Turner, 78 Tex. 244. estate, has power to contract with '' Testamentary Disposition. — See counsel for the prosecution of Moss v. Helsley, 60 Tex. 426; Mayo claims, giving stipulated share of v. Tuder's Heirs, 74 Tex. 471; Box 302 CHAP. VIII.] TESTAMENTARY DISPOSITION. § 234 of his wife in community property must be clear and explicit.^ The disposition of the community interest of either spouse by will passes to the devisee such interest, charged with the payment of the community debts.^ V. Word, 65 Tex. 159; Weir v. Smith, 62 Tex. I, 19 S. W. 10S3; Conn v. Davis, 33 Tex. 203; Well v. Petree, 39 Tex. 428; Carroll v. Carroll, 20 Tex. 731; Yancy v. Batte, 48 Tex. 57; Walker v. Howard, 34 Tex. 510; Woodly V. Adams, 55 Tex. 535. ' Carroll v. Carroll, 20 Tex. 743; Moss V. Helsley, 60 Tex. 435. A will disposing of "all the estate I now own and possess" applies to realty acquired after its execution. Such language is not sufficient to show an intent on part of testator to dispose of his wife's interest in community property. The fact that the widow as executrix inventoried the land as part of the testator's estate does not preclude her from showing that it is her separate prop- erty. Haley v. Gatewood, 74 Tex. 285, 12 S. W. 25. " I will and bequeath all the estate I now own and possess," does not include the community interest of the other consort. Carroll v. Carroll, 20 Tex. 743; Haley v. Gatewood, 74 Tex. 285. ^ Brown v. Pridgen, 56 Tex. 125-6. Independent of hiisband's will the wife is held to be authorized to make a valid conveyance of com- munity property, to discharge a bond made by the husband to con- vey title, and satisfy claims of the government against the property for unpaid purchase money. Orr v. O'Brien, 55 Tex. 150; citing Jones v. Jones, 15 Tex. 143. The husband's will vested in his widow title to certain real estate, and recited that she should have power to "absolutely dispose of it according to her pleasure," and to "sell and convey or will and be- queath the same," and on failure to make a "full disposition of the property during her lifetime, that it should descend to designated par- ties She owned in her own right a community interest in the property. During her life she conveyed all her "right, title and interest, either in law or in equity," to the property by warranty deed, and it was after- wards reconveyed to her. Held, that the deed vested title in her grantee, and cut off the rights of the residuary legatees under the will, and the fact that the land was afterwards reconveyed to her was unimportant. Hanna v. Ladewig, 73 Tex 37; Smith v. Butler, 19 S. W. 1083. Miscellaneous.- In case of fraud by the survivor in administering the community estate, others interested and injured by such fraud would have recourse against the survivor for the loss. James v. Turner, 78 Tex. 241. The administration of the hus- band's estate does not seem to in- volve that of the community as in lyouisiana. vSee Caruth v. Grigsby, 57 Tex. 266; Soye v. McCallister, 18 Tex. 99; Pressley's Heirs v. Robin- son, 57 Tex. 453. As to descent where both die sim- ultaneously, see Soye v. McCallister, supra. A valid sale of community lands 303 § 235 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. § 235. In California. Rights and Interests of Survivor and Heirs. — The rules of the Mexican law as to the descent and distribution of the community property were recognized in California in the earlier enactments and in the decisions of its courts. The enactment of April 17, 1850, Section 11, was a substantial re-enactment of the Spanish law upon the subject of descent and distribution of community property; the section is as follows: "Upon the dissolution of the com- munity by the death of either husband or wife, one-half of the common property shall go to the survivor and the other half to tlie 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 wife, the whole shall go to the survivor, subject to such payment."^ It was suggested in Panaud v. Jones that unless the words "debts of the deceased" be construed to include all debts of the community contracted for the common benefit, whether by the deceased or by the survivor, it was a manifest devia- by the administrator on the estate tracts. Primm v. Barton, i8 Tex. of a decedent to pay community 206. debts, passes the title of the de- No rule of law requiring husband ceased husband and of the wife who to exhaust his personality before survived him, but who died before selling community lands to pay the grant of letters. Murchison v. community debts. Werner v. Sten- White, 54 Tex. 78, 25 S. W. 1102. zel, 48 Tex. 484. The power of general disposition Minor heirs may maintain suit to would control the lesser power to enjoin the surviving husband from encumber the estate. Jordan v. Im- selling wife's interest in community thurn, 51 Tex. 276. property. The administrator can- The surviving widow must show not. 14 S. W. 285. a vaHd mortgage, to perfect a sale Irregularities in qualifying cannot as surviving partner, to satisfy the vitiate a sale. Pratt v. Goodwin, 61 same. Roche v. jLovell, 74 Tex. Tex. 331. 191. ^ See People v. Setter, 27 Cal. 502; Administrator of wife's estate has Scott v. Ward. 13 Cal. 459; Panaud no control over the community v. Jones, i Cal. 512; Beard v. Knox, property while husband survives. 5 Cal. 256, 63 Am Dec. 125; Estate Walker v. Howard, 34 Tex. 478, 14 Buchanan, 8 Cal. 507; Gage v. Dow- S. W. 285. ney, 79 Cal. 140. Survivors power to fulfill con- 304 CHAP. VIII.] RIGHTS OF SURVIVOR AND HEIRS. § 236 tion from the Spanish law. But such construction was not approved by the court.^ The word " descendants," as con- strued under the Spanish law and the code of Louisiana, is intended to include all descendants in a direct line; hence, the term includes children, grandchildren, and their children to the remotest degree. The term is opposed to that of ascendants.^ Tlie words "shall go" in the act mean "shall vest," and appl}' equally to the descendants of the deceased husband or wife as to the survivor. In this act the heirs took title to the same extent and of the same nature as that vested in the survivor. This act was amended in 1861^ to read as follows: "Upon the dissolution of the community bv the death of the husband, one-half of tlie common property shall go to the surviving wife and the other half to the descendants of the deceased husband, tlie whole being subject to the payment of his debts. Upon the dissolution of the community by the death of the wife, the entire com- mon property shall go to the surviving husband. In case of the death of the husband, if there be no descendants of the husband, one-half of the common property may be subject to his testamentary disposition and, in the absence of such disposition, shall be subject to distribution in the same manner as the separate property of the husband." This amendment was passed to obviate many of the incon- veniences of the earlier statutes and in order that upon the death of the wife the entire common property should go to the surviving husband.* § 236. In California. Rights and Interests of Survivor and Heirs — Continued. — In 1864 the statute of descent and distribution of the community property was again amended to read as follows: " Upon the dissolution of the community by the death of the husband, one-half of the common property shall go to the surviving wife and the other half shall be 1 See Packard v. Arellanes, 17 ^ Statute of 1861, 310. Cal. 537. ■* Broad v. Broad, 40 Cal. 497; see ^Jewell V. Jewell, 28 Cal. 237. also Estate of Baubichon, 49 Cal 18. 20 305 § 237 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VIII. subject to the testamentary disposition of the husband ; and, in the absence of such disposition shall go to his descendants equally, if such descendants are in the same degree of kindred to the intestate, otherwise according to the right of representation ; and, in the absence of both such disposition and such descendants shall be subject to distribution in the same manner as the separate property of the husband; provided, that in case of tlje dissolution of the community by the death of the husband, the entire common property shall be equally subject to his debts, the family allowance and the charges and expenses of administration."^ The present law is substantially the same as the amendment of 1861, and is as follows: "Upon tlie death of tlie wife the entire community property without administration belongs to the surviving husband, except such portion thereof as may be set apart to her by judicial decree for her support and maintenance, which portion is subject to her testa- mentary disposition ; and, in the absence of such disposition, goes to her descendants or heirs exclusive of her husband."^ Prior to the statutes of 1861, on the dissolution of the com- munity by the death of either spouse, one-half of the community property went to the survivor and the other half to the surviving children.'' § 237. In California. Rights and Interests of Survivor and Heirs — Continued. — The survivor and the heirs hold the legal title to the community estate as tenants in common.* The interests of the heirs of the deceased member of the community become vested immediateh^ upon its dissolution.^ 1 Statutes of 1S63-64, page 363. lister v. Cordero, 76 Cal. 649; Payne " Cal. C. C. § 1401; see Moore v. v. Payne, 18 Cal. 291; Ord v. DeLa- Jones, 63 Cal. 14. giierra, 18 Cal. 66. ^ Cook V. Norman, 50 Cal. 633; ■'Johnson v. S. F. Sav. Union, 63 Greiner v. Greiner, 58 Cal. 120; Cal. 554; Broad v. Broad, 40 Cal. Johnson v. S. F. Sav. Union, 63 Cal. 496; Broad v Murray. 44 Cal. 228. 559; Morrison v. Bowman, 29 Cal. ^ DeLaguerra v. Packard, 17 Cal. 337; Jewell V. Jewell, 28 Cal. 232; 1S3; Cook v. Norman, 50 Cal. 634. Gage V. Downey, 79 Cal. 140; Hol- 306 CHAP. VIII.] RIGHTS OF SURVIVOR AND HEIRS. § 238 Under tlie act of 1850 the heirs took title of the same nature and to the same extent as that which vested in the survivor.^ Under the Mexican law the heirs succeeded immediately to the estate and became personally responsible for the debts.^ The surviving wife was liable for one-half of the debts, but to fix her liability the community property must be shown to be exhausted.^ Where there is nothing to show which spouse expired first, where both have been murdered about the same time, the husband will be presumed to have survived.* It was said in Johnson v. S. F. Saving Union' that the doctrine of the Spanish law, if such it be, that when the husband keeps undivided the common property, the community partnership is continued, acquired no foothold in California. This, however, was not the doctrine of the Spanish law.® A woman living w^th a married man as Ids ivife is not entitled to succeed to his property as a wife.^ The interest of the wife in the common property while the community exists is a mere expectancy, and after her death her interest constitutes' neither a legal nor an equitable estate, and there is nothing for the probate court to act upon, consequently the same is not subject to administration under the laws for the settle- ment of the estate of deceased persons.** Property conveyed by the Imsband to the wife during coverture so as to become her separate property as against creditors, cannot be reached by them after dissolution of the community.^ § 238. In California. Rights and Interests of Survivor and Heirs — Continued. — The interest of the wife, after its dissolution by the death of one of its members, was the same upon and after the adoption of the code; her interest is such 1 Broad v. Broad, 40 Cal. 496; see ■''• 63 Cal. 554. Broad v. Murray, 44 Cal. 22S; John- « See Schmidt's Civ. L,. S. and M. ; ston V. Bush, 49 Cal. 201. i Burge Com. 421. - DeLaguerra v. Packard, 17 Cal. ' In re Winters, Myrick's Pro- 183; Jewell V. Jewell, 28 Cal. 232. bate, 131. ^ Hames v. Castro, 5 Cal. 109. * Packard v. Arellanes, 17 Cal. 525. * Hollister v. Cordero, 76 Cal. 649; ' Peck v. Brummagim, 31 Cal. 444, see Sanders v. Simcich, 65 Cal. 50. 89 Am. Dec. 195. 307 § 238 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. after dissolution that she can maintain an action to protect her rights in community propert3\^ The interest of the wife in community property becomes, however, absolute at the death of the husband." On the death of the wife the children of the marriage succeed to her interest in the community propert}^ subject to the payment of the debts; the survivor becomes trustee for the interest of the heirs. No administra- tion of the wife's estate is necessary to pass her interest.^ In order to entitle the survivor to the whole common property it must affirmatively appear that there are no descendants of the deceased.* Prior to the act of 1861, upon the death of the husband intestate leaving no descendants, the surviv- ing wife and father of the deceased each inherited one-half of the husband's half of the common property.® The interests of the survivor and the heirs in communit}^ property is charged with the payment of the debts of the community," and is an asset in the liands of the administrator for that purpose.^ Upon the death of a married man the whole common property is assets of the deceased for the purpose of paying the debts of the deceased, to be administered upon by his personal representative. The homestead is no part of such assets." For all purposes connected with the admin- istration of the common property the debts are to be regarded not as mere private individual debts of the husband, but as debts of both husband and wife. No special remedy is pro- vided by the statute for the enforcement of the claims of creditors of the community dissolved by the death of the wife, or the protection of persons interested in its property, 1 Grienier V. Grienier, 58 Cal. 119, '^Morrison v. Bowman, 29 Cal. 120; Packard v. Arellanes, 17 Cal. 337; Cooke v. Norman, 50 Cal. 633. 525. ^ Harpe v. Callihan, 46 Cal. 222; - Beard V. Knox, 5 Cal. 252, 63 Am. Grienier v. Grienier, 58 Cal. 120; Dec. 125. Johnston v. S. F. Sav. Union, 63 3 Ord V. DeLaguerra, 18 Cal. 66. Cal. 559; 75 Cal. 144. ^ Cummings v. Chevrier, 10 Cal. * Estate Tompkins, 12 Cal. 114; 519. Gimmy v. Doane, 22 Cal. 638; Bren- ^ Jewell V. Jewell, 28 Cal. 232. nan v. Wallace, 25 Cal. 114. 308 CHAP. VIII.] RIGHTS OF SURVIVOR AND HEIRS. § 239 but the general powers of the court are adequate to give relief.^ The community interest of the heirs is not Hable for debts contracted after its dissolution by the survivor, such debts not being community debts.^ On the death of the wife, under the act of 1850, the community property was not released from liability to be taken for its debts. The wife's descendents took it subject to the payment of such debts, and no jn-obate administration of the estate of the de- ceased wife vvas necessary, but the husband had control of the propert}'', as survivor of the marital partnersliip, for the purpose of settling up its affairs.^ The surviving partner took the estate for the purpose of settling up its debts, not as a continuing partner, but as the surviving partner, but w^th the same rights, powers and lialjilities as a surviving partner in the commercial partnership at the common law.* § 239. In California. Rights and Interests of Survivor and Heirs — Continued. — The children of the deceased mother are tenants in common of tlie legal title with their father to the community property, with power in the father to convey or mortgage the whole estate as far as is necessary to provide for the debts of the community; and, in an action to foreclose the mortgage executed by the ftither subsequent to tlie death of themother they are necessary parties.''^ After the death of the wife it is said in Panaud v. Jones^ that th'e husband ma}^ dispose of the gananciales without being obliged to reserve for the children their property or any proceeds of gananciales, and tliat the father may dispose of the same after the death by will. This case was criticised in Tliomjjson V. Cragg^ as not being a true exposition of the powers of the ^ Packard V. Arellanes, 17 Cal. 525. Cal. 144; Ord v. DeLaguerra, 18 "- Johnston v. S. F. Sav. Union, 75 Cal. 66. Cal. 144. 5 Johnston v. S. F. Sav. Union, 63 ^ See Packard V. Arellanes, 17 Cal. Cal. 554; see Carter v. Conner, 60 536; Ord V. DeLaguerra, 17 Cal. 67; Tex. 52; Johnston v. S. F. Sav. Cooke V. Norman, 50 Cal. 636; John- Union, 75 Cal. 141. ston V. S. F. Sav. Union, 75 Cal. 142. « i Cal. 490. * Johnston v. S. F. Sav. Union, 75 ' 24 Tex 586. 309 § 239 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. survivor over the cominiioity propert}^ upon the dissolution by death of one of the members, and has not been subse- quently followed in California. The survivor had authorit}^ under the act of 1850, to keep alive the debt and the mort- gage made before the wife's death, but had no authority to make an entirel}^ new mortgage to raise money for the projection of new enterprises.^ One-half the community property passes to the surviving wife, subject to the lien of the mortgage created antecedent to the dissolution of the community.^ If, under the statutes, the title of the husband upon the death of the wife is vested as to any portion of the community property, such title })asses directly to the descendants of the wife and they take it subject to be absorbed in pa3anent of the communit}' debts.^ The sur- viving husband, on the dissolution of the community, has the exclusive right as survivor to administer the common property and to take possession and dispose of it for the purpose of settling the community.* In Cooke v. Norman^ the court said: "The authority to sell the propert}'' of the community belongs to him as the survivor of the commu- nity, and is the same in its nature as his power to do so during the existence of the coverture. The death of the wife did not deprive him of his power in this respect, and the purchaser dealing with him in good faith acquired a title valid in point of law as though the community had not been dissolved.'"^ The purchaser in good faith from the surviving husband, in order to support his title as against a child of the community, is not bound to show that the sale of the land by the husband was necessary to provide for the pajaxient of the community debts. The surviving husband has the right to sell community real property for ^ Johnston v. S. F. Sav. Union. 75 ^ Packard v. Arellanes, 17 Cal. 525. Cal. 142; Rvisk V. Warner, 25 An. ^ Fackard v. Arellanes, supra. 314; Kellogg V. Duralde, 26 An. 234. ^ 50 Cal. 634. - Burton v. Lies, 21 Cal. 91; Payne '^ Citing Broad v. Broad, 40 Cal. V. Payne, iS Cal. 291. 493; Broad v. Murray, 44 Cal. 228. 310 CHAP. VIII.] TESTAMENTARY DISPOSITION. § 240 the purpose of paying such debts.^ Real property conveyed to the wife during coverture b}'' deed of bargain and sale for a valuable consideration, becomes thereby community property, and upon dissolution she acquires an undivided interest therein as tenant in common with the heirs to whom the other half descends. She may, in such case where no administrator of the husband has been appointed, maintain ejectment for the entire premises against a mere intruder.^ As to division of deceased husband's property arising from rents, issues and profits, no administration is necessary where there are no debts, or where the survivor liquidates them.^ § 240. Testamentary Disposition. — Upon the dissolu- tion of the community under the Mexican law a one-half interest in the community property is vested in the wife, and this interest was not subject to the testamentary disposition of the husband. The same rule has been recognized in California.* The husband had the power while the commu- nity existed to dispose of the whole communit}^ i)roperty, and after the dissolution of the community to dispose of it while living, but not by will to take effect after his decease.'^ One-half of the community property on the death of the husband goes absolutely to the wife, the remaining half is subject to the husband's testamentary disposition. In the absence of such disposition the husband's half goes to his descendants, that is, to the particular class of his heirs entitled thereto." Where the husband's will devises all his property to his wife, the same being community propert}^, she takes one- 1 Cooke V. Norman, 50 Cal. 633; ^ See Wright v. Smith, 19 Nev. Grienier v. Grienier, 58 Cal. 120; 143, 7 Pac. 365; Gossage v. C. P. M. Johnston v. S. F. Sav. Union, 63 Cal. Co. 14 Nev. 153. 559; 75 Cal. 144. * Scott V. Ward, 13 Cal. 459; Beard - Hart V. Robertson, 21 Cal. 346. v. Knox, 5 Cal. 256; Estate Bii- As to the rights of a purchaser in chanan, 8 Cal. 507; Panaud v. Jones, good faith, see Cooke V. Norman, 50 i Cal. 512 (distinguished); /« re. Cal. 634. Williamson, 75 Cal. 317. As to when community is not free '•> Buchanan's Estate, 8 Cal. 507. from liability, see same. See Lewis ^ Beard v. Knox, 5 Cal. 252; Payne V. Lewis, 18 Cal. 654. v. Payne, 18 Cal. 292. 311 § 240 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VIII. lialf of the property in her own right and the other half as devisee under the will.^ While the testator cannot dispose of more than his half of the community property, a devise of the entire community property by the husband as his own, puts the wife to her election: whether to take under the will, or according to her legal rights in the property.^ The intent of the husband to will all of the community property is not to be readily inferred from the terms in the wil].^ It was said in re Gilmore^ that: " The testator must be presumed to have known that he had no power to dispose by will of his wife's interest in the community property, but only of his own interest therein;^ he must, also, be presumed not to have intended to devise any property over which he had no power of testamentary disposition.® The devise " of all my property of which I may die possessed," without naming any specific property, applies only to the testator's moiety of the communhy. It is only where there is such a clear manifestation of the intent to devise the whole community property as to overcome those presumptions that the wife can be put to her election to take under the will, or to take what she is entitled to by law.^ Where there is no such manifestation of intent the wife may claim and take both what the law gives her in the community property and, also, what is given her by the will of her husband in that portion thereof subject to his testamentary disposition."* The renunciation by the wife of her rights under the husband's will to community property does not extinguish the trusts ^ Payne v. Payne, supra; Estate Estate Silvey, 42 Cal. 212; King v. of Silvey, 42 Cal. 213; Estate Frey, Lagrange, 61 Cal. 221. 52 Cal. 658. " Morrison v. Bowman, 29 Cal. -In re. Stewart, 74 Cal. 98. 347; Noe v. Splivalo, 54 Cal. 207; 3 Estate Silvey, 42 Cal. 210; Beard Estate Stewart, 74 Cal. 98. V. Knox, 5 Cal. 252. » Beard v. Knox, 5 Cal. 252, 63 < 81 Cal. 242. Am. Dec. 125; Payne v. Payne, 18 ^ C. C. II 172, 1331, 1402; Morri- Cal. 301; Estate vSilvey, 44 Cal. 210; sou V. Bowman, 29 Cal. 347; Estate King v. Lagrange, 50 Cal. 331; Es- Frey, 52 Cal. 660. tate Frey, 52 Cal. 658. « King V. Lagrange, 50 Cal. 332; 312 CHAP. VIII.] TESTAMENTARY DISPOSITION, § 241 declared in the will, nor divest the executor of the fee in the remaining portion of the property.^ "^'^J estate" in hus- band's will means the estate subject to Ins testamentary- disposition. The renunciation "of all claim to my estate subject under this will" is not a renunciation of the widow's share of the community property.^ Where the wife acts and takes under the will, she is deemed to have renounced the community property.'' The circumstances sufficient to con- stitute a waiver of her rights are an attempt to dispose of her interest in the community property on part of the tes- tator, and an acceptance by the wife of the benefits conferred by the will with knowledge of that intent** § 241. Testamentary Disposition — Continued. — The widow who has caused the will of her husband to be pro- bated and has acted as executrix therein, is not estopped to make her election, to take under the law rather than under the will.'^ Her election to take the share in the community property to which she is entitled, and not to take under the will of her husband, is not in effect a contest of the will, or of its probate. The terms of a will giving certain real and per- sonal property to testator's wife, and to his two sons " all of real propert}^ in Butte County, California," of which he might die seized, the real property being community property, were held not to put the widow to an election, and that she was entitled to one-half of the real property in Butte County as survivor of the community.'^ A posthumous child, for whom no pro- vision is made in the will of the father, is entitled to one-half the common property, where no express intent of the testator appears.^ Where divorce has been granted and the commu- nity property divided by decree, the executor of the last will 1 Estate Delaney, 49 Cal. 76. ^ Morrison v. Bowman, 29 Cal. - In re. Miimford, Myr. Prob, 133; 348; King v. Lagrange, 50 Cal. 328. see example King v. Lagrange, 61 ^ Estate Frey, 52 Cal. 658; /;/ re Cal. 221. Gwin, 77 Cal. 313. ^ Morrison v. Bowman, 29 Cal. 348; ^ Buchanan's Estate, 8 Cal. 507.. see also King v. Lagrange, 50 Cal. ' McLeran v. Benton, 31 Cal. 30. 328. 313 § 242 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. of the husband cannot exclude the community interest of the wife from the heirs.^ § 242. Homestead. — If there is community property, the homestead should be set aside and selected from it, and not from the separate property of the husband on his decease.^ The setting aside of a homestead out of community property pending administration excludes it from distribution, and relieves it from administration; but does not affect the title to the same. If no homestead is declared during the exist- ence of the community, it vests according to § J 402, Civil Code, regulating the succession of community property, sub- ject, however, to its temporary use as a homestead under probate orders setting it apart for that purpose."^ A home- stead dedication under the act of 1851 did not constitute the husband and wife joint tenants with a right of survivorship, nor change the nature of their prior community estate in the land, and had no other effect than to exempt it from alienation. Upon the death of the wife her interest in the community property, although the homestead, immediately vested in the children, who became tenants in common with the father, but they held their interest therein subject to the homestead claim of the father, unless abandoned, when they would be entitled to the immediate possession of their un- divided interest in the property. A re-dedication of home- stead after a second marriage cannot affect the interests of the children of the first marriage in the community home- stead.^ Community property duly dedicated as a homestead, upon the death of one of the spouses, becomes the sole prop- erty of the survivor, and is protected as such to the survivor in the same manner as before it had been j)rotected to the community by its homestead character, and is exempt from seizure and forced sale.* Upon the death of a husband, leav- ing a surviving widow, the homestead vests absolutely in 1 § 1465, Civ. Code Cal.; Lord v. » Johnston v. Bush, 49 Cal. 198. Lord, 65 Cal. 84. * Sanders v. Russell, 86 Cal. 119. - In re Gilmore, 81 Cal. 240. 1 314 CHAP. VIII.] DESCENT, ETC., IN WASHINGTON. § 243 tlie widow, even if there are surviving children.' This change over the statute of 1851 was accomplished by the act of 1862.^ § 243. Descent and Distribution in Washington — Rights and Powers. — As in the other community States, the death of either spouse works in Washington an immedi- ate dissolution of the community,^ and thereby the powers and functions of the spouses over the property are brought to a close. The rights of the survivor to manage and wind up the estate do not exist as in Texas, assimilated to tliose of the survivor of a business partnership; administration is indispensible for this purpose.* The survivor possesses no power to proceed to settle the affairs of the estate or to pay its debts; but the law, where the necessity exists for administra- tion within the rules announced by the Supreme Court in the cases cited in the notes, places the possession and settle- ment of the community estate in the hands of an adminis- trator.^ Where no necessity for administration exists the rights of the survivor and of the heirs are complete, and nothing further need be done to perfect in them their respective interests.'^ On the death of either spouse intestate one-half of the community property immediately vests in the heirs and the other half remains in the survivor, the whole estate, however, being subject to the debts and charges created against it during tlie coverture. In case both spouses perish intestate in the same calamity, the whole estate would doubtless pass to the descendants and, if none, to the heirs of the husband according to the order of descent of his separate propert}', on the theory that the husband would be 1 Estate of Wixoiu, 35 Cal. 320; ■* Ryan v. Ferguson, 3 Wash. 363; Bollinger V. Manning, 79 Cal. 7; see Lawrence v. Bellingham Bay Co., 4 Sanders v. Russell, 86 Cal. 119. "Wash. 664; In 7'e Hill, 6 Wash. 285; - Stats. 1862, p. 519; Estate of compare Hill v. Young, 7 Wash. 33. Wixom, supra; see also Estate of ^ Balch v. Smith, 4 Wash. 497; Delaney, 37 Cal. 176. Lawrence v. Bellingham Bay Co., 4 ' Hill V. Young, 7 Wash. 33; Ryan Wash. 664. V. Ferguson, 3 Wash 356. ^ Hill v. Young, 7 Wash. 33. 315 § 246 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. presumed to have survived his wife. The interests of the heirs to their several raoities attach at the instant of the dissolution and are held with the survivor and with each other as tenants in common in the entire estate.^ § 244. Interests Upon Dissolution. — The spouses own no specific part of tlie community estate before its dissolu- tion, and they cannot say that they own in severalty any specific part thereafter until the charges and expenses to which it may be subject have been satisfied and partition effected. Th6 survivor and the heirs own, to be sure, undivided moieties as tenants in common in the entire estate, subject to the payment of the community debts.""^ The law makes no distinction between the riglits and interests of the survivor; whether it be the husband or the wife that survives, the law is the same in either case. In this respect the statute differs from that of California and some of the other community States. § 245. Order of Descent. — The statute fixes the order of descent where no testamentary disposition is made by the deceased of the community property, with precision and simplicity, so that few complications can result.^ On the death of either spouse intestate, one-half of the community property descends in equal moities to the legitimate issue of his, her, or their bodies, if living; otherwise, if there be no representatives living, not including collateral heirs, the entire estate passes to the survivor charged with the com- munity debts, family allowance and cost of administration.* § 246. Who May Inherit. — The '-'heirs" who are recog- nized by the statute are what may be termed "descendants" of the deceased spouse, or such as have issued from his, her, or their bodies, as the case may be; as, for example, a cliild or children of the deceased or of tlie marriage, or in default of such child or children, their children to the remotest ' See Lawrence V. Bellingham Bay ^ Gen. Stat. ^ 148 1. Co., 4 Wash. 664. * Gen. Stat. § 1481; see Morgan v. ^ Ryan v. Ferguson, 3 Wash. 361. Bell, 3 Wash. 554. 316 CHAP. VIII.] DEBTS AND CHARGES. § 247 degree: such as grandchildren of the deceased, etc. The step-child or children of the deceased spouse manifestly are not emhraced within the statute, but only lineal descendants in a direct line. The survivor does not in any case become an heir of his consort when descendants exist qualified to take the half of the estate left by the deceased spouse, or where the deceased has devised his half thereof. The heirs of the deceased primarily inherit tlie community })roperty, the survivor only in the event of their non-existence. The interest of the survivor is, however, likened by the Supreme Court to that of a lineal heir of the deceased.^ § 247. Debts and Charges. — The interest of the survivor and of the heirs in the community property are burdened with the payment of the community debts, the family allow- ance, and the charges and expenses of administration. Their interest does not vest except subject to such charges and expenses. While the community ends upon the instant of the death of either spouse, as it is said, the relationship of the parties in the property as to its liability for the debts of the community does not cease, nor is it in any sense altered. These debts are not postponed until the death of tlie other member.^ Like in a commercial partnership, upon dissolution by death of one of its members, liquidation of the estate at once begins. The interests of the survivor and the heirs in the community estate are said by tlie court in Ryan v. Ferguson^ to be held in "abeyance" or "suspended," subject to the probate of tlie estate to determine the inheritable interest over and above the debts and charges with which it is laden. These interests do not descend until such matters are adjudicated. After the communit}^ estate is relieved of the community debts, or if there are none, the interest therein of either spouse is liable for the separate debts con- tracted by that spouse. " The only reason," says the court in Columbia Bank v. Embree,^ "for exempting community ^ Ryan v. Ferguson, 3 Wash. 362. ^ 3 Wash. 363. 2 Ryan v. Ferguson, 3 Wash. 362. * 2 Wash. 336. 317 § 248 BALLINGER ON COMMUNITY PROPERTY. [CIIAP. VIII. property from tlie separate debts of either spouse is for the benefit of the community, and when tliis is dissolved the reason no longer exists." The community debts are, how- ever, primarily a charge upon community property, and the separate creditor must be postponed to the rights of the community creditor in the matter of satisfaction out of com- munity property, but wlien a residuum is ascertained this may be seized by separate creditors to the extent of the debtor's interest therein for the satisfaction thereof^ Upon principle and authority the community personal property is liable during coverture for the separate debts of the husband as an entiretv." And it mav be said, for the same reasons, that not onl}" the husband's half of the community personalty is subject to his separate debts after dissolution, but the whole thereof is subject to seizure therefor after the commu- nity debts are paid. The law is settled that in case there should not be enough of the separate property of either si^ouse to pay his or her separate debts, the deficiency could be made good out of the contracting spouses interest in the community property after the community debts have been paid.^ In any event the se})arate creditors are postponed to the rights of tlie community creditors and they can reach no community property other than their debtor's interest, unless as before stated they be creditors of the husband. § 248. Liability of Separate, After Exhausting Com- munity Property. — It would seem, from the language of the court in. re Hill,^ that it was intended to hold separate property liable for community debts after the community property had been exhausted and the separate debts paid. It was said, also, in Columbia Bank v. Embree:^ "His separate estate, not otherwise exempt, would be liable for community debts at any rate after the separate debts were paid and the community property exhausted." This doctrine ^ See in re Hill, 6 Wash. 289. ■> 6 Wash. 289. * See atite, chap. V, I 133. * 2 Wash. 336. 3 In re Hill, 6 Wash. 289. 318 CHAP. VIII.] NECESSITY OF ADMINISTRATION. § 249 may be true as to the separate property of the husband since in a sense the communit}^ debts are his debts, and of course it is true as to all debts for necessaries, but it is difficult to discover any authority for seizing the wife's separate prop- erty for a community debt unless it be for necessaries.^ She has not the power in Washington of renouncing the com- munity, as in Louisiana, and thereby exonerating herself from the community debts, and she should not, consequently, be held to have placed her separate estate at the mercy of an improvident, profligate or unscrupulous husband to be absorbed by community debts. The case of the husband is different, since he has the management and control of the community property during the existence of the marital union. § 249. Necessity of Administration. — It is held that upon the death of either spouse the whole community estate and not merely the interest of the deceased therein is subject to administration proceedings for the payment of commu- nity debts and for distribution.^ The separate estate of the deceased and the community estate may be administered in the same proceeding, but they should be kept separate to prevent confusion of separate with community debts, and separate preperty with community property. ]\Iuch con- fusion is bound to result, in many cases from the system in force, where a partnership estate is involved. Three different estates may be substantially brought under one administra- tion, and confusion in large estates involving complex transactions would be practically inevitable. Under tlie earlier decisions of the court, notably in the case of Batch v. SmitJi,^ the rule was laid down that the intervention of the probate court and an adjudication and distribution there- under was essential to passing the title of a descendant's estate to his heirs, and that until such action by the court ^ See Hill v. Young, 7 Wash. 38. ^ ^ Wash. 497. 2 Ryan v. Ferguson, 3 Wash. 356; In re Hill, 6 Wash. 2S5. 319 § 251 BALLINGER ON COMMUNITY PROPERTY. [cHAP. VIII. the title remained in abeyance, or suspended, subject to its decree, and did not regularly pass from the ancestor to the heir without the court's intervention, consequently, it was held that under the rule requiring the property of the community to be administered with the estate of that member of the community first deceased, the surviving member could not maintain an action for his half interest in a community contract until after a decree of distribution.^ § 250. Necessity of Administration — Continued. — The same rule would be, doubtless, applicable to the heirs of the deceased member of the community. This doctrine carried to its logical conclusion would require the survivor to either take out letters of administration or be subrogated to the rights of an administrator as to the whole community estate. But undoubtedly the survivor may exercise the preference right accorded by the statute to surviving husband or wife in obtaining administration of the estate.^ The doctrine announced in Balcli v. Smith, supra, has been gradually re- ceded from by means of exceptions to the general rule there announced, so that the same has been substantially modified, if not overruled, for it is held in Hill v. Young^ that where there has been no administration upon the estate of a wife, or upon the community property, for a period of eight years after her death, her husband and an only child surviving her, the presumption is that as to the community real prop- erty there was no necessity for administration, and that the rights of the child to the possession of his share in the com- munity real estate as heir of his mother is complete. In the more recent case of Tucker v. Mastick^ it was held that no probate was necessary to entitle the heirs to maintain an action to recover possession of the estate of their ancestor. § 251. Testamentary Disposition. — The statute expressly ^ Lawrence v. Bellingliani Bay * 7 Wash, 33. Co., 4 Wash. 664. ■» 37 Pac. 456. - Code of Procedure, ^ 900; In re Hill, 6 Wash. 291. 320 CHAP. VIII.] TESTAMENTARY DISPOSITION. § 251 sanctions the right of either spouse to make a testamentary disposition of the testator's half of the community property, subject to the payment of the community debts.^ Neither member can, however, devise more than his or her half of the community property, and a will purporting to convey the entire estate made by either the husband or the wife would convey only the testator's half thereof. The power to devise community property may be so exercised as to cut off any inheritable interest tlierein which would otherwise fall to the heirs or to the survivor.^ No statutory provision exists either restraining or granting testamentary power over the community real property, but the power to devise the half thereof belongs to either spouse, undoubtedly, the same as in case of personalty. Section 1481 indicates the general power. An important case was recently decided by the Supreme Court of Washington'' touching tlie rights of a putative wife in lands devised by her putative husband, wliich he had acquired under the homestead laws before any marriage ceremony was had between them. The facts are briefly as follows: Erskine Kromer willed to his children certain lands which were entered by him as a homestead in 1870. About the time of such entry and continuously thereafter to his decease he cohabited with an Indian woman, by whom he had the said children. Final proof was made by Kromer on such lands December 21, 1876, and patent issued Decem- ber 30, of the same year. Between said dates a marriage ceremony was celebrated between him and said Indian woman. After his decease and the probate of his will pro- ceedings were instituted in the Probate Court seeking to sell said lands, wherein the widow intervened and asked a par- tition, alleging a community interest therein as the wife of said Kromer. The Probate Court denied her claims, but on appeal to the Superior Court they were sustained, adjudging 1 I 1481 Gen. Stat. » Kromer et al. v. Friday, et al., 2 Hill V. Hill, 7 Wash. 409 filed January 14, 1895. 321 § 251 BALLINGER ON COMMUNITY PROPERTY. [CHAP. VIII. her possessed of a coinmuuity interest therein. Tlie said widow subsequently quit-claimed her interest in said prop- erty, and the grantee in partition proceedings obtained a decree for the sale of the same, and became the purchaser at the sale. This action was brought to vacate the decree of sale. The court upon the facts, Held, that lands acquired under the homestead laws are taken not by gift, but by pur- chase,' and hence community property of husband and wife; that the equities of the wife in the property were equal to those of Kromer or the children, and notwithstanding the recognition of the doctrine of relation of patent back to the time of making final proof, and that the relation of Kromer and his Indian woman until after the making of final proof constituted merely a common law marriage, the land did not vest in him as his separate property, but was the com- mon property of them both, and hence the will did not de- vise her interest therein. This case seems in effect to mocliy, if not overrule, the cases of Kelleyv. Kitsap County^ and in re McLaughlin^ which hold that a common law marriage is invalid in AVashington.* ^ See ante, chap. II, I 31, note 2. » 4 Wash. 570. 2 5 Wash. 523. * See ante, chap. II, ? 14. 322 CHAP. IX.] ORIGIN AND NATURE OF. § 252 CHAPTER IX. CONSTRUCTON OF COMMUNTY STATUTES. ^ 252. Origin and Nature of. I 253. Common Law Superseded. ^ 254. Construction of. § 255. Rule as to Laws Adopted from Foreign Sources. ^ 256. Construction in Louisiana. ? 257. Construction in Texas. § 25S. Construction in California. § 259. Construction in Washington and Other States. ^ 260. Rights of the Community Construed Liberally — Separate Rights Strictly. § 261. Territorial Liniitations of Commimity Laws. I 262. Domicile — Change of. § 252. Origin and Nature of. — The statutory provisions of the several States relating to community rights of the spouses in property, as heretofore pointed out, show their common origin to have been the civil law of Spain. The community system, from the fact that its cardinal principles are based upon the separate identity of the spouses and their mutuality of interest in all marital acquisitions, as opposed to the common law doctrine of the merger of the identity of the wife in that of the husband, render it absolutely incom- patible with the law of property rights of married persons as administered under the common law.^ In all the States, except Louisiana, these statutes have come into direct con- tact with the common law, where they have encountered a ^ See chap. I, § i. 323 § 254 BALLINGER ON COMMUNITY PROPERTY. [ciIAP. IX. certain degree of partiality for the common law, in conse- quence of the profession having been for the most part trained under that school of jurisprudence. § 253. Common Law Superseded. — Several of the codes in community States expressly abolished the right to dower and courtesy upon the importation therein of the commu- nity laws/ and where not expressly repealed the rights of the spouses at the common law must be treated as impliedly abrogated, because of their utter incompatibility with com- munity principles. In a system which elevates the rights of the wife in property to an equality with that of the hus- band, and constitutes their marital contract as creating between them a sort of partnership relation as regards ac- quisitions obtained while such contract exists, the entire meaning and import of this law must be regarded as repug- nant and even inimical to the principles of the common law. But the common law is, however, in all these States, save one, the basis of their jurisprudence. It furnishes the chart and compass of interpretation where no other index exists, and where the statutes are silent it alone speaks. The question then is: How are these statutes to be construed, and are they to have a strict or liberal construction? § 254. Construction of. — The system of property rights treated in this volume, while an innovation on common law principles, may be said to be in derogation thereof. The prevailing rule of construction of statutes in derogation of the common law, which provide rights, remedies and limita- tions unknown and contrary to that system, unless remedial in their nature, is that they are to be construed strictly. This has become the settled dogma of the courts whenever called upon to construe this class of statutes.^ The Legisla- ture is presumed to have expressed the limit intended to be 1 See Appendix; see also chap. II, Stat. § 127; Am. and Eng. Bncy. of § 10. Law, page 386. ' So. Stat. Const. § 400; End. Int. 324 CHAP. IX.] LAWS ADOPTED PROM FOREIGN SOURCES. § 255 conceded to all departures from the common law by the ex- pressions and terms of the enactment itself, and to have inhibited a construction or intendment enlarging its scope or meaning. But must the statutes relating to community property in the various States be governed by the rigid rules here announced? Clearly this rule cannot be applied in Louisiana, since the common law has no force or application within its jurisdiction. The community system, as we have said, is a product of the civil law; it has been borrowed by the legislatures of the several States either from that source directly or from each other, and they have attempted to su- persede the common law by a system repugnant thereto. Can it be fairly said, under these circumstances, in view of the fact that the law-making power is presumed to have known that the community system was foreign and inhar- monious to the doctrines of common law, that the legislature intended that these equitable and humane principles, ap- plicable to the proprietary rights of the spouses in the commu- nity, should be limited to the strict letter of the law, and stripped of all judicial interpretation which has been so intimate a part of its structure? It would seem that the intent in adopting from a foreign source these laws was to include the spirit as well as the letter of the law as a part thereof, and to furnish a substitute for the discarded rules of the common law. How then can the common law aid in the interpretation of community rights?^ § 255. Rule as to Laws Adopted from Foreign Sources. — An important rule of construction, almost universally recognized, is that where a State adopts the laws of another State or Nation, the construction of those laws as pronounced by the parent State accompany and form an integral part of the same. The imported construction should, however, pre- vail only so far as it is in harmony with the spirit and policy of the general legislation of the home State.^ This rule 1 See chap. II, ^ lo. Lumber Co. v. McChesne}-, i Wash. "End Int. Stat. ^371; Contra, 609. 325 § 257 BALLINGER ON COMMUNITY PROPERTY. [CHAP. IX. is unquestionably applicable in those States which have adopted the statutes of the older community States, and of more or less potency regarding the entire jurisprudence upon this subject, in order to obtain a just, fair and intelli- gent notion of the community relation as intended by the statute. It is true that statutes in amendment of the com- mon law must be construed in the light of that system, but this statute is not in amendment thereof, but is a clear sub- stitution. The common law if attempted to be used to throw light upon doubtful features of the community statute ' would only shroud it in deeper obscurity, since it furnishes no analogies with the civil law system. These community statutes, however, should not be so interpreted as to over- turn common law principles in other departments of juris- prudence where they come in conflict. The common law must continue to be regarded as the basis of our juris- prudence. § 256. Construction in Louisiana. — Regarding the con- struction of these laws as appertaining to Louisiana, Judge Porter, in his clear and masterly discussion thereof in Saul V. His Creditors,'^ said: "The jurisprudence of Spain came to us with her laws. We have no more power to reject the one than the other; the people of Louisiana have the same right to have their cases decided by that jurisprudence as the subjects of Spain have; except so far as the genius of our government, or our positive legislation, has changed it, * * * and what is settled as law in Spain cannot be con- sidered as unsettled here." The same court has said in Glenn v. Elan f that, "In a system so purely artificial as that of the community, between husband and wife, it is inadmissible 1o defeat these positive enactments by mere conjectural implications."^ § 257. Construction in Texas. — The courts of Texas, with their usual breadth and learning, have given the com- 1 5 Mart. N. S 569. ^ La. C. C. Art. 2377; Lawson v. ■ 3 An. 611. Ripley, 17 La. 238; see chap. II, §9. 326 CHAP. IX.] CONSTRUCTION IN TEXAS. § 257 munity system a liberal interpretation consistent with the aim and purpose of its beneficent provisions. "We have adopted this civil law rule (of equality of interest in the spouses)," says the court in RouiJi v. Routlt,^ "as it applies to the marital relation, engrafting it upon our common law contract of marriage. * * * Jq adopting the com- munity sj^stem, as it may be termed for convenience of expression, neither the civil law governing the subject of marriage nor the entire sj'stem of acquests and gains, was made a part of our law. The enactments which regulate the subject in this State are specific and definite statutory rules, and the civil law is not incorporated with them, nor is it further accepted than as it may have been enacted in the statute. * * * gut the learned commentaries of civil- ians which have construed provisions of their own S3^stem of marital rights, unquestionably are to be considered with the highest respect in the construction, meaning and inter- pretation of such parts of our system as are borrowed from theirs."^ Hemphill, Chief Justice, in Cartivright v. Hollis,^ after stating the substance of the act of 1840 on property'- rights of married persons, said: "These provisions were superinduced upon the repeal in the same statute of the laws which, under a different system, had regulated the rights of marriage. They bear a close resemblance and affinity to those which by the same act were abolished, and the obvious purpose of the statute was to preserve from the wreck of the Spanish s^^stem of jurisprudence those rules, with some modification, which regarded the matrimonial union, so far as property was concerned, as a species of part- nership, and in which each partner might have separate estates or property, as well as a common stock of acquisitions and gains. They have no analogy to the strict principles of the common law, and they exclude all such rules and doc- 1 57 Tex. 596. t Tex. no; Cordier v. Cage, 44 Tex. 2 See Clift v. Clift, 72 Tex. 149, 10 532. S. W. 338; Burgess v. Hargrove, 64 ^ 5 Tex. 163. 327 § 258 BALLINGER ON COMMUNITY PROPERTY. [CHAP. IX, trine as merge the individuality of the wife in the person of the husband; at least so far as the rights of the parties to property is in question, and which preclude the idea that the wife may have a separate estate and interest." § 258. Construction in California. — The California courts have adopted a narrower and stricter rule than that observed in Texas, and it has tended to dwarf and limit the proprie- tary rights and interests of the consorts to the extent of divesting the wife of anything more than a mere expectancy in the property jointly accumulated. It was said on this subject in VanMaren v. Johnson^ that, "The object must then be solved by considerations arising from the rules of the common law. That law constitutes the basis of our juris- prudence, and rights and liabilities must be determined in accordance with its principles except so far as they have been modified by statute."^ § 259. Construction in Washington and Other States. — Washington is the only State which has declared by statute the rule of construction which must be applied to the prop- erty rights of husband and wife, and in clear and explicit terms says that "The rule of the common law that statutes in derogation thereof are to be strictly construed has no ap- plication to this chapter. This chapter establishes the law of this State respecting the subject to which it relates, and its provisions and proceedings under it shall be liberally construed with a view to effect its object."^ A similar pro- vision exists in the Iowa code applicable to the code gen- erally, and by virtue thereof the property rights of married women are liberally construed.* It would seem from these ^ 15 Cal. 308. and where common law abolished ^ See chap. II, § 9. see Bourdeno v. Amperst, 14 Mich. 5 See Appendix, ^ 1406, Gen. Stat. 97, 90 Am. Dec. 225; Tillman v. Wash. Shackleton, 15 Mich. 455, 93 Am. * ? 3733 McClain's Iowa Code; see Dec. 198; Rankin v. West, 25 Mich. Kramer v. Redman, 9 la. 114; Han- 195. non V. Madden, 10 Bush. (Ky.) 664; 328 CHAP. IX.] LIMITATIONS OF COMMUNITY LAWS. § 261 considerations that the general rule regarding statutes in derogation of the common law can have little force or appli- cation in Washington, or, for that matter, in any of the community States, regarding tlie property rights of the spouses.^ § 260. Rights of the Community Construed Liberally — Separate Rights Strictly. — The States enacting the community laws have established the rights of the commu- nity as a general rule. The presumption attending the purchase or possession of all property during coverture is that it belonged to the community, and exceptions to this rule must be proved. According to the weight of authority the general rule should be construed liberally as against all exceptions thereto. The intendments of the statute run in favor of the community. " The presumptions of law strongly favor the rights of the community, and they should have their due force where the law is not too clear to exclude their operation."*^ § 261. Territorial Limitations of Community Laws. — The community statutes possess no extra territorial force or effect. They are local in their application, but apply equally to married persons regardless of whether they be residents or non-residents of the State; the effect upon their acquisitions during coverture is in either case the same within the territorial limit of the State in which these laws prevail. The rule is uniform in all the States that all prop- erty, acquired during the marriage by either spouse situated therein, will be deemed the common property of both whether the purchase be by a resident or by a non-resident, and this is true even though the spouses were mari'ied in a ^ The statutes of Washington were them. See Appendix for a compari- not borrowed as an entirety from son of statutes. an)' of the other States but are of - Yates v. Houston, 3 Tex. 443; composite origin, containing fea- Meyer v. Kinzer, 12 Cal. 252; see tures more or less common to all of chap. IV, ^ 160. 329 § 262 BALLINGER ON COMMUNITY PROPERTY. [CHAP. IX. common law State and resided there at the time of the acquisition.^ § 262. Domicile — Change of. — The statute of the prop- erty rights of husband and wife is a real statute and prevails over the 'personal statute of the domicile and, if husband and wife after marriage remove from the State in which the contract of marriage was effected, their subsequent acqusi- tions will, without an agreement to the contrary, be controlled by and under the laws of the State into which they remove. And if they acquire personal property in one State and remove with it into a community State, the laws of the State where the property was acquired will govern as to whether it be separate or community property. If by the laws of the foreign State their antecedent acquisitions would be separate property, they would retain that character in the new domicile.^ In all this class of cases the foreign statute must be proved to reacli this result, as in the absence of all evidence it would be presumed to be the same as the laws of the State in which the new domicile has been acquired.^ The statute in force under which the property of the com- munity is acquired, and not that at the date of its dissolution, regulates the rights of the spouses in the estate made during coverture, consequently the repeal of a statue does not destroy the rights of the spouses acquired under it.* > See chap. II, § 12. Marstersv. Lash, 61 Cal. 624; Shum - See chap. II, § 47. way v. Leakey, 67 Cal. 460. ^ Mortimer v. Harder, 93 Cal. * Dixon v. Dixon, 4 La. 188; see 177-8; Hickman v. Alpaugh, 21 Cal. Stewart on Husband and Wife, I 319. 226; Hill V. Grigsby, 32 Cal. 60; 330 APPENDIX. APPENDIX. COMMUNITY PROPERTY LAWS OF LOUISIANA, TEXAS, CALIFORNIA, NEVADA, WASH- INGTON, IDAHO, ARIZONA, SPAIN AND MEXICO. LOUISIANA. (References are to Voorhie's Revised Civil Code.) MARRIAGE STIPULATIONS — Art. 2392. Married persons may stipulate that there shall be no partnership between them. Art. 2393. In this case the wife preserves the entire administration of her moveable and imm^oveable property, and the free enjoyment of her revenues. Art. 2394. She may alienate her moveable and im- moveable property in the manner and in the cases above provided for with respect to paraphernal property. Art. 2395. Each of the married persons, separate in property, contributes to the expenses of the marriage in the manner agreed on by their contract; if there be no agree- ment on the subject, tlie wife contributes to the amount of one-half of lier income. Art. 2396. When the wife, who is separate in property, has left the enjoyment of her property to her husband with- out any procuration, he is not answerable for the fruits until a demand of them be made by his wife, or if it is not made, until the dissolution of the marriage. He is not accountable for the fruits which have been previously consumed. 334 LOUISIANA. Art. 2332. The partnership, or community of acquests or gains, needs not to be stipulated ; it exists by operation of law in all cases where there is no stipulation to the contrary. But the parties may modif}^ or limit it; they may even agree that it shall not exist. Akt. 2424. Married persons may by their marriage contract modify the legal community as they think fit, either by agreeing that the portions shall be unequal, or by specify- ing the property belonging to either of them, of which the fruits shall not enter into this partnership. Art. 2333. From the various conventions which are customary in marriage contracts, or which are a consequence of the marriage, result various distinctions with respect to the property which may be the object of these conventions. CLASSIFICATION OF PROPERTY OF MARRIED PERSONS — Art. 2334. The property of married persons is divided into common property and separate property. Separate property is that which either party brings into the mar- riage, or acquires during the marriage by inheritance or donation made to him or her particularly. Common prop- erty is that which is acquired by the husband and wife during marriage in any manner different from that above declared. Art. 23;i5. The separate property of the wife is divided into dotal and extradotal. Dotal property is that which the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Extradotal prop- erty, otherwise called paraphernal property, is that which forms no part of the dowry. Art. 2383. All property which is not declared to be brought in marriage by the wife, or to be given to her in consideration of the marriage, or to belong to her at the time of the marriage, is paraphernal. COMMUNITY OR PARTNERSHIP OF ACQUESTS OR GAINS — Art. 2399. Every marriage contracted in this State super- APPENDIX. 335 induces of right partnership or community of acquests or gains, if there be no stipulations to the contrary. Art. 2400. All property acc^uired in this State by non- resident married persons, whether the titles thereto be in the name of either husband or wife, or in their joint names, shall be subject to the same provisions of law which regulate the community of acquests and gains between citizens of this State. Art. 2401. A marriage contracted out of this State between persons who afterwards come here to live, is also subjected to community of acquests with respect to such propert}^ as is acquired after their arrival. Art. 2402. The partnership or community consists of the profits of all the effects of which husband has the administratioi] and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to and not the person who made the purchase. Art. 2403. In the same manner, the debts contracted during the marriage enter into the partnership or commu- nity of gains and must be acquitted out of the common fund, whilst the debts of both husband and wife anterior to the marriage must be acquitted out of their own 2:)ersonal and individual effects. Art. 2404. The husband is the head and masier of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by onerous title, without the consent and permission of his wife. He can make no conveyance inter vivos by a gratuitous title of the immovables of the com- munity, nor of the whole, or of a quota of the movables, unless it be for the establishment of the children of the 336 LOUISIANA. marriage. Nevertheless, he may dispose of the movable effects by a gratuitous and particular title to the benefit of all persons. But, if it should be proved that the husband has sold the common property, or otherwise disposed of the same by fraud to injure his wife, she may have her action against the heirs of her husband in support of her claim in one-half of the property on her satisfactorily proving the fraud. DISSOI.UTION OF THE COMMUNITY — Art. 2405. At the time of the dissolution of the mar- riage all effects which both husband and wife reciprocally possess are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage or which have been given them separately, or which they respectively inherited. Art. 2406. The effects which compose the partnership or community of gains are divided into two equal portions between the husband and the wife, or between their heirs, at the dissolution of the marriage; and it is the same with respect to the profits arising from the effects which both husband and wife brought reciprocally in marriage, and which have been administered by the husband, or by the husband and wife conjointly, although what has been thus brought in marriage by either the husband or the wife be more considerable than what has been brought by the other, or even although one of the two did not bring anything at all. Art. 2407. The fruits hanging by the roots on the lands belonging separately to either the husband or the wife at the time of the dissolution of the marriage, are equally divided between the huband and wife, or their heirs. It is the same with respect to the young of cattle yet in gestation. The fruits of the paraphernal effects of which the wife reserved to herself the enjoyment, are excepted from the rule contained in this article. Art. 2408. When the separate property of either the husband or the wife has been increased or improved during APPENDIX. 337 marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one-half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry ; but there shall be no reward due if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade. LIABILITY FOR DEBTS — Art. '2409. It is understood that in the partition of the effects of the partnership or community of gains both hus- band and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution. RENUNCIATION BY WIFE — Art. 2410. Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted durmg the marriage, by renouncing the partnership or community of gains. Art. 2411. The wife who renounces loses every sort of right to the effects of the partnership or community of gains. But she takes back all her effects whether dotal or extra- dotal. Art. 24J2. The wife wdio has taken an active concern in the effects of the community cannot renounce the same. Acts which are simply administrative or conservatory do not come, in tliis article, under the denomination of active concern. Art. 2413. The surviving wife who wishes to preserve the power of renouncing the community of gains must make an inventory within the delays and with the formalities pre- scribed for the beneficiary heir. Art. 2414. She ought also to make her renunciation within the same delays which are allowed for the beneficiary heir to explain his intentions. After the expiration of these 22 338 LOUISIANA. delays she may be, in the same manner, forced to make her decision, and judgment may be rendered against her as a partner, unless she renounces. Art. 2415. The renunciation of the partnership by the wife must be made before a notary or a parish recorder, and two witnesses. Art. 2416. Her linen and clothes shall not in any case be comprised in the inventory; she has a right to take them without any formality. Art. 2417. The widow, above the age of majority, who has allowed a judgment to pass against her as a partner, by a court of general jurisdiction, shall lose the power of re- nouncing. Art. 2418. The widow who has concealed or made away with any of the effects of the partnership or community of gains is declared to be a partner in community, notwith- standing her renunciation. It is the same witli respect to her heirs. Art. 2419. If the widow dies before the expiration of the above fixed delay, without having made or closed the inventory, the heirs shall be allowed, for the purpose of making or closing it, another term of equal length, to begin from the day of the death of the widow, and of thirty days more to deliberate after the inventory shall have been closed. If the widow dies after the inventory was closed, her heirs shall be allowed to deliberate another term of thirty days, to begin from her deatli. They may, however, renounce the partnership or community of gains according to the forms above established. Art. 2420. The wife, separated from bed and board, who has not within the delays above fixed, to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she lias obtained a prolongation from the judge, after the husband was heard or after he was duly summoned. Art. 2421. The creditors of the wife mav attack the re- APPENDIX. 339 nunciation, which may have been made by her or by her heirs with a view to defraud her creditors, and accept the commu- nity of gains in their own names. Art. 2422. The widow, whether she accept or renounce, has a right, during tlie delays which are granted her to make an inventory and deliberate, to receive her mainte- nance and that of her servants out of the provisions in store, and if there be none, she has a right to borrow on account of the common stock, on the condition, however, of using the privilege with moderation. She owes no rent for the residence she may have made during such term in a house appertaining to the community or belonging to the heirs of the husband; and if tlie house which both husband and wife inhabit at the time of the dissolution of the marriage was rented by them, the wife shall not contribute during the same term to the payment of the rent, which shall be taken out of what belongs to the whole. RENUNCIATION BY HEIRS OF WIFE — Art. 2423. In case of the dissolution of the marriage by the death of the wife, her heirs may renounce the partner- ship or community of gains, within the term and according to the forms which the law prescribes to the surviving wife. SEPARATION OF PROPERTY DURING MARRIAGE — Art. 2425. The wife may during the marriage petition against the husband for a separation of property whenever her dowry is in danger, owing to the mismanagement of her husband, or otherwise, or when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims. Art. 2426. The neglect to re-invest the dotal effects of the wife, in cases where the law directs such re-investment, is also sufficient cause for the wife to demand a separation of property. Art. 2427. She must petition for the separation of prop- erty, and it can only be ordered by a court of justice, after hearing all parties. It can in no case be referred to arbitra- 340 LOUISIANA. tioii. Every voluntaiy separation of property is null, both as respects third persons and the husband and wife between themselves. Art. 2428. The separation of property, although decreed by a court of justice, is null if it has not been executed by the payment of the rights and claims of tlie wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-interrupted suit to obtain pa3'ment. Art. 2429. The separation of property obtained by the wife must be published three times in the public newspapers, at farthest within three months after the judgment which ordered the same. If there be no paper published in the place where the judgment is rendered, the publication must be made in that which is published in the place nearest to it. Art. 2430. The wife who has obtained the separation of property may, nevertheless, accept the partnership or com- munity of gains which has existed till that time, if it be her interest so to do, and upon her contributing, in case of ac- ceptance, to the payment of the common debts. She re-takes, also her dowry and all she brought in marriage, or which she acquired separately during the marriage by inheritance or otherwise. Art. 2431. The separation of property does not impart to the wife any of the rights of a surviving wife; but she preserves the right of exercising them in case of tiie death of her husband. Art. 2432. The judgment which pronounces the separa- tion of property is retroactive as far back as the day on which the petition for the same was filed. Art. 2433. The personal creditors of the wife cannot, without her consent, petition for a separation of property between her and her husband. Nevertheless, in case of the failure or discomfiture of the husband, they may exercise the rights of their debtor to the amount of their credits. Art. 2434. The creditors of the husband may object to the separation of property decreed and even executed with APPENDIX. 341 a view to defraud them. They may even become parties to the suit for a separation of property, and be heard against it. Art. 2435. The wife who has obtained a separation of property must contribute, in proportion to her fortune and to that of Ijer husband, both to the household expenses and to those of the education of their children. She is bound to support those expenses alone if there remains nothing to her husband. Art. 2436. The wife separated in property has again the free administration of her estate. She may dispose of h(er movable property and alienate the same. She cannot alienate her immovable property without the consent of her husband, or, if he should refuse it, without being authorized by the judge. Art. 2437. Whenever a marriage shall have been con- tracted in this State and the husband, after such marriage, shall remove or shall have removed to a foreign country with his wife, if the husband shall behave or have behaved towards his wife in said foreign countr}^ in such a manner as would entitle her under our laws to demand a separation of propert}', it shall be lawful for her, on returning to the domicile where her marriage was contracted, to institute a suit there against her husband for the purposes above men- tioned, in the same manner as if they were still domiciliated in said place. In such cases an attorney shall be appointed by the court to represent the absent defendant; the plaintiff shall be entitled to all the remedies and conservatory meas- ures granted by law to married women, and the judgment shall have force and effect in the same manner as if the parties had never left the State. TEXAS. , (References are to Saj'le's Texas Civil Statutes.) WIFE'S SEPARATE PROPERTY — Art. XVI, S 15 (Constitution, 1876.) All property, both real and personal, of the wife, owned or claimed by her 342 TEXAS. before marriage, and that acquired afterward by gift, devise or descent, sliall be her separate property; and laws shall be passed more clearl}^ defining the rights of the wife in relation as well to her separate property as that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property. (Sayle's Texas Statutes, Vol. IV, page 580.) SEPARATE PROPERTY — Art. 2851. All property, both real and personal, of the husband, owned or claimed by him before marriage, and that acquired afterward by gift, devise or descent, as also the increase of all lands thus acquired, shall be his separate property. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, as also the increase of all lands thus acquired, shall be the separate property of the wife; but, during the marriage the husband shall have the sole management of all such property. COMMUNITY PROPERTY — Art. 2852. All j^roperty acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed the community property of the husband and wife, and during the coverture may be disposed of by the husband only. PRESUMPTIONS AS TO — Art. 2853. All the effects which the husband and wife possess at the time the marriage may be dissolved, shall be regarded as common effects or gains, unless tlie contrary be satisfactorily proved. WIFE MAY CONTRACT DEBTS, WHEN — Art. 2854. The wife may Contract debts for necessaries furnished herself or cliildren; and for all expenses which may have been incurred by the wife for the benefit of her separate property; and for such debts suit may be brought in the manner prescribed in Art. 1205. APPENDIX. 343 JUDGMENT AND EXECUTION — Art. 2855. Upon the trial of any suit as provided for in the preceding article, if it shall appear to the satisfaction of the court and jury that the debt so contracted or expenses so incurred were for the purpose enumerated in said article, and, also, that the debt so contracted or expenses so incurred were reasonable and proper, the court shall decree that execu- tion may be levied upon either the common property or the separate property of the wife, at the discretion of the plaintiff. HUvSBAND FAILING TO SUPPORT WIFE, ETC. — Art. 2856. Should the husband fail or refuse to support the wife from the proceeds of the lands she may have, or fail to educate her children as the fortune of the wife would justif}^ she may in either case complain to the county court, which, upon satisfactory proof, shall decree that so much of such proceeds shall be paid to the wife for the support of herself and for the nurture and education of her children as the court may deem necessary. COMMUNITY PROPERTY LIABLE FOR DEBTS — Art. 2857. The community property of the husband and wife shall be liable for their debts contracted during marriage, except in such cases as are specially excepted by law. FEMALE UNDER TWENTY- ONE YEARS EMANCIPATED BY MARRIAGE — Art. 2858. Every female under the age of twenty-one years who shall marr}^ in accordance with the laws of this State, shall, from and after the time of sucli marriage, be deemed to be of full age and shall have all the rights and privileges to which she would have been entitled had she been at the time of her marriage of full age. SCHEDULE, FORM AND CERTIFICATE — Art, 4345. Each woman now married, or who may be hereafter married, may present to any officer authorized by 344 TEXAS. law to take acknowledgments or proof of instruments for record a schedule particularly describing all the property, real and personal, which she now owns and possesses, or which she may own and possess at the time of her marriage, and make her statement under oath before such officer that the property described in the schedule is her separate prop- erty; and, upon such statement being made such officer shall annex to the schedule a certificate of the fact under his hand and seal of office, which certificate shall be suffi- cient evidence for the recorder of any county to record the same. REGISTRATION OF PROPERTY ACQUIRED AFTER MARRIAGE— Art. 4346. Each married woman upon coming into possession of any property, real or personal, to which she had claim at the time of her marriage, or which she may afterwards acquire by gift, devise or descent, shall have the same recorded in the same manner as prescribed in the fore- going article. WHERE MADE — Art. 4347. The registration of the wife's separate prop- erty herein provided for, if real estate, shall be made in the county or counties in which the same or a part thereof is situated; if personal property, in the county or counties where the same remains; and in case such personal property be removed out of the county, the registration must also be made in the county to which the property is removed, within four months after such removal. FORMER REGISTRATIONS CONFIRMED — Art. 4348. ****** REGISTRATION CONCLUSIVE AS TO TITEE, WHEN — Art, 4349. The registration of any schedule of a wife's separate property, made in accordance with the provisions of this chapter, shall be conclusive as against all subsequent creditors of and purchasers from her husband. APPENDIX. 345 ACTIONS INVOLVING WIFE'S SEPARATE PROPERTY— Art. 1204. The husband may sue either alone or jointly with his wife for the recovery of any separate property of the wife, and in case he fail or neglect to do so, she may, by authority of the court, sue for such property in her own name. AGAINST HUSBAND AND WIFE FOR NECESSARIES, ETC.— Art. 1205. The husband and wife shall be jointly sued for all debts contracted by the wife for necessaries furnished herself or children, and for all expenses which may have been incurred by the wife for the benefit of her separate property. FOR WIFE'S DEBTS, ETC.— Art. 1206. The husband and wife shall also be jointly sued for all separate debts and demands against the wife, but in such case no personal judgment shall be rendered against the husband. WHEN HOMESTEAD NOT TO BE PARTITIONED — Art. 2004. The homestead shall not be partitioned * among the heirs of the deceased during the lifetime of the widow, or so long as she may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same. WHEN MAY BE PARTITIONED — Art. 2005. When the widow dies or sells her interest in the homestead, or elects to no longer use or occupy the same as a homestead, and when the proper court no longer per- mits the guardian of the minor children to use and occupy the same as a homestead it may be partitioned among the respective owners thereof, in like manner as other property held in common. 346 TEXAS. SEPARATE AND COMMUNITY HOMESTEAD — Art. 2006. The homestead rights of the widow and chil- dren are the same whether the homestead be the separate property of the deceased or the common property between the widow and the deceased, and the respective interests of such widow and children shall be the same in the one case as in the other. HOMESTEAD NOT LIABLE FOR DEBTS EXCEPT, ETC.— Art. 2007. The homestead shall not be liable for the payment of any of the debts of the estate, except for the purchase money thereof, the taxes due thereon, or for work and material used in constructing improvements thereon; and in this last case only where the work and materials are contracted for in writing, with the consent of the wife, given in the same manner as required in making a sale and con- veyance of the homestead. HOMESTEAD RIGHTS OF vSURVIVING HUSBAND — Art. 2009. On the death of the wife, leaving a husband surviving, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of such surviving husband, or so long as he may elect to use or occupy the same as a homestead. surviving husband or wife; partition of common property- Art. 2128. When any husband or wife shall die leaving any common property, the survivor may at any time after letters testamentary or of administration have been granted, and an inventory, appraisement and list of claims of the estate have been returned, make application in writing to the court which granted such letters for a partition of such common property, which application shall be acted upon at some regular term of the court. APPENDIX. 347 ACTION OF COURT AND BOND IN SUCH CASE — Art. 2] 29. If, upon the hearing of such application, there appear to be an}^ such common property and such surviv- ing husband or wife shall execute and deliver to the county judge an obligation with two or more good and sufficient sureties, payable to and approved by said county judge, for an amount equal to the value of his or her interest in such common property, conditioned for the payment of one-half of all debts existing against such common property, then the county judge shall proceed to make a partition of such common property into two equal moities, one to be delivered to the survivor and the other to the executor or adminis- trator of the deceased ; and all the provisions of this chapter respecting the partition and distribution of estates shall apply to any partition made under the provisions of this article, so far as the same may be applicable. LIEN UPON PROPERTY DELIVERED — Art. 2130. Whenever any such partition shall be made, a lien shall exist upon the property delivered to such sur- vivor to secure the payment of the aforesaid obligation, and such obligation shall be filed with the clerk and recorded in the minutes of the court, and any creditor of said common property may sue in his own name on such obligation and shall have judgment thereon for one-half of such debt as he may establish, and for the other half he shall be entitled to be paid by the executor or administrator of the deceased. COMMON PROPERTY HELD BY EXECUTOR — Art. 2131. Until any such partition of common property is applied for and made as herein provided the executor or administrator of the deceased shall have the right, and it shall be his duty to recover possession of all such common property and hold the same in trust for the benefit of the creditors and others entitled thereto under the provisions of this title. 348 TEXAS. "HOMESTEAD" DEFINED — Art. 2336. The -'homestead" of a family, not in a town or city, shall consist of not more than two hundred acres of land, whicli may be in one or more parcels, with the im- provements thereon ; the homestead in a city, town or village, consisting of a lot or lots, not to exceed in value five thou- sand dollars at the time of their designation as the home- stead, without reference to the value of any improvements thereon ; provided, that the same shall be used for the pur- poses of a home, or as a place to exercise the calling or business of the head of a family; provided, cdso, that any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired. (Const. Art. 16, )^ 51.) COMMUNITY PROPERTY LIABI^E FOR COMMUNITY DEBTS — Art. 2164. The community of the husband and wife, except such as is exempt from forced sale, shall be liable for all debts contracted during marriage. And, in the settle- ment of such community estate it shall be the duty of the survivor, executor or administrator, to keep a separate and distinct account of all the community debts allowed or paid in the settlement of such estate. WHERE THERE IS NO CHILD — Art. 2165. Where the husband or wife dies intestate, leaving no child or children and no separate property, the common property passes to the survivor charged with the debts of the community, and no administration thereon is required. WHERE THERE IS CHILD — Art. 2166. Where the wife dies leaving a surviving hus- band and a child or children, the surviving husband shall have the exclusive management, control and disposition of the common property after her death, in the same manner as during her lifetime, subject to the provisions of this chapter. APPENDIX. 349 APPLICATION FOR COMMUNITY ADMINISTRATION — Art. 2167. The surviving husband shall, within five years after the death of his wife, when there is a child or children, file a written application in the county court of the proper county, stating — 1. The death of his wife and the time and place of her death. 2. That she left a child or children surviving her, giving the name age and residence of each child. 3. That there is a community estate between his deceased wife and himself. 4. Such facts as show the jurisdiction of the court over the estate. 5. Asking for the appointment of appraisers to appraise such estate. DESCENT OF COMMUNITY PROPERTY — Art. 1653. Upon the dissolution of the marriage relation by death, all propert}^ belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased, or their descendants; but if there be a child or children of the deceased or descend- ants of such child or children, then the survivor shall be entitled to one-half of said property, and the other half shall pass to such child or children or their descendants. But such descendants shall inherit only such portion of said propert}' as the parent through whom they inherit would be entitled to if alive. ESTATE DESCENDS CHARGED WITH DEBTS — Art. 1654. In every case the community estate passes charged with the debts charged against it. CALIFORNIA. ( References are to Califoruia Civil Code and Code of Procedure.) AGREEMENTS BETWEEN HUSBAND AND WIFE — § 158. Either husband or wife may enter into any en- gagement or transaction with the other, or with any other 350 CALIFORNIA. person, respecting })roperty wliich either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confi- dential relations with each otlier, as defined by the title on trusts. (Cal. C. C.) AGREEMENTS RELATING TO PROPERTY AND SEPARATION— § 159. A husband and wife cannot by any contract with each other alter the legal relations, except as to propert}'', and except that they may agree in writing to an immediate separation, and maj^ make provision for the support of either of them and of their children during such separation. MUTUAL CONSENT SUFFICIENT CONSIDERATION FOR— § 160. The mutual consent of the parties is a sufficient consideration for such an agreement as is mentioned in the last section. ESTATES RECOGNIZED IN HUSBAND AND WIFE — § 161. The husband and wife may hold property as joint tenants, tenants in common, or as community property. SEPARATE PROPERTY OF WIFE — § 162. All property of the wife owned by her before mar- riage and that acquired afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property. The wife may, without the consent of her husband, convey her separate property. SEPARATE PROPERTY OF THE HUSBAND — § 163. All other property owned by the husband before marriage and that acquired afterwards by gift, bequest, de- vise or descent, with the rents, issues and profits thereof, is his separate property. WHAT IS COMMUNITY PROPERTY— § 164. All other property acquired after marriage by either husband or wife, or both, is community property; but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title APPENDIX. 351 is thereby vested in her as her separate property. And in case the conveyance be to such married woman and her hus- band, or to her and any other person, the presumption is that the married woman lakes the part conveyed to her as tenant in common, unless a different intention is expressed in the instrument; and the i:)resumption in this section men- tioned is conclusive in favor of a purchaser or encumbrancer in good faith, and for a valuable consideration. And in cases where married women have conveyed real property, w^hich they acquired prior to May nineteenth, eighteen hun- dred and eighty-nine, the husbands or their heirs or assigns, of said married women shall be barred from commencing any action to show that said real property was community property, or to recover said real property from and after Jul}^ first, eighteen hundred and ninety-four. (Act of March 3d, 1893, amending § 164.) INVENTORY OF WIFE'S SEPARATE PROPERTY— § 165. A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the acknowledgment or proof of a grant of real prop- erty by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. EFFECT OF FILING INVENTORY, NOTICE — § 166. The filing of the inventory in the recorder's office is notice and prima facie evidence of the title of the wife. COMMUNITY NOT LIABLE FOR WIFE'S SEPARATE DEBTS — § 167. The property of the community is not liable for the contracts of the wife, made after niarriage, unless secured by a pledge or mortgage thereof executed by the husband. WIFE'S EARNINGS EXEMPT FROM LIABILITY FOR HUS- BAND'S DEBTS. § 168. The earnings of the wife are not liable for the debts of the husband. 352 CALIFORNIA. EARNINGS OF WIFE AND MINOR CHILDREN, SEPARATE PROPERTY, WHEN. g 169. The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the sepa- rate property of the wife. SEPARATE PROPERTY OF HUSBAND NOT LIABLE FOR WIFE'S ANTENUPTIAL DEBTS. § 170. The separate property of the husband is not liable for the debts of the wife contracted before the marriage. SEPARATE PROPERTY OF WIFE, WHEN LIABLE FOR DEBTS. § 171. The separate property of the wife is not liable for the debts of the husband, but is liable for her own debts, contracted before or after marriage. COMMUNITY PROPERTY, HUSBAND'S POWER OVER. § 172. The husband has the management and control of the community property, with the like absolute power of disposition, other than testamentar}'^, as he has of his sepa- rate estate; provided, however, that he cannot make a gift of such community property, or convey the same without a valuable consideration, unless the wife, in writing, consent thereto. (Act of March 31, 1891, amending § 172.) DOWER AND COURTESY ABOLISHED — § 173. No estate is allowed the husband as tenant by courtesy upon the death of his wife, nor is any estate in dower allotted the wife upon the death of her husband. HUSBAND'S NEGLECT TO PROVIDE NECESSARIES — § 174. If the husband neglects to make adequate pro- vision for the support of his wife, except in cases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, and re- cover the reasonable value thereof from the husband. WIFE'S ABANDONMENT OF HUSBAND — SUPPORT — § 175. A husband abandoned by his wife is not liable APPENDIX. 353 for her support until she offers to return, unless she was jus- tified, by his misconduct, in abandoning him; nor is he liable for her support when she is living separate from him by agreement, unless such support is stipulated in the agree- ment. WIFE MUST SUPPORT HUSBAND — WHEN — § 176. The wife must support the husband, when he has not deserted lier, out of her separate property when he has no separate property, and there is no community projDerty, and he is unable from infirmity to support himself ALTERING STATUTE BY MARRIAGE SETTLEMENT — § 177. The property rights of husband and wife are governed by this chapter, unless there is a marriage settle- ment containing stipulations contrary thereto. CONTRACTS OR MARRIAGE SETTLEMENTS — § 178. All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. SETTLEMENTS — WHERE RECORDED — § 179. When such contract is acknowledged or proved, it must be recorded in the office of the recorder of every county in whicli any real estate may be situated which is granted qr affected by such contract. EFFECT OF RECORD — NOTICE — § 180. The recording or non-recording of such contract has a like effect as the recording or non-recording of a grant of real property. PROPERTY SUBJECT TO ORDERS OF COURT — § 141. In executing the five preceding sections (§§ 136 to 140 inclusive, relating to maintenance, alimony and the 23 354 CALIFORNIA. disposition of property in and after divorce proceedings), tlie court must resort: (1) To the community property, then, (2) To the separate property of the husband. ALLOWANCES TO WIFE— WHEN WITHHELD FROM HUSBAND'S SEPARATE PROPERTY — § 142. When the wife has either a separate estate or there is community property sufficient to give her ahmony or a proper support, the court, in its discretion, may withhold any allowance to her out of the separate property of the hus- band. WHAT PROPERTY SUBJECT TO CHILDREN'S SUPPORT — § 143. The community property and the separate prop- erty may be subjected to the support and education of the children in such proportions as the court deems just. DISPOSITION OF COMMUNITY PROPERTY AND HOMESTEAD — § 146. In the case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the commu- nity property and the homestead shall be assigned as follows: 1. If the decree be rendered on the ground of adultery or extreme cruelty, the community property shall be assigned to the respective parties in such proportion as the court, from all the facts of the case and the condition of the parties, may deem just. 2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties. 3. If a homestead has been selected from the community property, it may be assigned to the innocent party, either absolutely or for a limited period, subject, in the latter case, to the future disposition of the court, or it may, in the dis- cretion of the court, be divided or be sold and the proceeds divided. 4. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner APPENDIX. 355 of such property, subject to the power of the court to assign it for a limited period to the innocent party. PARTITION AND SALE — § 147. The court, in rendering a decree of divorce, must make such order for the disposition of the community prop- erty and of the homestead as in this chapter provided, and whenever necessary for that purpose, may order a partition or sale of the property and a division or other disposition of the proceeds. DISTRIBUTION AND DESCENT OF — § 1402. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his- descendants, equally, if such descendants are in the same- degree of kindred to the decedent; otherwise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equalh^ sub- ject to his debts, the family allowance, and the charges and expenses of administration. DISSOLUTION AND DESCENT OF ON DEATH OF WIFE — § 1401. Upon the death of the wife the entire community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her by judicial decree for her support and mainte- nance, which portion is subject to her testamentary disposi- tion, and in the absence of such disposition goes to her descendants, or heirs, exclusive of her husband. PROVIDING FOR THE DESCENT OF COMMUNITY PROPERTY WHERE THERE IS NO KINDRED — § 1386, Par. 9. If the decedent be a widow or widower, and leave no kindred, and the estate or any portion thereof was 356 CALIFORNIA. common property of such decedent and his or her deceased spouse while such spouse was living, such common property- shall go the father of such deceased spouse, or if he be dead, to the mother. If there be no father or mother, then such property shall go to the brothers and sisters of such deceased spouse in equal shares, and to the lawful issue of any deceased brother or sister of such deceased spouse, by right of representation. § 1386, Par. 10. If the decedent have no husband, wife, or kindred, and there be no heirs to take his estate, or any portion thereof, under subdivision nine of this section the same escheats to the State for the support of common schools. PARTIES TO ACTIONS— WHEN HUSBAND AND WIFE MUST BE JOINED— EXCEPT — § 370. When a married woman is a party her husband must be joined with her, except: (1) When the action con- cerns her separate property, or her right or claim to the homestead property, she may sue alone. (2) When the action is between herself and her husband, she may sue or be sued alone. (3) When she is living separate and apart from her husband b}" reason of his desertion of her, or by agreement in writing entered into between them, she may sue or be sued alone. (Code of Civil Procedure.) WHEN WIFE MAY BE A PARTY DEFENDANT — § 371. If a husband and wife be sued together the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also. (Code of Civil Procedure.) HOMESTEAD — OF WHAT IT CONSISTS — § 1237. The homestead consists of the dwelling house in which the claimant resides and the land on which the same is situated, selected as in this title provided. (Cal. C. C.) FROM WHAT PROPERTY SEIvECTED — § 1238. If the claimant be married, the homestead may be selected from the community property, or the separate APPENDIX, 357 property of the husband, or, with the consent of the wife, from her separate property. When the claimant is not married, but is the head of a family within the meaning of section one thousand two hundred and sixty-one, the home- stead may be selected from any of his or her property. (Cal. C. C.) SELECTION FROM SEPARATE PROPERTY OF WIFE— WHEN — § 1239. The homestead cannot be selected from the separate property of the wife without her consent, shown by her making or joining in making the declaration of home- stead. (Cal. C. C.) HOMESTEAD— VALUE OF — § 1260. Homesteads may be selected and claimed: (1) Of not exceeding five thousand dollars in value by any head of a family. (2) Of not exceeding one thousand dollars in value by any other person. (Cal. C. C.) RIGHTS OF SURVIVOR TO HOMESTEAD — § 1474. If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community propert}^ or from the separate property of the person select- ing or joining in the selection of the same, it vests, on the death of the husband or wife, absolutely in the survivor. If the homestead was selected from the separate property of either the husband or wife, without his or her consent, it vests on the death of the person from whose property it was selected in his or her heirs, subject to the power of the Superior Court to assign it for a limited period to the family of the decedent. In either case it is not subject to the pay- ment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except as provided in the civil code. (Cal. C. C. P.) HOMESTEAD AND EXEMPT PROPERTY -WHEN TO BE SET ASIDE — § 1465. Upon the return of the inventory (provided for 358 NEVADA. in § 1464), or at any subsequent time during the adminis- tration, the court may on its own motion, or on petition . therefor, set apart for the use of the surviving husband or wife, or in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead selected, designated and recorded; jyrovided, such homestead was selected from the common property or from the separate property of the persons select- ing or joining in the selection of the same. If none has been selected, designated and recorded, or in case the home- stead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate and set apart, and cause to be recorded a homestead for the use of the surviving husband or wife and the minor children ; or, if there be no surviving husband or wife, then for the use of the minor children, in the manner provided in article two of this chapter, out of the common property; or, if there be no common property, then out of the real estate belonging to the decedent. (Cal. C. C. P.) NEVADA. (References are to General Statutes of 1SS5.) 499. All property of the wife owned by her before mar- riage and that acquired by her afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property; and all property of the husband owned by him before marriage and that acquired by him afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is his separate property. Clark V. Clark, 17 Nev. 124. 500. All other property acquired after marriage by either husband or wife, or both, except as provided in sections fourteen and fifteen in this act (§§ 5J2 and 513, j)os^. ), is community property. Youngsworth v. Jewell, 15 Nev. 45. APPENDIX. 359 501. A full and complete inventory of the separate prop- erty of the wife, exclusive of money in specie, must be made out and signed by her, acknowledged or proved in the manner required for the acknowledgement of proof of a con- veyance of real property by an unmarried woman, and shall be recorded, if she be a resident of this State, in the ofRce of the recorder of the county in which she resides; and if there be included in such inventory any real estate lying in any other county, also in the office of the recorder of such other county ; or, if she be not a resident of this State, then in the office of the recorder of each county wherein any portion of the property, real or personal, is situated, located or used; and from time to time thereafter a further and supplemental inventory shall be made out, signed, acknowledged or proved, and recorded in like manner, of all other separate property afterwards acquired by the wife, excepting mone}'' whilst in specie and unconverted, and the rents, issues and profits of her sejiarate property, included in the original or any sub- sequent inventory, if the same be money, so long as it shall remain in specie and unconverted. 502. When the wife is a resident of this State, the filing for record of the inventory of her separate property in the office of the recorder of the county in which she resides is notice of her title to the same, except as to any real estate situate in another county; and as to such real estate, the filing for record of the inventory thereof in the office of the recorder of the county wherein the same is situated, is notice of her title thereto. When the wife is not a resident of this State, the filing for record of the inventory of her separate property in the office of the recorder of the county wherein any portion of such property, real or personal, included in the inventory is situate, located or used, is notice of her title as to all such property situate, located or used in such county. 503. When the wife is a resident of this State, the failure to file for record an inventory of her separate property in the office of the recorder of the county in wdiich she resides, or the omission from the inventory filed for record in such 360 NEVADA. office of any part of such property, except as to real estate situate in another county, is prima facie evidence, as between the wife and purchasers in good faith and for a vahiable consideration from the husband, that the property of which no inventory has been so filed, or which has been omitted from the inventory, is not the separate property of the wife; and as to any real estate situate in another county, the fail- ure to file for record an inventory thereof in the office of the recorder of the county wherein the same is situate, or the omission from the inventory filed for record in such office of any part of such real estate is prima facie evidence, as be- tween the wife and such purchasers as aforesaid, that such real estate of which no inventory has been so filed, or which has been omitted from the inventory, is not her- separate property. When the wife is not a resident of this State, the failure to file for record an inventory of her separate prop- erty in the office of the recorder of the county wherein any portion is situate, located or used, or the omission from the inventory filed in such office of any part of such property, is, as to all such property situate, located or used in that county of which no inventory has been filed, or which has been omitted from the inventory, prima facie evidence, as be- tween the wife and such purchasers as aforesaid, that the same is not her separate i^roperty. 504. The husband has the entire management and con- trol of the community property, with the like absolute power of disposition thereof, except as hereinafter provided, as of his own separate estate. 505. No estate is allowed the husband as tenant by courtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her hus- band. 506. A husband or wife may hold real or personal prop- erty as joint tenants, tenants in common, or as community property. 507. The. wife may, without the consent of her husband, APPENDIX, 361 convey, charge, incumber, or otherwise in any manner dis- pose of her separate property. Cartan, McCarthy & Co. v. David, i8 Nev. 310; Rickards v. Hutchin- son, 18 Nev. 216. 508. Upon the death* of the wife the entire community property belongs without administration to the surviving husband, exce23t that in case the husband shall have aband- oned his wife and lived separate and apart from her without such cause as would have entitled him to a divorce, the half of the community property, subject to the payment of its equal share of the debts chargeable to the estate owMied in community by the husband and wife, is at her testamentary disposition in the same manner as her separate property ; and, in the absence of such disposition goes to her descend- ants equally, if such descendants are in the same degree of kindred to the decedent, otherwise, according to right of rep- resentation ; and in the absence of both such disposition and such descendants, goes to her other heirs at law exclusive of her husband. 509. Upon the death of the husband one-half of the community property goes to the surviving wife and the other half is subject to the testamentary disposition of the husband; and, in the absence of such disposition goes to his surviving children equally; and, in the absence of both such disposition and surviving children the entire commu- nity property belongs, without administration, to the surviving wife, except as hereinfter provided, subject, how- ever, to all debts contracted by the husband during his life that were not barred by the statute of limitation at the time of his death; provided, however, that the homestead set apart by the husband and wife, or either of them, before his death, and such other property as may be exempt by law from execution of forced sale, shall be set apart for the use of the widow and minor heirs, and if no minor heirs for the use of the widow. In case of the dissolution of the com- munity by death of the husband, the entire community property is equally subject to his debts, the family allowance 362 NEVADA. and charges, and expenses of administration; provided, how- ever, that if in the absence of said testamentary disposition the surviving wife and children, and in the absence of such children, the wife shall pay or cause to be paid all indebted- ness legally due from said estate, or secure the payment of the same to the satisfaction of the creditors of said estate; then, and in such case, the said community property shall not be subject to administration. (As amended. Statutes 1881, page 103; 1883, 16.) 510. In case of the dissolution of the marriage by decree of any court of competent jurisdiction, the community property must be equally divided between the parties, and the court granting the decree must make such order for the division of the community property, or the sale and equal distribution of the proceeds thereof as the nature of the case may require; provided, that when the decree of divorce is rendered on the ground of adultery or extreme cruelty, the party found guilty thereof is only entitled to such portion of the community property as the court granting the decree may, in its discretion, from the facts in the case deem just and allow; and such allowance shall be subject to revision, on api^eal, in all respects, including the exercise of discre- tion by the court below. Lake v. Bender, i8 Nev. 361. 5^. The earnings of the wife are not liable for the debts of the husband. 512. The earnings and accumulations of the wife and of her minor children living with her, or in her custody, while she is living separate from her husband, are the sepa- rate property of the wife. 513. When the husband has allowed the wife to appro- priate to her own use her earnings, the same, with the issues and profits thereof, is deemed a gift from him to her, and is, with such issues and profits, her separate property. 514. The separate property of the husband is not liable for the debts of the wife, contracted before the marriage. APPENDIX. 363 515. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage. 516. Except as mentioned in the next section, neither husband nor wife has any interest in the property of the other. 517. Either husband or wife may enter into any con- tract, engagement, or transaction with the other, or with any other person, respecting property, which either might enter into if unmarried, subject in any contract, engagement, or transaction between themselves, to the general rules which control the actions of persons occupying relations of con- fidence and trust towards each other. Cartan v. David, iS Nev. 310. 518. A husband and wife cannot by any contract with each other alter their legal relations, except as to property, and except that they may agree to an immediate separation, and may make provisions for the support of either of them and of their children during separation. 519. The mutual consent of the parties is a sufficient consideration for such agreement as is mentioned in the last section. 520. If the husband neglects to make adequate provision for the support of his wife, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. 521. A husband abandoned by his wife is not liable for her support until she offers to return, unless she was justi- fied by his misconduct in abandoning him. 522. The wife must support the husband out of her separate property, when he has no separate property, and they have no community property, and he, from infirmity, is not able or competent to support himself. 523. When the wife is living separate and apart from her husband she may sue and be sued alone. 364 NEVADA. 524. The property rights of husband and wife are gov- erned by this act, unless there is a marriage contract or set- tlement containing stipulations contrary thereto. 525. All marriage contracts or settlements must be in writing, and executed and acknowledged or proved in like manner as a conveyance of land is required to be executed and acknowledged or proved. 526. When such marriage contract or settlement is ac- knowledged or proved, it must be recorded in the office of the recorder of every county in which any real estate may be situated which is conveyed or affected by such contract. 527. When such marriage contract or settlement is de- posited in the recorder's office for record, it shall, as to all property affected thereby in the county where the same is deposited, impart full notice to all persons of the contents thereof. 528. No such marriage contract or settlement shall be valid as to any real estate, or affect the same, except as be- tween the parties thereto, until it shall be deposited for record with the recorder of the county in which such real estate is situate. 529. A minor, capable of contracting marriage, may make a valid marriage contract or settlement. 530. No estate in the real property a married woman pos- sesses is affected by any conveyance or other instrument, except a will purporting to be executed or acknowledged by her, unless the same be acknowledged by her in the manner that conveyances by married women are required to be acknowledged. 531. A power of attorney of a married woman, author- izing the execution of an instrument conveying or affecting her real property, shall be acknowledged as above men- tioned. 532. A conveyance or other instrument affecting or relating to real estate, except a will made by a married woman, has no validity until acknowledged as above pro- APPENDIX. 365 vided; but when so acknowledged has the same effect as if she were unmarried, 533. An act entitled "An act defining the rights of hus- band and wife," approved March seventh, eighteen hundred and sixty-five, and all other acts and parts of acts in con- flict with this act, are hereby repealed; provided, that no rights already vested, or any proceeding already taken, shall be affected by anything in this act contained. Crow V. Van Sickle, 6 Nev. 146. See 534-538. Sole trader's act. * ' * * * Warren v. Quill, 8 Nev. 218; Beckman v. Stanley, 8 Nev. 257. 3029. When a married woman is a party, her husband shall be joined with her, except that: First. When the action concerns her separate property, she may sue alone. Second. When the action is between herself and her hus- band, she may sue or be sued alone. 3030. If a husband and wife be sued together, the wife may defend for her own right. 539. The homestead, consisting of a quantity of land, together with the dwelling-house thereon and its appurte- nances, not exceeding in value five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any court, for any debt or liability contracted or incurred after November thirteenth, in the year of our Lord one thousand eight hundred and sixty-one, except process to enforce the payment of the pur- chase money for such premises, or for improvements made thereon, or for legal taxes imposed thereon, or for the pay- ment of any mortgage thereon, executed and given by both husband and wife, when that relation exists. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead. Said declaration shall state when made by a married person or persons that they or either of them are married, or if not married, that 366 NEVADA. he or slie is the head of a family, and they or eitlier of them, as the case may be, are, at the time of making such declara- tion, residing with their famil}', or with the person or per- sons under their care and maintenance on the premises, particularly describing said premises, and that it is their mtention to use and claim the same as a homestead, which declaration shall be signed by the party or parties making the same, and acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded; and from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants; jjrovided, that if the prop- erty declared upon as a homestead be the separate property of either spouse, both must join in the execution and acknowledgment of the declaration; and if such property shall retain its character of separate property until the death of one or the other of such spouses, then and in that event the homestead rigiit shall cease in and upon said property, and the same belong to the party (or his or her heirs) to , whom it belonged when filed upon as a homestead; and, provided furtJier, that tenants in common may declare for homestead rights upon their respective estates in land, and the improvements thereon; and hold and enjoy homestead rights and privileges therein, subject to the rights of their co-tenants, to enforce partition of such common property as in other cases of tenants in common. (As amended, Stats. 1879, 140.) Smith V. Slirieves, 13 Nev. 303; Lachman v. Walker, 15 Nev. 422; Child V. Singleton, 15 Nev. 461. 542. Tlie homestead and all other property exempt by law from sale under execution, shall, upon the death of either spouse, be set apart by the court as the sole property of the surviving spouse, for his or her benefit and that of his or her legitimate child or children; and in the event of there being no surviving spouse or legitimate child or children of either, then the property shall be subject to administration and to the payment of his or her debts and liabilities; provided, APPENDIX. 367 that the exemption made by this act and the act of which it is amendatory shall not extend to unmarried persons, except when they have the care and maintenance of minor brothers or sisters, or both, or of a brother's or sister's minor children, or of a father or mother, or of grandparents, or unmarried sisters living in the house with them, and in all cases the exemption shall cease upon the cessation of the terms upon which it is granted; and upon the death of such unmarried person the property shall descend to his or her heirs, as in other cases, unless disposed of by will, subject to adminis- tration and the payment of debts and liabilities; and, pro- vided, furth 67% that no exemption to the surviving spouse shall be allowed in cases where the homestead declaration has been filed upon the separate property of either husband or wife, as provided in section one of this act; provided, nothing in this act shall be held or construed to in any manner affect existing rights or pending litigation; but all such rights and litigation shall be determined by the act before in force, and of which this act is amendatory. (As amended, Stats. 1879, 141.) Estate of David Walley, ii Nev. 260. 494. In granting a divorce, the court shall also make such disposition of the property of the parties as shall ap- pear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it, for the benefit of the children. And all property and pecu- niary rights and interests, and all rights touching the chil- dren, their custody and guardianship, not otherwise disposed of or regulated by the order of the court, shall, by such divorce, be divested out of the guilty party and vested in the party at whose instance the divorce was granted. And if, after the filing of the petition, it shall be made to appear probable to the court or the judge, in vacation, that either party is about to do any act that would defeat or render less effectual any order which the court might ultimately make 368 WASHINGTON. concerning propert}^ or pecuniary interests, an order shall be made for the prevention thereof, to be enforced as such pre- liminary orders are enforced respecting children. Wuest V. Wuest, 17 Nev, 217; Lake v. Bender, adm'r, 18 Nev. 361; see § 510 atite. 496. When the marriage shall be dissolved by the hus- band being sentenced to imprisonment, and when a divorce shall be ordered for the cause of adultery committed by the husband, the wife shall be entitled to the same proportion of his lands and property as if he were dead ; but in other cases the court may set apart such portion for her supi)ort and the support of their children as shall be deemed just and equitable. In any suit for divorce now pending, or which ma}^ hereafter be commenced, the court or judge may, in its discretion, upon application, of which due notice shall have been given to the husband or his attorney, at any time after the filing of the complaint, require the husband to pay such sums as may be necessary to enable Uie wife to carry on or defend such suit, and for her support and the support of the children of the parties during the pendency of such suit; and the court or judge may direct the application of specific property of the husband to such object, and may also direct the payment to the wife for such purpose of any sum or sums that may be due and owing to the husband from any quarter, and may enforce all orders made in this behalf, as is provided in section twenty-four of this act. (As amended, Stats. 1865, 99.) Darrenburger v. Haupt, 10 Nev. 43; Wuest v. Wuest, 17 Nev. 217; I,ake V. Bender, adm'r, 18 Nev. 361. WASHINGTON. (References are to Hill's General Statutes aud Code of Procedure, Vols, i and 2.) MARRIED PERSONS MAY ACQUIRE PROPERTY AS IF UN- MARRIED— § 1408. Every married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose APPENDIX. 369 of every species of property, and to sue and be sued as if he or she were unmarried. ist Hill's Code; Brotton v. Langert, i Wash. 78-81; Littell & S. M. Co. V. Miller, 3 Wash. 480; Board of Trade v. Hayden, 4 Wash. 263; Yesler V. Hochstettler, 4 Wash. 349. CIVIL DISABILITIES OF WIFE ABOLISHED — § 1409. All laws which impose or recognize civil dis- abilities upon a wife, which are not imposed or recognized as existing as to the husband, are hereby abolished, and for any unjust usurpation of her natural or property rights she shall have the same right to appeal in her own individual name to the courts of law or equity for redress and protec- tion that the husband has; provided ahvays, that nothing in this chapter shall be construed to confer upon the wife any right to vote or hold office, except as otherwise provided by law. Brotton v. Langert, i Wash. 79; Littell & S. M. Co. v. Miller, 3 Wash. 480; Board of Trade v. Hayden, 4 Wash. 263. CONTRACTS AND LIABILITIES OF WIFE — § 1410. Contracts may be made by the wife and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried. Littell & S. M. Co. v. Miller, 3 Wash. 480; Board of Trade v. Hayden, 4 Wash. 263. MAY SUE EACH OTHER — ^ 1411. Should either husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and to the same extent as if they were unmarried. Board of Trade v. Hayden, 4 Wash. 263. INJURIES COMMITTED BY MARRIED WOMAN, LIABILITIES FOR — § 1412. For all injuries committed by a married woman damages may be recovered from her alone, and her husband 24 370 WASHINGTON. shall not be responsible therefor, except in case where he would be jointly responsible with her if the marriage did not exist. LIABILITIES FOR DEBTS OF EACH OTHER — ^ 1413. Neither husband nor wife is liable for the debts or liabilities of the other incurred before marriage, nor for separate debts of each other; nor is the rent or income of the separate property of either liable for the separate debts of the other. WIFE'S PROPERTY EXEMPT FROM HUSBAND'S DEBTS — § 480. All real and personal estate belonging to any married woman at the time of her marriage, and all which she may have acquired subsequently to such marriage, or to which she shall hereafter become entitled in her own right, and all her personal earnings, and all the issues, rents and profits of such real estate, shall be exempt from attachment and execution upon any liability or judgment against the husband, so long as she or any minor heir of her body shall be living; provided, that her separate property shall be liable for debts owing by her at the time of her marriage. 2nd Hill's Code; Abbott v. Wetherby, 6 Wash. 507. EXPENSES OF FAMILY, LIABILITY FOR — § 1414. The expenses of the family and the education of the children are chargeable upon the property of both hus- band and wife, or either of them, and in relation thereto they may be sued jointly or separate!}'. ist Hill's Code; Brotton v. Langert, i Wash. 79; Littell & S. M. Co. v. Miller, 3 Wash. 480. SEPARATE PROPERTY OF HUSBAND — § 1397. Property and pecuniary rights owned by the hus- band before marriage, and tliat acquired by him afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, shall not be subject to the debts or contracts of his wife, and he may manage, lease, sell, convey, encum- ber, or devise by will, such property without the wife joining APPENDIX. 371 in sucli management, alienation or encumbrance, as fully and to the same effect as though he were unmarried. Board of Trade v. Hayden, 4 Wash. 263; Eyer's Estate, 7 Wasli. 293. SEPARx\TE PROPERTY OF WIFE — ^ 1398. The property and pecuniary rights of every mar- ried woman at the time of her marriage, or afterwards acquired by gift, devise or inheritance, wnth the rents, issues and profits thereof, shall not be subject to the debts or con- tracts of her husband, and she may manage, lease, sell, con- vey, encumber, or devise by will, such property, to the same extent and in the same manner that her husband can prop- erty belonging to liim. Brotton v. Langert, i Wash. 79; Board of Trade v. Hayden, 4 Wash. 263; Yesler v. Hochstettler, 4 Wash. 349; Abbott v. Wetherby, 6 Wash, 507- COMMUNITY PROPERTY, WHAT IS — OF PERSONALTY, HUS- BAND'S CONTROL. § 1399. Property, not acquired or owned as prescribed in the next two preceding sections, acquired after marriage by either husband or wife, or both, is community property. The husband shall have the management and control of communit}'- personal property, with a like power of dispos- ition as he has of his separate personal property, except he he shall not devise more than one-half thereof. Brotton v. Langert, i Wash. 79; Littell & S. M. Co. v. Miller, 3 Wash. 480; Sadler v. Niesz, 5 Wash. 182; Calhoun v. Leary, 6 Wash. 17; Abbott V. Wetherby, 6 Wash. 507; Lemon v. Waterman, 2 Wash. Ter. 485. COMMUNITY REALTY — WIFE MUST JOIN IN CONVEYANCE OF — SUBJECT TO WHAT DEBTS AND LIENS — § 1400. The husband has the management and control of the community real property, but he shall not sell, con- vey or encumber the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed or en- cumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife; provided, how- ever, that all such community real estate shall be subject to 372 WASHINGTON. the liens of mechanics and others for labor and materials furnished in erecting structures and improvements thereon, as provided by law in other cases, to liens of judgments re- covered for community debts, and to sale on execution issued thereon. Holyoke v. Jackson, 3 Wash. Ter. 235; Andrews v. Andrews, 3 Wash. Ter. 286; Hoover v. Chambers, 3 Wash. Ter. 26; Brotton v. Ivangert, i Wash. 79; Cohnubia National Bank v. Embree, 2 Wash. 331; Ryan v. Ferguson, 3 Wash. 356; Stockand v. Bartlett, 4 Wash 730; Colcord v. Leddy, 4 Wash. 791; Littell & S. M. Co. v. Miller, 3 Wash. 480; Sag- meister v. Foss, 4 Wash. 320; O. I. Co. v. Sagmeister, 4 Wash. 710; Mud- gett V. Clay, 5 Wash. 103; Sadler v. Niesz, 5 Wash. 182; Nuhn v. Miller, 5 Wash. 405; Grippin v. Beuham, 5 Wash. 589; Calhoun v. Leary, 6 Wash. 17; Commercial Bank v. Scott, 6 Wash. 502; Abbott v. Wetherby, 6 Wash. .507; Yesler v. Hochstettler, 4 Wash. 349; Levy v. Brown, 53 Fed. Rep. 568; Gratton v. Webber, 47 Fed. Rep. 852; Hershberger v. Blewett, 46 Fed. Rep. 704. AGREEMENTS AS TO STATUS OF COMMUNITY PROPERTY— § 1401. Nothing contained in any of the provisions of this chapter, or in any law of this State, shall prevent the husband and wife from jointly entering into any agreement concerning the status or disposition of the whole or any por- tion of the community property, then owned by them or afterwards to be acquired, to take effect upon the death of either. But such agreement may be made at any time by the husband and wife by the execution of an instrument in w^riting under their hands and seals, and to be witnessed, acknowledged and certified in the same manner as deeds to real estate are required to be under the laws of the State, and the same may at any time thereafter be altered or amended in the same manner; provided, hoivever, that such agreement shall not derogate from the right of creditors, nor be construed to curtail the powers of the Superior Court to set aside or cancel such agreement for fraud, or under some other recognized head of equity jurisdiction, at the suit of either party. Board of Trade v. Hayden, 4 Wash. 263. SEPARATE EARNINGS OF WIFE — RIGHT TO BRING AND DE- FEND ACTIONS — § 1402. A wife may receive the wages of her personal APPENDIX. 373 labor, and maintain an action therefor in her own name, and hold the same in her own right, and she may prosecute and defend all actions at law for the preservation and pro- tection of her rights and property as if unmarried. Abbott V. Wetherby, 6 Wash. 507. EARNINGS OF WIFE AND MINOR CHIIvDREN ARE SEPARATE PROPERTY, WHEN — § 1403. The earnings and accumulations of the wife and of her minor children living with her, or in her custody while she is living separate from lier husband, are the separate prop- erty of the wife. Abbott V. Wetherby, 6 Wash. 507. HOMESTEAD EXEMPTION — § 481. There shall be also exempt from execution and attachment to every householder, being the head of a family, a homestead not exceding in value the sum of one thousand dollars, while occupied as sucli by the owner thereof, or his or her famil3^ Said homestead may consist of a house and lot or lots in any city, or of a farm consisting of any num- ber of acres, so that the value of the same sliall not exceed the aforesaid sum of one thousand dollars. Such homestead may be selected at any time before sale. 2nd Hill's Code; McMillan v. Man, i Wash. 26, 23 Pac. 441; Philbrick V. Andrews, 8 Wash. 7, WHEN HOMESTEAD NOT EXEMPT— § 482. When any person dies seized of a homestead, leaving a widow, or husband, or minor children, the sur- vivor sliall be entitled to the homestead; but in case there be neither surviving husband, widow, nor children, the said homestead shall be liable for the debts of the deceased. 2nd Hill's Code; McMillan v. Man, i Wash. 26, 23 Pac. 441. HOMESTEAD, RIGHT TO SELECT FROM WHAT PROPERTY— § 1404. Tlie husband cannot select a homestead from the separate property of the wife, nor the wife from the separate property of the husband, but either may select and hold a homestead from his or her separate property, and 374 WASHINGTON. the husband ma}' select a homestead from the community property. But. if the husband neglect or refuse to select such homestead, then the wife may select the same; provided, that but one homestead shall be selected or held by husband or wife, and it must embrace the dwelling house in which one or both of them reside. Coliimbia National Bank v. Embree, 2 Wash. 331. WHEN HUSBAND AND WIFE MUST BE JOINED — § 136. When a married woman is a party her husband must be joined with her, except: (1) When the action con- cerns her separate property, or her right or claim to the homestead property, she may sue alone. (2) When the action is between herself and her husband, she may sue or be sued alone. (3) When she is living separate and apart from her husband, she may sue or be sued alone. 2nd Hill's Code; Hawkins v. Front St. C. Co., 3 Wash. 596, 28 Pac. 102 1. WHEN HUSBAND AND WIFE MAY JOIN — § 137. Husband and wife may join in all causes of action arising from injuries to the person or character of either or both of them, or from injuries to the property of either or both of them, or arising out of any contract in favor of either or both of them. If a husband and wife be sued together, the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also. And she may defend in all cases in which she is in- terested, whether she is sued with her husband or not. 2nd Hill's Code; Hawkins v. Front St. C. Co , 3 Wash. 596, 28 Pac. 1021. COMMUNITY INTEREST SUBJECT TO MECHANICS' LIENS — Laws 1893, p. 38. The claim of lien, when filed as re- quired by this act, shall be notice to the husband or wife of a person who appears of record to be the owner of the prop- erty sought to be charged with the lien, and shall subject all community interest of both husband and wife to said lien. Huntley's Code, § 1247; Cattell v. Ferguson. 3 Wash. 541; Sagmeister V. Foss, 4 Wash. 320; L. & S. M. Co. v. Miller, 3 Wash. 480. APPENDIX. 375 GIFTS AND CONVEYANCES BETWEEN HUSBAND AND WIFE — § 1443. A husband may give, grant, sell, or conve}^ directly to his wife, and a wife may give, grant, sell, or con- vey directly to her husband his or her community right, title, interest, or estate in all or any portion of their commu- nity real propert3^ And every deed made from husband to wife, or from wife to husband, shall operate to divest the ' real estate therein recited from any or every claim or de- mand as community property, and shall vest the same in the grantee as separate property. The grantor in all such deeds, or the party releasing such community interest or estate, shall sign, seal, execute, and acknowledge the deed as a single person, without the joinder therein of the married party therein named as grantee; j^'^'ovided, hoivever, that the conveyances or transfers hereby authorized shall not affect any existing equit}^ in favor of creditors of the grantor at the time of such transfer, gift, or conveyance; and provided furtJier, that any deeds of gift, conveyances or releases of community estate by or between husband and wife hereto- fore made, but in which the husband and wife have not joined as grantors, said deeds, where made in good faith and without intent to hinder, delay, or defraud creditors, shall be and the same are hereby fully legalized as valid and binding. Board of Trade v. Hayden, 4 Wash. 263. TRANSACTIONS BETWEEN HUSBAND AND WIFE — BURDEN OF PROOF — § 1455. In every case where any question arises as to the good faith of any transaction between husband and wife, whether a transaction between them directly or by interven- tion of third person or persons, the burden of proof shall be upon the party asserting the good faith. Board of Trade v. Hayden, 4 Wash. 263. POWER OF ATTORNEY OF SPOUSES, TOUCHING SEPARATE PROPERTY — § 1444. A husband or wife may make and execute powers of attorney for the sale, conveyance, transfer or encumbrance 376 WASHINGTOX. of his or her separate estate, both real and personal, without the other spouse joining in the execution thereof. Such power of attorney shall be acknowledged and certified in the manner provided by law for the conveyance of real estate. Nor shall anything herein contained be so construed as to prevent either husband or wife from appointing the other his or her attorney in fact for the purposes provided in this section. Board of Trade v. Hay den, 4 Wash, 263. COVEYANCES, HOW EXECUTED UNDER POWER — § 1445. Any conveyance, transfer, deed, lease or other encumbrances executed and acknowledged under and by vir- tue of such power of attorney shall be executed, acknowl- edged and certified in the same manner as if the person making such power of attorney had been unmarried. POWER OF ATTORNEY TOUCHING COMMUNITY PROPERTY— § 1446. A husband may make and execute a letter of attorney to the wife, or the wife may make and execute a letter of attorney to the husband, authoriziug the sale or other disposition of his or her community interest or estate in the community property, and as such attorney in fact to sign the name of such husband or wife to any deed, con- veyance, mortgage, lease, or other encumbrance, or to any instrument necessary to be executed by which the property conveyed or transferred shall be released from any claim as community property. And either said husband or said wife may make and execute a letter of attorney to any third per- son to join with the other in the conveyance of any interest either in separate real estate of either or in the community estate held by such husband or wife in any real property. And both husband and wife owning community property may jointly execute a power of attorney to a third person authorizing the sale, encumbrance, or other disposition of community property, and so execute the necessary convey- ance or transfer of said real estate. Board of Trade v. Hayden, 4 Wash. 263; Yesler v. Hochstettler, 4 Wash. 349. APPENDIX, 377 PURCHASER OF REAL PROPERTY GETS TITLE CLEAR OF CLAIMS NOT APPEARING OF RECORD, WHEN — § 1448. Whenever an}' person, married or single, having in his or her name the legal title of record to any real estate, shall sell or dispose of the same to an actual bona fide pur- chaser, a deed of such real estate from the person holding such legal record title to such actual bona fide purchaser shall be sufficient to convey to and vest in such purchaser the full legal and equitable title to such real estate free and clear of any and all claims of any and all persons what- soever not appearing of record in the auditor's office of the county in which such real estate is situated. INVENTORY OF SEPARATE PROPERTY, EFFECT OF — § 1449. A husband or wife having an interest in real estate by virtue of the marriage relation, the legal title of record to which real estate is or shall be held by the other, may protect such interest from sale or disposition by the husband or wife, as the case may be, in whose name the legal title is held, by causing to be filed and recorded in the auditor's office of the county in which such real estate is situated an instrument in writing setting forth that tlie person filing such instrument is the husband or wife, as the case may be, of the person holding the legal title to the real estate in question, describing such real estate and the claim- ant's interest therein ; and when thus presented for record such instrument shall be filed and recorded by the auditor of the county in which such real estate is situated, in the same manner and with like effect as regards notice to all the world, as deeds of real estate are filed and recorded. And, if either husband or wife fails to cause such an instrument to be filed in the auditor's office in the county in which real estate is situated, the legal title to which is held b}^ the other, within a period of ninety days from the date when such legal title has been made a matter of record, any actual, bona fide purchaser of such real estate from the person in whose name the legal title stands of record receiving a deed of such real estate from the person thus holding the legal 378 WASHINGTON. title, shall be deemed and held to have received the full legal and equitable title to such real estate free and clear of all the claim of the other spouse. CLOUD UPON TITLE, WHAT IS AND HOW REMOVED — >j 1450. The instrument in writing provided for in the last preceding section shall be deemed to be a cloud upon the title of said real estate and may be removed by the release of the party filing the same, or by any court having jurisdiction in the county where said real estate is situated, whenever it shall appear to said court that the real estate described in said instrument is the separate property of the j)erson in whose name the title to the said real estate or any part thereof appears to be vested from the conveyances on record in the office of the auditor of the county where said real estate is situated. TIME ALLOWED FOR FILING INVENTORY OF SEPARATE PROPERTY — § 1451. In so far as this act affects married persons having already acquired and now holding real estate under existing laws, a period of three months from the date at which this act shall take effect is hereb}^ allowed to such persons within which to comply with its provisions. Yesler v. Hoclistettler, 4 Wash. 349. TENANCY IN DOWER AND BY COURTESY ABOLISHED — ^ 1405. No estate is allowed the husband as tenant by courtesy upon tlie death of his wife, nor is any estate in dower allotted to the wife upon the death of the husband. Richards v. Bellingham Bay Land Co. 47 Fed. Rep. 854; Same, 54 Fed Rep. 209. LIBERAL CONSTRUCTION — § 1406. The rule of common law that statutes in derro- gation thereof are to be strictly construed has no applica- tion to this chapter. Tliis chapter establishes the law of this State respecting the subject to which it relates, and its provisions and all proceedings under it shall be liberally construed with a view to affect its object. APPENDIX. 379 I,AW NOT RETROACTIVE — § 1407. This chapter (Ch. II, Tit. 16, 1st H. C.) shall not be construed to operate retrospect! vel}', and any right established, accrued, or accruing, or in any thing done prior to the time this chapter goes into effect, shall be governed by the law in force at the time such right was established or accrued. DISTRIBUTION OF vSEPARATE AND COMMUNITY PROPERTY ON DIVORCE. § 771. In granting a divorce, the court shall also make such disposition of the property of the parties as shall ap- pear just and equitable, having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make pro- vision for the guardianship, custody, and support and edu- cation of the minor children of such marriage. 2nd Hill's Code; Webster v. Webster, 2 Wash. 419; Fields v. Fields, 2 Wash. 441; Philbrick v. Andrews, 8 Wash. 7. RULE OF DESCENT OF COMMUNITY PROPERTY— § 1481. Upon the death of either husband or wife, one- half of the community property shall go to the survivor, subject to the community debts, and the other half shall be subject to the testamentary disposition of the deceased hus- band or wife, subject also to the community debts. In case no testamentary disposition sliall have been made by the deceased husband or wife of his or her half of the commu- nity property, it shall descend equally to the legitimate issue of his, her, or their bodies. If there be no issue of said deceased living, or none of their representatives living, then the said community property shall all pass to the sur- vivor, to the exclusion of collateral heirs, subject to the community debts, the family allowance, and the charges and expenses of administration. Columbia National Bank v. Embree, 2 Wash. 331; Ryan v. Ferguson 3 Wash. 356; Morgan v. Bell, 3 Wash. 554; Hill v. Hill, 7 Wash. 409; In re Eyer's Estate, 7 Wash. 291; Hill v. Young, 7 Wash. 33. 380 WASHINGTON. PROBATE HOMESTEAD — § 972. When a person shall die, leaving a widow, or minor child or children, the widow, child or children shall be entitled to remain in possession of the homestead, and of all the wearing apparel of the family, and of all the house- hold furniture of the deceased ; and if the head of the family in his lifetime had not complied with the provisions of the law relative to the acquisition of a homestead, the widow, or the child or children, may comply with such provisions, and shall be entitled on such compliance to a homestead as now provided by law for the head of a family, and the same shall be set aside for the use of the widow, child or children, and shall be exempt from all claims for the payment of any debt, whether individual or community. Said homestead shall be for the use and support of said widow, child or chil- dren, and shall not be assets in the hands of any adminis- trator or executor for the debts of the deceased, whether individual or community. 2nd Hill's Code; McMillan v. Man, i Wash. 26; State v. Lichtenberg, 4 Wash. 231; In re Eyer's Estate, 7 Wash. 292. COURT TO SET APART EXEMPT PROPERTY FOR WIDOW AND CHILDREN — § 973. In case of the appointment of an executor or ad- ministrator upon the death of the husband, as mentioned in the last preceding section, the court shall, without cost to the widow, minor child or children, set apart for the use of such widow, minor child or children, all the property of the estate by law exempt from execution. If the amount thus exempt be insufficient for the support of the widow and minor child or children, the court shall make such further reasonable allowance out of the estate as may be necessary for the main- tenance of the family according to their circumstances, during the progress of the settlement of the estate. 2nd Hill's Code. FAMILY ALLOWANCE HAS PREFERENCE — § 974. Any allowance made by the court in accordance with the provisions of the preceding section shall be paid by APPENDIX. 381 the executor or administrator in preferaiice to all charges, except funeral charges and expenses of administration. 2nd Hill's Code. DISTRIBUTION OF PROPERTY SET APART FOR USE OF FAM- ILY— § 975. When property shall have been set apart for the use of the family, in accordance with the provisions of this chapter, if the deceased shall have left a widow and no minor children, such property shall be the property of the widow; if he shall have left also a minor child or children, one-half to the widow and the remainder to such child, or in equal shares to such children, if there are more than one; if there be no widow, then the whole shall belong to the minor child or children. 2nd Hill's Code. DISPOSITION OF COMMUNITY REAL ESTATE FOR PAYING EXISTING DEBTS IN CASES OF INSANITY— § 6. In all cases where guardians have been or may hereafter be appointed for an insane person or persons, 7ion compos mentis, under the provisions of this act (act approved March 11, 1893), and who own or may hereafter own com- munity real estate, the husband or wife of such insane person or persons, non comjws mentis, under the order of the court, may join with the guardian in the execution of deeds or mortgages for the disposition or encumbrance of such estate, and the guardian shall upon application to the court for that purpose be authorized to sell or mortgage the estate or interest of said insane person or persons, non compos mentis, for the purpose of paying the debt or providing for the support or maintenance of such ward, or the wife of such ward, or for the better investment of the proceeds of such estate. I 1678, Huntley's Code; Laws 1893, page 288, I 6. FAILURE TO PROVIDE FOR DEBTS — § 7. In all cases where community debts exist and the husband or wife of any insane person or persons, non compos 382 WASHINGTON. mentis, under guardianship shall fail or refuse for sixty days after an order of the court to join the said guardian in a sale, or conveyance, or mortgage of the said community property of the said insane person or persons, non compos mentis, found necessary by the court for the payment of such debts, any creditor may commence his action by attachment against any such insane person or persons, non compos mentis, and the husband or wife of the said insane person or persons, non compos mentis, and the guardian provided for in this act; provided, that any suit or suits which may have heretofore or may hereafter be brought for the purpose of subjecting the property of such insane person or persons, non compos mentis, to the payment of the debts of such insane person or persons, non compos mentis, shall be consolidated, and in case the writs of attachment levied in such actions shall not have been levied upon all community property of such insane person or persons, non compos mentis, alias writs of attachment may issue and successive levies may be made of them to cover and bring into court all of the property of such insane person or persons, non compos mentis, and the husband or wife of either. Such action may be brought only in the court granting the letters of guardianship, and writs of attachment may issue to any county in this State where the said insane person or persons, non compos mentis, may have any property. All known creditors, whether secured by mortgage or otherwise, shall be made parties to such action, and all suits or actions brought for the purpose of enforcing any mortgage or lien shall be consolidated with said action. All creditors shall be made parties to such action and the same shall be prosecuted for the benefit of all creditors, whether they may be made parties or not, and the person so bringing the action herein provided for shall share pro rata with all other creditors, and upon the trial of such action the court may, upon proofs, render such judg- ment as may be necessary for the protection of all parties, and shall settle and decree the priorities between creditors. The guardian may employ counsel in any such action, and APPENDIX. 383 the compensation of such counsel shall be fixed by the court and taxed as a part of the costs in such action. After judg- ment the court shall order the community propert}' of such insane person, or persons non compos mentis, sold, and under the order of sale in such action the separate property of such insane person, or persons non compos mentis, shall also be sold if the same shall be found by the court to be necessary to pay the debts of such insane person, or persons non compos mentis, and the proceeds of such sale shall be paid into court for distribution according to the priorities as decreed by the court, and an}^ residue or overplus remaining in the court after paying all tlie debts found due shall be paid over to the guardian. This act shall not suspend or abrogate the existing liens of any attachment, mortgage, or other lien, and all such liens shall merge into the judgment of the court rendered in such action according to the priority of each. The court may order all or such part of the commu- nity and separate property of the said insane person, or per- sons of unsound mind, as it may deem necessary for the paj^ment of the judgment rendered, to be sold, and successive sales may be made under such judgment until an amount sufficient to pay such judgment is realized. All such sales shall be confirmed by the court as in cases of mortgage or other sales, and the court may, if it deem the amount bid at any sale inadequate, order a re-sale of any property sold under said order. Sections 8 and 9 provide for the release of sureties on bond of guardian and for appointment of foreign guardian. Laws of 1893, page 288. See Abbott's Real Prop. Stat. pp. 471-486, for the various enactments relating to the property rights of married persons in Washington. See also act of December 2, 1S69, Laws Wash. Ter. 1869, p. 318; act of November 29, 1871, Laws Wash. Ter. 1871, p. 67; act of November 5, 1873, repealing act of November 29, 1871, Laws Wash. Ter. 1873, P- 4^6; act of November 14, 1873, re-enactment of law of 1869, Laws Wash. Ter. 1873, p. 450. [It will be noticed that for the space of several days, from No- vember 5 to November 14, 1873, no law existed on the subject of property rights of married persons.] Act of November 12, 1875, as to descent of community property, Laws Wash. Ter. 1875, p 53; act of November 14, 1879, Laws Wash. Ter. 1S79, p. 77; Code Wash. Ter. 1881, g? 2396-2418. 384 IDAHO. IDAHO. (References are to Revised Statutes of 1SS7. ) § 2493. Husband and wife contract toward each other obligations of mutual respect, fidelity and support. § 2494. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. § 2495. All property of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, is her separate property. § 2496. All property owned by the husband before mar- riage, and that acquired afterwards by gift, bequest, devise, or descent, is his separate property. § 2497. All other property acquired after marriage by eitlier husband or wife, including the rents and profits of the separate property of the husband or wife, is community property; unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use; in which case the management and disposal of such rents and profits belong to the w4fe, and they are not liable for the debts of the husband. § 2498. The husband has the management and control of the separate property of the wife, during tlie continuance of the marriage, but no sale or otlier alienation of any part of such property can be made, nor any lien or incumbrance created thereon, unless by an instrument in writing, signed by tlie husband and wife, and acknowledged by her upon an examination, separate and apart from the husband, as upon a conveyance of real estate. § 2499. If the wife has just cause to apprehend that her Imsband lias mismanaged or wasted, or will mismanage or waste, her separate property, she or any other person in her behalf, may apply to the district court for the appointment of a trustee to take charge of and manage her separate estate; APPENDIX. 385 such trustee may, for good cause shown, be, from time to time, removed by the court, and another appointed in his place. Before entering upon the discharge of his trust he must execute a bond with sufficient sureties, to be approved by the court for the performance of his duties. In case of the appointment of a trustee for the wife, he must account for and pay over to the husband and wife, or either of them, the income and profits of the wife's estate in such manner and proportion as the court may direct. § 2500. A full and complete inventory of tlie separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the acknowledgment or proof of a conveyance of real property by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. § 2501. The filing of the inventory in the recorder's office is notice and priiniia facie evidence of the title of the wife. § 2502. The earnings and accumulations of the wife and of her minor children living with her or in her custody while she is living separate from her husband are the separate property of the wife. § 2503. The separate property of the husband is not liable for the debts of the wife contracted before tlie mar- riage. § 2504. The separate property of the wife is not liable for the debts of her husband, but is liable for lier own debts contracted before or after marriage. § 2505. The husband lias the management and control of the community property, with the like absolute power of disposition, other than testamentary, as he has of his sepa- rate estate ; but such power of disposition does not extend to the homestead or that part of the common property occu- pied or used by the husband and wife as a residence. 25 386 IDAHO. § 2506. No estate is allowed the husband as tenant by courtesy upon the death of his wile, nor is any estate in dower allotted to the wife upon the death of her husband. § 2507. The wife must support the husband out of her separate property when he has no separate property, and they no community property, and he from infirmity is not able or competent to support himself. § 2508. The property rights of husband and wife are governed by this chapter, unless there is a marriage settle- ment containing stipulations contrary thereto. § 2509. All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as conveyances of land are required to be ex- ecuted and acknowledged or proved. § 2510. When such contract is acknowledged or proved it must be recorded in the office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract. § 2511. The recording or non-recording of such contract has a like effect as the recording or non-recording of a con- veyance of real property. § 2512. A minor capable of contracting marriage may make a valid marriage settlement. § 3035. Tiie homestead consists of a dwelling house, in which the claimant resides, and the land on which the same is situated, selected as in this title provided. § 3036. If the claimant be married, the homestead may be selected from the community property or the separate property of the husband, or, with the consent of the wife, from her separate })roperty. When the claimant is not mar- ried, but is the head of a family, the homestead may be selected from any of iiis or her property. § 3037. The homestead cannot be selected from the separate property of the wife without her consent, shown by her making the declaration of homestead. § 3073. From and after the time the declaration is filed APPENDIX. 387 for record the premises therein described constitute a home- stead. If the selection was made by a married person from the community property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title. In other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the probate court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, except as provided in this title. § 4093. When a married woman is a party her husband must be joined with her, except: 1. When the action concerns her separate property or her right or claim to the homestead property, she may sue alone. 2. When the action is between herself and her husband, she may sue or be sued alone. 3. When she is living separate and apart from her hus- band, by reason of his desertion of her, or by agreement in writing entered into between them, she may sue or be sued alone. § 4094. If a husband and wife be sued together, the wife may defend her own right, and if the husband neglect to defend she may defend for his right also. § 57 12. Upon the death of the wife the entire community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her by judicial decree for her support and mainte- nance, which portion is subject to her testamentary dispos- ition, and in the absence of such disposition goes to her descendants or heirs, exclusive of her husband. § 5713. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same 388 ARIZONA. degree of kindred to the decedent; otherwise, according to the right of representation ; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the hus- band. 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. ARIZONA. ( References are to Revised Statutes of Arizona, 1SS7.) SEPARATE PROPERTY OF HUSBAND AND WIFE — 2100. All property both real and personal of the hus- band owned or claimed by him before marriage, and that acquired afterward, by gift, devise, or descent, as also the increase, rents, issues, and profits of the same, shall be his separate property, and all property both real and personal of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, as also the increase, rents, issues and profits of the same, shall be her separate property. EARNINGS OF WIFE — 2101. The earnings and accumulations of the wife and of her minor children in her custody wliile she has lived or may live separate and apart from her husband, shall also be the separate property of the wife. COMMUNITY PROPERTY— 2102. All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, or earned by the wife and her minor chil- dren, while she has lived or may live separate and apart from her husband, shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only. APPENDIX. 389 MANAGEMENT AND LIABILITY OF SEPARATE PROPERTY OF WIFE — 2103. Married women of the age of twenty-one years and upwards shall have the sole and exclusive control of their separate property, and the same shall not be liable for the debts, obligations or engagements of the husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by them in the same manner and with like effect as if they were unmarried. RIGHTS OF MARRIED WOMEN — 2104. Hereafter married women of the age of twenty-one years and upwards shall have the same legal rights as men of the age of twenty-one years and upwards, except the right of suffrage and of holding office, and except the right to make contracts binding the common property of the hus- band and wife; and shall be subject to the same liabilities as men of the age of twenty-one years and upwards, but no part of this section shall be so construed as to prohibit women from voting at school elections or hold office as school trustees as now provided by law. SEPARATE PROPERTY OF SPOUSES EXEMPT FOR DEBTS OF THE OTHER — 2105. The separate property of the husband or wife shall not be liable for the debts of the other contracted before marriage. COMMUNITY PROPERTY LIABLE FOR WHAT DEBTS — 2106. The community property of the husband and wife shall be liable for the community debts contracted by the husband during marriage, except in such' cases as are specially excepted by law. WIFE MAY CONTRACT FOR NECESSARIES — 2107. The wife may contract debts for necessaries for herself and children upon the credit of her husband, in which case she and her husband must be sued jointly. 390 ARIZONA. WHAT PROPERTY vSUBJECT TO — 2108. Upon the trial of any suit as provided for in the preceding section the court sliall decree that the execution be levied first, upon the common property; second, upon the separate property of the husband; third, upon the separate property of the wife. RIGHTS OF NON-RESIDENTS — 2109. The marital rights of persons married out of this territory who may remove to this territory, shall, in regard to property acquired in this territory, during the marriage, be regulated by the laws of this territory. RIGISTRATION OF SEPARATE PROPERTY — 2610. When by a marriage contract either party grants to the other any property or rights to property, whetlier such rights be in esse or expectancy, for such grant to be valid as to the subsequent purchasers or creditors of the grantor the said contract must be acknowledged by the grantor or proved by at least one witness and recorded in the recorder's office of the county in which said married parties may reside. WHAT PROPERTY MAY BE RIGISTERED — 2611. All property, real and })ersonal, which may be owned or claimed at the time of marriage by any woman, or which she may acquire after marriage b}' gift, devise, descent or otherwise, may be registered as ])erein directed. SCHEDULE, HOW EXECUTED — 2612. Each woman now married, or who may be here- after married, may present to any officer authorized by law to take acknowledgements or proof of instruments for record a schedule particularly describing all the propert}', real and personal, which she now owns and possesses, or which she may own and possess at the time of her marriage, and make her statement under oath before such officer that the prop- erty described in the schedule is her separate property; and upon such statement being made such officer shall annex to the schedule a certificate of the fact under his hand and seal APPENDIX. 391 of office, which certificate shall be sufficient evidence for the recorder of any county to record the same. PROPERTY SUBSEQUENTLY ACQUIRED MAY BE REGISTERED— 2613. Each married woman upon coming into posses- sion of any property, real or personal, to which she had claim at the time of her marriage, or which she may afterwards acquire by gift, devise, descent or otherwise, may have the same recorded in the same manner as prescribed in the foregoing section. REGISTRATION, WHERE MADE — 2614. The registration of the wife's separate property herein provided for, if real estate, shall be made in the county or counties in which the same or a part thereof is situated; if personal property, in the county or counties where the same remains; and in case such personal property be re- moved out of the county, the registration must also be made in the county to which the property is removed within four months after such removal. EORMER REGISTRATIONS PERPETUATED — 2615. All registrations of the wife's separate property which have been made heretofore shall be deemed good and valid under this act; provided, said registrations were made in accordance with the laws then in force. EFFECT OF REGISTRATION — 2616. The registration of any schedule of a wife's sepa- rate property, made in accordance with the provisions of this act, shall be conclusive as against all subsequent cred- itors of and purchasers from her husband. FAILURE TO REGISTER, EFFECT OF — 2617. The six preceding sections are for the benefit of married women, and a failure by a married woman to regis- ter a schedule of her separate property as hereinbefore pro- vided shall not affect her rights any more than if the same had never been passed. 392 ARIZONA. HOMESTEAD, EXTENT OF — 2071. Every person who is the head of a family may hold as a homestead, exempt from execution and forced sale, real property to be selected by him or her not exceeding in value the sum of $4,000.00. BY WHOM SELECTION MADE — 2073. The claim of homestead provided for in this act may be made by the husband, or by his wife, or by any un- married person who is the head of a family, or by any one having charge of the premises in behalf of the owner thereof, if such owner be entitled to claim a homestead. 2074. If the claimant be married the homestead may be selected from the community property or from the sepa- rate property of the husband, or from that of the wife, but in the latter case the wife must join with the husband in making the claim. RESTRAINT ON ALIENATION OF — 2076. A married man shall not sell or lease the home- stead, or create any lien thereon, without being joined by his wife. HOMESTEAD, IN WHOM VESTS ON DISSOLUTION OF COMMU- NITY — 1100. If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property, it vests, on the death of the husband or wife, abso- lutely in the survivor. If the homestead was selected from the separate property of either husband or wife, it vests, on the death of the person from whose property it was selected, in his or her heirs, subject to the power of the probate court to assign it for a limited period to the family of the deced- ent. In either case it is not subject to the payment of any debt or liability contracted by or existing against the hus- band and wife, or either of them, previous to or at the time of the death of such husband or wife, except as provided in this code. APPENDIX. 393 DISTRIBUTION ON DIVORCE — 2114. The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest him or herself of the title to separate property. HUSBAND'S POWERS SUSPENDED PENDING DIVORCE — 2117. On and after the day on which the action for divorce shall be brought it shall not be lawful for the hus- band to contract any debts on account of the community, nor to dispose of the property belonging to the same; and any alienation made by him after that time shall be null and void, if it be proved to the satisfaction of the court that such alienation was made with a fraudulent view of injuring the rights of the wife. INVENTORY MAY BE HAD BY WIFE PENDING DIVORCE — 2118. At any time during a suit for divorce, the wife may for the preservation of her rights, require an inventory and an appraisement to be made of all community property and all her separate property, which is in the possession of the husband, and may obtain an injunction restraining him from disposing of any part thereof in an}'- manner. TEMPORARY ORDERS — 2119. Pending any suit for divorce the court or tlie judge thereof may make such temporary orders respecting the property and parties as shall be deemed necessary and equitable. DESCENT AND DISTRIBUTION OF COMMUNITY PROPERTY— 1467. Upon the dissolution of the marriage relation by death, all the common property belonging to the commu- nity estate of the husband and wife shall go to the survivor if the deceased have no child or children; but if the de- 394 LAWS OF SPAIN AND MEXICO. ceased have a child or children, his survivors shall be enti- tled to one-half of said property and the other half shall pass to the child or children of the deceased. J 468. In every case the community estate passes charged with the debts against it. LAWS OF SPAIN AND MEXICO. (References are to Schmidt's Civil Law of Spain and Mexico.*) Art. 36. Husband and wife owe each other mutual fidel- ity, aid, and carnal cohabitation. Art. 37. The husband is the head of the family, and must provide for its wants. Art. 38. The wife must obey her husband, and reside where he thinks proper. The authority of the husband, however, is not one of violence, but of protection. Art. 39. The wife participates in the honors and digni- ties of the husband. Art. 40. The husband exercises in his own name all the the civil actions of the wife, and administers all her property, enters into all contracts, accepts or renounces all inheritances and donations, appears in court both as plaintiff and defend- ant, alienates as he pleases his own property, and even that of his wife, in manner explained in the 2d section, chapter 4 of the present title. (Arts. 51 to 55 inclusive.) Art. 41. The wife cannot exercise any of the foregoing powers without the express authority of her husband, and should she do so her acts are null. Nevertheless, she may accept, under the benefit of inventory, all inheritances whether testamentary or ah intestato. Art. 42. The judge has the power to grant to the wife authority to do all the foregoing acts, when the husband im- properly withholds his consent, and in cases of the absence * The author is indebted for the following extracts to Gustavus Schmidt's valuable compilation on the Civil Law of Spain and Mexico, published at New Orleans in 1851. APPENDIX. 395 of the husband, when delay may be attended with danger, Akt. 43. The law recognizes a partnersliip between the husband and wife as to the property acquired during mar- riage, which exists until expressly renounced in the manner prescribed in section 3. (Arts. 56 to GQ inclusive.) Art. 44. To this community belong: 1. All the property of whatever nature which the spouses acquire b}^ their own labor and industry. 2. The fruits and income of the individual property of the husband and wife. 3. Whatever the husband gains by the exercise of a profession or office, e.g. as judge, lawyer, physician, etc. 4. The gains from the money of spouses, although the capital is the separate property of one of them. Art. 45. The property owned by either husband or wife before marriage does not belong to the community, nor the profits of the same already due, although collected after t^fi marriage. Art. 4ij. Property acquired by either after marriage by a gratuitous title, such as inheritance, donation or bequest, does not belong to the community. Art. 47. Nor does property acquired in exchange for other property belonging to one of them, nor that acquired by the produce of the sale of property belonging exclusively to one of the spouses. Art. 48. Money, expended in improving property be- longing to one of the spouses, belongs to the community, but gives the other no claims to the property itself. Art. 49. Husband and wife are entitled to an equal share in the communit}^, although one of them should, at the time of marriage, have been without any means. At the same time both are liable, in equal proportions, for the losses and debts incurred during its existence. Art. 50. Deteriorations of the private property of one of the spouses, without the fault of the husband, are considered as losses, and the debts of the community are: 396 LAWS OF SPAIN AND MEXICO. 1. Money borrowed by the husband. 2. Rents and taxes to which the property of one of the spouses is hable. 3. The dower promised by husband and wife during mar- riage, or by the husband alone. (See Arts. 347, 348.) Art. 51. The husband alone administers the property of the conjugal partnership during the existence of the mar- riage, and he can sell and dispose of the same as he thinks proper, provided always he does so without the intention of injuring his wife. Art. 52. This power, however, must be exercised in the hfetime of the husband, and gives him no power of control over the community property not his own by last will and testament. Art. 53. On this account, a legacy left by the husband to his wife does not diminish the share of the latter in the matrimonial gains. Art. 54. The community is also responsible for dona- tions made by the husband, if the same be moderate and bestowed on relations. Art. 55. The husband is liable for deteriorations which happen, througli his fault, to the property of his wife. Art. 56 The community is dissolved: 1. By tlie death of one of the spouses. 2. By the confiscation of the property of one of them. 3. By the separation from bed and board. Art. 57. The dissolution by death takes effect from the moment of its occurrence, although the heirs of the deceased spouse continue to live with the survivor. Art. 58. But, though in such a case the community has ceased to exist, a new one may be created between said heirs and the survivor, if they continue to keep their property in common, but, in such event, the gains or losses are appor- tioned among each in proportion to his share. Art. 59. Confiscation dissolves the community from the APPENDIX. 397 moment the decree becomes executory, but such decree does in no manner affect the share belonging to the other partner. Art. 60. Separation from bed and board dissolves the community, when it is decreed by the competent tribunal. Art. 61. When the community is dissolved for any of the foregoing causes, either party has the right to proceed to the immediate settlement of the same. Art. 62. Fruits pending at the time of such dissolution are to be equally divided, with this distinction: that if they proceed from vines or trees, the fruits must have appeared, because, in the contrary event, the owner owes one-half of the expense incurred for their production, but if they be from land that is sowed, the produce is equally divided, although the fruits should not appear at the time of the dis- solution. If the land has been worked without being sowed he to whose share it falls is only liable for one-half of the expense. Art. 63. All property possessed by husband and wife is presumed to belong to the community, and is to be divided equally, unless it be proved that a portion of the same is the individual property of one of them. Art. 64. The wife may renounce the community, and by tlie renunciation she forfeits all claims to the gains, and remains discharged from all the debts contracted, or losses, sustained by her husband. Art. 65. The wife may renounce the community before, during, and after the dissolution of the marriage. Art. (^Q. This renunciation must be express and is never presumed. Art. 67, On the death of the wife, tlie surviving hus- band acquires the absolute ownership, and full administra- tion of one-half of the matrimonial gains, and can freely dispose of the same, as well by contract iider vivos, as by testament, without being compelled to reserve any portion thereof for the cliildren of the marriage, provided he does not de})rive them of their lawful portion. 398 LAWS OF SPAIN AND MEXICO, Art. 68. The wife loses her matrimonial gains in the following cases: 1. When she has been guilty of adultery. 2. When she has abandoned the husband without his consent. 3. When she has joined some religious sect, and therein married, or committed adultery. Art. 69. The widow likewise forfeits her portion of the matrimonial gains by leading a dissolute life. Art. 482. A married woman cannot enter into any con- tract without the express consent of her husband. Never- theless, if she exercise publicly some office of trade, she may make contracts relating to either. Art. 483. In all cases in which the law refuses its sanc- tion to contracts made by married women without the authority of their husbands, they become valid if the latter ratify them afterwards, either expressly or tacitly. TABLE OF CASES. TABIvE OF CASES. ( References are to Sections.) A. Abat V. Atkinson, 21 An. 237 124 Abbott V. Wetherby, 6 Wash. 507 19, 43, 124, 146, 150, 152, 158 Adams V. Black, 6 Wash. 528 37, 98, 112, 113 Adams V. Knowlton, 22 Cal. 283 38.73. 128 Adair V. Hare, 73 Tex. 276 228 Aiken V Ann Davis, 17 Cal. 120 73, 184 Aikin V. Jeflferson, 65 Tex. 637 228, 230 Allen V. Bright, 23 S. W. (Tex.) 712 230 Allen V. Harper, 19 Tex. 501-- 27, 29, 162 Alexander V. Knox, 6 Sawyer (U. S.), 54 31 Alexander V. Bouton, 55 Cal. 19 58 Althofv. Conhiem, 38 Cal. 230 38, 93, 162, 176 Alverson V. Jones, 10 Cal. 9 40, 105, 128, 166 Ames V. Hubby, 49 Tex. 710 25,27 Andrews V. Andrews, 3 Wash. Ter. 289 149, 150, 174, 189, 193 Andrews v Randon, 34 Tex. 536 209 Andrews V. Runyan, 65 Cal. 630 91, 182 Andrews V. Ware, 23 An. 229 19, 65 Andrew V. Bradley, 10 An. 606 40, 60, 99, 162 Ann Berta Lodge v. Leverton, 42 Tex. 18 89 Anthony v. Nye, 30 Cal. 402 179 Armorer v. Case, 9 An 288 12, 47 Ashe V. Yimgst, 65 Tex. 639 228, 230, 233 Audrick v. Lamothe, 12 An. 76 208, 216, 227 Auerbach v. Wylie, 84 Tex. 615 230 Augustine v. State, 23 S. W. (Tex.) 794 80 B. Babb V. Carroll, 21 Tex. 766 -- 29 Babin V. Nolan, 4 Rob. 286 142, 144, 221 Bachino v. Coste, 35 An. 570 39, 40, 67, 107 26 402 TABLE OF CASES. Baird V. Lemee, 23 An. 234 16, 223 Baker V. Baker, 55 Tex. 577 - 57 Baldridge v. Scott, 48 Tex. 189 62 Balch V. Smith, 4 Wash. 497 243, 249 Balewv. Casey, 9 S. \V. (Tex.) 189 19- "9 Bank v. Turnley, 61 Tex. 369 88 Barrow v. Stevens, 27 An. 343 7, 125 Bartoli v. Hnguenard, 39 An. 411 16, 18, 21, 42, 144, 223 Barbet v. Langlois, 5 An. 212 25, 54, 57, 84, 143 Barker V. Koneman, 13 Cal. lO- 59.99- i55. 171 Barziza V. Graves, 25 Tex. 322 157 Barrett V. Tev^^ksbury, 18 Cal. 334 179. 181 Bass V. Larche, 7 An. 104 19. 65, 144 Battle V. John, 49 Tex. 203 19. 64, 129 Bateman V. Bateman, 25 Tex. 270 19. 21 Baubichon, Estate of, 49 Cal. 18 235 Beard V. Knox, 5 Cal. 256 10, 35, 47, 74, 83, 87, 235, 240 Beaudry v. Felch, 47 Cal. 1S3 22, 23 • Beckman V. Stanley, 8 Nev. 257 88 Berry v. Wright, 14 Tex. 270 93 Bertie v. Walker, i Rob. 431 124 Belair v Dominguez, 26 An. 605 144 Beopple V. Green, 33 An. 1191 203 Beldon v. Hanlon, 32 An. 85 203 Bergv. Ingalls, 15 S. W. (Tex.) 579 204, 205 Berthelotv. Fitch, 12 So. Rep. (La.) 625 222, 224 Bennett v. Fuller, 29 An. 663 223 Bell V. Schwarz, 37 Tex. 572 228 Biegel V. Lange, 19 An. 112 20, 177 Bister v. Menge, 21 An. 216 81, 84 Biererv. Blurock, 9 Wash. 63 149. 15°. 191 Bienvenu v. Fournet, 28 An. 623 119 Blanchet v. Dugat, 5 Tex. 507 89 Blumberg v Adam, 49 Cal 309 91 Block V Melville, 10 An. 784 128, 162 Black V. Bryan, 18 Tex. 461 138. 139- I77 Black V. Black, 62 Tex. 296 , 182 Board of Trade v. Hayden, 4 Wash. 263 17, 100, 146 Bonner v. Gill, 5 An. 629 19. 21 Bonner V. Stephens, 60 Tex. 616 107, I09_ TABLE OF CASES. 403 Bone V. Borie, 5 La. 89 --21, 65, 131 Boone v. Hulsey, 71 Tex. 176 29 Bostwick V. Gasquet, 11 La. 537 38, 162, 163 Bower V. Frindell, 17 An. 299 116 Bouligny v. Fortier, 16 An. 209 11, 65, 117, 221 Bond V. Hill, 37 Tex. 626 141 Bovo V. Bovo, 63 Cal. 77 201 Boardette v. Husband, iS An. 41 214 Boissat V. Sullivan, 21 An. 565 223 Box V. Word, 65 Tex. 159 234 Bollinger V. Manning, 79 Cal. 7 242 Bourdeno v. Amperst, 14 Micli. 94 259 Bradford v. Johnson, 44 Tex. 382 17 Bradley v. Love, 60 Tex. 473 41, 172, 233 Bruneau V. Bruneau, 9 Mart 217 9 Brown v. Chancellor, 61 Tex. 437 17 Brown v. Cobb, 10 La iSo 19, 65, 119, 131, 145 Brown V. Ector, 19 Tex. 347 138, 140 Brown v. Ferguson, 4 La. 257 154 Brown v. Orr, 29 Cal. 120 -. 179 Brown v. Brown, 41 Cal. 88 202 Brown V Creditors, 17 An. 113 216 Brown v. Seaman, 65 Tex. 629 230 Brown V. Elmendorf, 25 S. W. (Tex.) 145 231 Brown v. Pridgen, 56 Tex. 125 234 Brown v. Brown, 61 Tex. 58 60, 154 Brusser v. Wheeler, 4 Rob. 114 19, 131 Braden v. Gose, 57 Tex. 41 19,21, 61, 64, 129, 155 Broussard V. Bernard, 7 La. 217 19,65, 220, 222 Broussard V. Broussard, 11 Rob. 445 38, 65, 124, 222 Bradshaw V. Mayfield, iS Tex. 21 58 Breaux V LeBlanc, 16 An. 145 65 Bremond v. Husband, 11 Rob. 446 65 Browder v. Clemens, 61 Tex. 587 66, 162 Brotton v. Langert, i Wash. 79 78, 96,98, 146, 148, 151, 181 Brewer V. Wall, 23 Tex. 585 93, 229 Breaux V. Francke, 30 An. 336 IJ9, 145 Breaux v. Carmanche, 15 An. 588 144 Bruneau v. Bruneau, 7 Mart, 217 161 Brackett V. Devine, 25 Tex. Sup. 194 162, 230 404 TABLE OF CASES. Bryan V. Moore, ii Mart. 26 162, 221 Bronson V. Balch, 19 An. 39 221, 223 Broad v. Broad, 40 Cal. 496 228, 235 Broad v. Murray, 44 Cal. 228 228, 237 Brennan v. Wallace, 25 Cal. 114 238 Buchanan's Estate, 8 Cal. 509 9, 19, 38, 40, 83, 235, 241 Burton v. Lies, 21 Cal. 87 38, 57, 83, 239 Burns V. Thompson, 39 An. 377 40, 45, 107, 173 Butler V. Robertson, 11 Tex. 143 123, 138 Burleson V. Burleson, 28 Tex. 418 228 Burgess v. Hargroove, 64 Tex. 117 228, 257 B3-rne V. Byrne, 3 Tex. 341 202 C. Cabrol v. Gourdain, 10 An. 686 80, 116 Callahan v. Houston, 76 Tex. 497 60 Calhoun V. Leary, 6 Wash. 17 74, 119, 149, 174, 191 Callihan v. Patterson, 4 Tex. 61 138 Calderwood V. Peyser, 31 Cal. 333 184 Camden v. Mullen, 29 Cal. 565 73, 184 Cameron v. Fay, 55 Tex. 61 143 Cannon V. Murphy, 31 Tex. 405 29 Cannon V. Hemphill, 7 Tex. 184 181 Cartwright V. Hollis, 5 Tex. 163 10, 15, 123, 138, 257 Cartwright v. Moore, 66 Tex. 55 228 Cartwright V. Cartwright, 18 Tex. 634 19 Carr v. Tucker, 42 Tex. 330 19, 21 Carlisle v. Sommer, 61 Tex. 124 21, 119 Caruth V. Grigsby, 57 Tex. 259 31, 36, 228 Caruthers v. McNese, 43 Tex. 224 90, 138 Carter v. Comer, 60 Tex. 52 123, 229, 230 Carpenter V. Featherstone, 19 An. 508 127 Carroll v. Carroll, 20 Tex. 731 234 Castor V. Peterson, 2 Wash. 208 20, 162, 163 Castro V. lilies, 22 Tex. 499 ._ 47, 163 Cavil V. Walker, 26 S. W. (Tex.) 854 19, 124, 130 Cestac V. Florence, 31 An. 493 223 Chapman V. Woodward, 16 An. 167 19, 220 Chapman v. Allen, 15 Tex. 283 19, 38, 43, 44, 64, 66, 99, 123, 162 Chapman v. Kimball, 6 Rob. 94 227 ChafFe V. Mcintosh, 36 An, 826 — . — 19, 125 TABLE OF CASES. 405 Chauvez V. McKnight, i New Mex. 147 6 Childress V. Cutler, 16 Mo. 39 6 Childers V. Johnson, 6 An. 634 21, 141, 142, 216 Charouleau v. WofFenden, i Ariz. 346 24 Chauviere v. Fliege, 6 An. 56 38, 73, 126 Cheek v. Bellows, 17 Tex. 613 89, 182 Christmas V. Smith, 10 Tex. 139 120, 127, 140 Chaix V. Villijohn, 7 I,a. 276 138 City Ins. Co. v. Simmons, 19 An. 246 11, 17, 19, 119, 124 City of New Orleans v. Davidson, 30 An. 541 17, 174 Clark V. Norwood, 12 An. 598 19, 38, 65, 67, 128 Cleveland V. Cole, 65 Tex. 402 19, 21, 64, 120, 125, 129 Cleveland v. Harding, 67 Tex. 396 .228 Claiborne v. Tanner, 18 Tex. 68 19, 53, 60, 66, 99, 129, 162 Claflin V. Pfeifer, 76 Tex. 469 19, 45, 125, 126 Clements V. Ewing, 71 Tex. 372 90 Clements V. Lacy, 51 Tex. 150 229 Clift V. Clift, 72 Tex. 149 143, 228, 257 Cline V. Upton, 56 Tex. 319 109 Coats V. Elliott, 23 Tex. 606 167 Collins V. Babin, 16 An. 290 227 Colton V. Colton, 34 An. 808 61, 84 Cockburn v. Wilson, 20 An. 40 17, 38, 65, 220, 227 Cole's Widow V. Executors, 7 Mart. N. S. 41 i, 11, 42, 47, 74, 90 Comeau V. Fontenot, 19 La. 406 19, 40, 65, 145 Conner v. Hawkins, 66 Tex. 639 19, 21, 158 Connor V. Connor, 10 An. 440 12 Commissioners V. Bein, 12 Rob. 578 19, 72 Columbia National Bank v. Enibree, 2 Wash. 331 121, 123, 175, 247 Colcord V. Leddy, 4 Wash. 79 97, 98 Commercial Bank v. Scott, 6 Wash. 499 189, 191 Conn V. Davis, 33 Tex. 203 234 Cooke V. Bremond, 27 Tex. 457 ^ 38, 63, 107, 108, 109, 169 Cooper V. Colton, 6 An 256 47 Cooney V. Clark, 7 La. 157 224 Coons V. Stringer, 14 An. 726 126, 222 Cook V. Norman, 50 Cal. 634 99, 236, 239 Corker V. Corker, 95 Cal. 308 61, 84 Cormier v. Ryan, 10 An. 688 65 Cordierv. Cage, 44 Tex. 534 232, 257 406 TABLE OF CASES. Cosgrove V. Creditors, 41 An. 274 162, 167 Cousins V. Kelsey, 33 An. SSo 119 Covington V. Burleson, 28 Tex. 368 123, 138, 179 Cox V. Miller, 54 Tex. 24 8, 17, 19, 21, 38, 145, 158, 228 Cox V. Hunter, 10 La. 427 227 Cox V. Gardner, 8 Mart. 726 227 Craig V, Craig, 31 Tex. 204 202 Craddock V. Goodwin. 54 Tex. 578 t8i Crumpler v. McFadden, 20 Tex. 375 138 Crowv. VanSickle, 6 Nev. 146 94- 176 Cullers V. James, 66 Tex. 494 90, 182 Cullers V. May, Si Tex. no 230 Curry V. Catlin, 37 Pac. (Wash.) 678 191 Culp V. Jones, 24 S. W. ( Tex.) 1123 233 Cummings V. Chevrier, 10 Cal. 519 238 D. Darrenberger V. Haupt, 10 Nev 43 209 Davis V. Saladee, 57 Tex. 326 90 Davis V. Compton, 13 An. 396 132 Davis V. McCartney, 64 Tex. 587 230, 232 Davock V. Dorcy, 6 Rob. 344 226 Daigle v. Crow, 15 An. 597 --• 144 Dawson v. Holt, 44 Tex. 174 230 Davidson v. Stewart, 10 La. 146 38, 40, 60, 99, 107, in, 119 DeBlanev. Lynch, 23 Tex. 29 11, 19, 21,43, 76 DeBlanc v. DeBlanc, 4 La. 419 157 DeGarcav. Galvan, 55 Tex. 56 21, 61, 154, 158 DeGody v. Gody, 39 Cal. 164 35> 74, 77> §7, 202, 213 DcvSentmanat V. Soule, 33 An. 609 40 DeLaguerra v. Packard, 17 Cal. 183 237 Depasv. Reiz, 2 An. 30 21, 142, 144, 145, 222, 224 Dees V. Seale, 5 An. 688 19, 38, 65, 131, 145 Denegre v. Denegre, 30 An. 275 n, 19, 21, 55, 142, 144 Dean v. Parker, 88 Cal. 283 38 Deifendorf v. Hopkins, 95 Cal. 344 45, 61, 99 Delts V. Stevenson, 17 N. J. Eq. 407 58 Degray v. St. Pe, 4 Mart. N. S. 404 - I4i, -84 Deuprez v. Deuprez, 5 Cal. 387 184, 210 Decuvir v. Lejune, 15 An. 569 208 D. & W. Ry. Co. V. Spickler, 61 Tex. 431 140, i74 TABLE OF CASES. 407 DfeSdtjry v. Schlater, 25 An. 425 19, 125 Dillon V. Dillon, 35 Anl 92 21, 203 Dietz V. Winehill, 6 Wash. 109 97, 98 Dickson v. Dickson, 36 An. 453 ^ 223, 22S Dickson v. Dickson, 37 An. 915 .■ 223 Dixon V. Dixon, 4 L,a. 190 33, 76, 222, 262 Dixon V. Sanderson, 72 Tex. 10 19, 59, 125, 127 Diemeget v. O'Hern, 29 An. 961 . 226 Dimmick v. Ditomick, 95 Cal. 327 19, 44 Dominguez V. Lee, 17 La. 181 — 19, 40, 65, 66, iii, 119, 125, 131, 141, 142 Dooley V. Montgomery, 72 Tex. 429 94, 107, 109 Dow V. Gould, 31 Cal. 653 99 Dow V. Curry, 31 Cal. 630 157 Dorvin v. Wiltz, 11 An. 514 144, 208 Downs V. Morrison, 13 An. 379 . 222 Drum V. Kleinman, 31 An. 126 40, 216 Drais v, Hogan, 50 Cal. 126 58, 166, 201, 215 Ducrest V. Bijeau, 8 Mart. N. S. 192 19, 21, 65, 131 Dunbar v. Heirs, 5 An. 158 12 Dunham v. Williams, 32 An. 162 19, 40, 55, 65, 141, 144 Duh'Can V. Bickford, 83 Tex. 322 31, 162 Diknham v. Chatham, 21 Tex. 244 38, 41, 56, 62 Duke V. Reed, 64 Tex. 714 47, 169 Durrutty v. Musacchia, 42 An. 357 162 Duncan v. Rawls, 16 Tex. 478 174, 228 Dugras V. Husband, 6 Rob. 527 216 Dye V. Dye, 11 Cal. 163 184, 210 E. Earle v. Earle, 9 Tex, 630 182 Eckford v. Knox, 67 Tex, 202 228 Edwards v. Rix; 30 An. 928 227 Edwards V. Brown 68 Tex. 329 36, 39, 75, 78, 109, iii, 113, 209 Edwards v. James, 7 Tex. 382 29, 89 Edrington V. Mayfield, 5 Tex. 363 38, 70, 156, 163 Edrington V. Newland, 57 Tex. 634 181 Eisenbach V. Key, 63 Tex. 79 127 Eidenmuller v, Eidenmuller, 37 Cal. 364 202 Ellis V. Rush, 5 An. 116 119 Elsinger v. Elsinger, 47 Cal. 62 201 Epperson v. Jones, 65 Tex. 425 19, 21, 44, 66, 125, 126 408 TABLE OF CASES. Estate of Higgins, 65 Cal. 407 23, 47 Estate of Silvey, 42 Cal, 213 240 Estate of Frey, 52 Cal. 658 240 Estate of Delaney, 49 Cal. 76 240, 242 Estate of Wixom, 35 Cal. 320 242 Evans V. Opperman, 76 Tex. 293 . — 19, 60 Evans v. Welborn, 74 Tex. 530 158 Evans V. Taylor, 60 Tex. 422 233 Everett V. Everett, 52 Cal. 384 215 Ewald V. Corbett, 32 Cal. 493 19, 38, 162 Ewing V. VanWagenen, 6 Wash. 48 100, 158 Ezel V. Dodson, 60 Tex. 331 19, 180, 182 Faar V. Wright, 27 Tex. 96 123, 172, 184 Fagan V. McWhirter, 71 Tex. 567 231 Ferris V. Parker, 13 Tex. 385 58 Fields V. Fields, 2 Wash. 441 212 Finn V. Williamson, 75 Tex. 336 40, 162 Fisk V. Flores, 43 Tex. 340 19, 25, 27, 57, 59 Fisher v. Fisher, 2 An, 774 47 Fisher V. Gordy, 2 An. 772 40, 60, 66, 99, 116, 128, 131 Fittsv. Fitts, 14 Tex. 443 59, 171, 194 Fitzpatrick V. Pope, 39 Tex. 315 19, 21 Finnigan v. Hibernia Sav. and L. Soc. 63 Cal. 390 19, 124 Flournoy V. Flournoy, 86 Cal. 286 64 Flournoy V. Flournoy, 29 An. 74 224 Flemming V. Flemming, 18 An. 726 220 Flood V. Shamburgh, 3 Mart. N. S. 622 227 Fluke V. Martin, 26 An. 279 125 Ford V. Ford, i La. 206 11, 19, 38, 39, 40, 60, 66, 99, 123, 128 Ford V. Brooks, 35 An. 157 19 Ford V. Cowan, 64 Tex. 130 233 Forbes v. Layton, 34 An. 975 19 Forbes V, Dunham, 24 Tex, 611 19, 21 Forbes v. Forbes, 11 An. 326 38, 40, 107, 128 Forbes v. Moore, 32 Tex. 195 89 Fortierv. Slidell, 7 Rob. 398 224 Fox V. Brady, 20 S. W. (Tex.) 1024 60 Fordyce V. Dixon, 70 Tex. 695 180 Frank V. Frank, 25 S. W. (Tex.) 819 155 TABLE OF CASES. 409 Freeburger v. Gazzam, 5 Wash. 772 47 Freeburger v. Caldwell, 5 Wash. 769 162 French v. Strumberg, 52 Tex. 92 107, 109, 231 Fredrick V. Shorey, 4 Wash. 75 61 Frederic v. Frederic, 10 Mart. N. S. 188 19, 21, 65 Frique v. Hopkins, 4 Mart. N. S. 214 25, 27, 57, 141 Fuller V. Ferguson, 26 Cal. 547 19, 26, 57, 58, 60, 64, 79 S3, 87, 99 Fuselier V Masse, 19 La. 329 25, 57, 223 Fullerton V. Doyle, 18 Tex. 13 89, 182 Furrh V. Winston, 66 Tex. 521 141, 143 G. Gage V. Downey, 79 Cal. 140 235 Galland V. Galland, 38 Cal. 271 74, 87 Gallagher V. Bowie, 66 Tex. 265 19, 180 Gale V. Davis, 4 Mart. 645 47, 222 Gardner v. Port Blakely Mill Co. 8 Wash, i 31 Gardner V. Burkhart, 23 S. W. (Tex.) 709 29 Garrett v. Jobe, 70 Tex. 696 109, 230 Gaston V. Wright, 18 S. W. (Tex.)596 155 Gayoso V. Garcia, i Mart. N. S. 324 25, 57 Gee V. Thompson, 41 An. 348 -_- 144 George v. Stevens, 31 Tex. 673 123 George v. Ransom, 15 Cal. 323 22, 23, 66 German V. Nichols, 18 La. 361 19 German v. Gay, 9 La. 580 222 Gil V. Gil, 10 Rob. 28 131 Gilliard V. Cheesney, 13 Tex. 337 38,66, 162 Givins v. Hudson, 64 Tex. 471 229 Gimmy v. Gimmy, 22 Cal. 632 211 Gimmy v. Doane, 22 Cal. 635 184, 210, 238 Glasscock V. Green, 4 An. 146 119, 145 Glasscock V. Clark, 33 An. 584 222 Glenn v. Elam, 3 An. 611 19, 21, 80, 93, 132, 143, 256 Good v. Moulton, 67 Cal. 540 58 Good v. Combs, 28 Tex. 51 32, 178, 228 Goode V. Jasper, 71 Tex. 48 29, 202 Goldberg V. McCracken, 8 S. W. (Tex.) 675 60 Gonor V. Gonor, 11 Rob. 526 19, 21, 65, 163 Goldsmith v. Herndon, 33 Tex. 706 27 Gogrevev. DeHon, 41 An. 244 162 4J0 TABLE OF CASES. Gossage v. C. P. M. Co., 14 Nev. 153 239 Gould V. West, 32 Tex. 339 78 Grace v. Wade, 45 Tex. 523 _ no Graham V. Egan, 13 An. 546 124 Grant V. Whittlesey, 42 Tex. 320 123 Grayson V. Sanford, 12 An, 646 11, 163, 221 Gratton v. Webber, 47 Fed. Rep. 852 12, 166, 207 Gray v. Nunan, 63 Tex. 220 206 Greene v. Grissam, 53 Tex. 434 . '- 232 Greene V. Raymond, 58 Tex. 80 232 Greene V. Ferguson, 62 Tex. 528 8, 17, 19, 21, 88, 157 Greiner V. Greiner, 58 Cal. 121 35-86, 206, 236, 239 Griffin v. Ford, 60 Tex. 501 233 Griffin v. Waters, i Rob. 149 222, 223 Grierv. Pa. Coal. Co., 18 Atl. Rep. (Pa. ) 483 169 Groesbeck V. Groesbeck, 78 Tex. 664 8, 228 Grothaus V. DeLopez, 57 Tex. 670 229 Guilliam V. Null, 58 Tex. 304 228 Guttman V. Scannell, 7 Cal. 455 184 Guice V. Lawrence, 2 An. 226 32, 76, 80, 93, 119, 132, 143 Gwynn V. Dierssen, 36 Pac. (Cal.) 103 40, 66, 105 H. Hagle V. Hagle, 74 Cal. 608 197 Hagerty V. Harwell, 16 Tex. 665 85, 116, 204 Hair v. Wood, 58 Tex. 79-, 229 Hall V. Hall, 52 Tex. 298 21, 60, 119, 171, 183, 230 Haley v. Gatewood, 74 Tex, 285 234 Hamilton-Brown Shoe Co. v. Lastinger, 26 S. W. 934 19 Hames v. Castro, 5 Cal. in 9, 19, 237 Hanley v. Drum, 30 An. 106 7 Hanna V. Pritchard, 6 An. 720 38, 65, 131 Hanna v. Ladewig, 73 Tex. 37 234 Hannon v. Madden, 10 Bush. (Ky. ) 664 259 Hanchett V. Conner, 30 Tex. 104 63 Hand V. Hand, 68 Cal. 2S8 106 Handy v. Sterling, i An. 308 -_-2i6 Hanks V. Crosby, 64 Tex. 483 229 Hatch V. Ferguson, 57 Fed. Rep. 966 14 Hatchet V. Comer, 30 Tex. 104 172 Harrell v. Harrell, 12 An. 549 19 TABLE OF CASES. 411 Harris V. Harris, 71 Cal. 314 31 Harris V. Williams, 44 Tex. 124 138. 14° Harris V. Finberg, 46 Tex. 83 I79 Harris v. Seinsheimer, 67 Tex. 356 228, 231 Harrison v. Brown, 16 Cal. 288 91 Hart V. Foley, i Rob. 378 222, 224 Harvey V. Carroll, 23 S. W. (Tex.)7i3 209 Harvey v Cummings, 68 Tex. 599 203, 209 Hardin v. Sparks, 70 Tex 429 94 Hartv. Gottwald, 15 An. 13 80, 162 Hartv. Robertson, 21 Cal. 346 56, 66, 239 Hartwell v. Jackson, 7 Tex. 576 59. ^72 Hardy v. DeLeon, 5 Tex. 211 47 Hawley V. Gier, 17 S. W. (Tex.)9i4- 174 Hawley v. Crescent City Bank, 20 An. 230 119, 132, 225 Harpe V. Callihan, 46 Cal. 222 238 Hawkins v. Front St. R'y Co., 3 Wash. 292 181 Hayden V. McMillan, 23 vS. W. (Tex ) 430 125, 128 Haynesv. Stovall, 23 Tex. 627 123, 140 Heidenheimer V. Thomas, 63 Tex. 287 89 Heidenheimer v. McKeen, 63 Tex. 229 19 Heidenheimer V. Loring, 26 S. W. (Tex.) 99 12 Heidenheimer v. Felker, Tex. C. C A. ? 362 21 Helwig v West, 2 An. 3 119 Hemmingway v. Matthews, 10 Tex. 207 ■-- ---20, 60, 81, 92, 99 Heney V. Sargent, 54 Cal. 396 139, 177 Hensley v. Lewis, 82 Tex. 596 36, iii Hershell v. Blum, 3 Tex. L. Rev. 405 19 Hershberger v. Blewett, 46 Fed. Rep. 704 12 Herman V. Theurer, 1 1 An. 70 208 Hensel V. Kegan, 79 Tex. 347 29, 231 Hickman V. Alpaugh, 21 Cal. 226 262 Hickman v. Thompson, 24 An. 264 227, 228 Higgins V. Higgins, 46 Cal. 259 99, I57 Higgins V. Johnson, 20 Tex. 394 38, 43, 60, 62, 76, 155, 156, 162 Hill V. Hill, 7 Wash. 409 251 Hill V. Grigsby, 32 Cal. 60 262 Hill V. Yomig, 7 Wash. 33 243, 248 Hill V. O'Brien, 60 Tex. 392 230 Hill V. Osborne, 60 Tex. 393 230, 231 412 TABLE OF CASES. Hill V. Parker, 36 Tex. 650 174^ 231 Hill V. Moore, 62 Tex. 610 78, m Hillebrant v. Brewer, 6 Tex. 49 60 Hodge V. Donald, 55 Tex. 349 29, 31 Holyoke v. Jackson, 3 Wash. Ter. 238 15, 17, 74, 98, 112 Hollister v. Cordero, 76 Cal. 649 --236 Holmes V. Barbin, 15 An. 553 216, 220, Holloway V. Holloway, 30 Tex. 164 170 Hollingsworth v. Davis, 62 Tex. 438 . 123, 231 Hoover V. Chambers, 3 Wash. Ter. 26 97 Hotard v. Hotard, 12 An. 145 75^ 91^ 208 Howe V. Howe, 4 Nev. 469 213 Hoflfman v. Hoflfman, 14 S. W. (Tex.) 915 229 Horn V. Arnold, 52 Tex. 161 229 Howard V. North, 5 Tex. 302 134, 178 Hoyt V. Hammekin, 14 Howard 346 29, 89 Howard V. York, 20 Tex. 670 . 19, 21 Hubbell V. Inkstein, 7 An. 252 14 HuflFv. Borland, 6 An. 456 12, 65, 223 Huntington v. Legros, 18 An. 126 19, 67, 107, 163 Hughey v. Barrow, 4 An. 248 21, 25, 26, 38, 57, 141 Hussey V. Castle, 41 Cal. 239 . 38, 60, 66, 154 Hunt V. Stearnes, 5 Wash. 167 98 Hutchinson V. Underwood, 27 Tex. 255 140 Huppman v. Schmidt, 65 Tex. 583 230 Hurley v. Lockett, 72 Tex. 262 19 Huston V. Curl, 8 Tex. 239 19,38,40,44, 64, 93, 162 I. Ingersoll V. Truebody, 40 Cal. 603 99, 162 In re Williamson, 75 Cal. 317 240 In re Stewart, 74 Cal. 98 240 /« r^ Mumford, Myr. Prob. 133 240 In re Gwinn, 77 Cal. 313 241 In re Gilmore, 81 Cal. 240 242 In re Hill, 6 Wash. 285 243, 247 /« r^ Winters, Myr. Prob. 131 14, 19, 237 In re Webb, Myr. Prob. 93 ig In re Patton, Myr. Prob. 246 19, 21, 55 /«r5 27. BURDEN OF PROOF — (See Proof.) BUSINESS — ( See Sole Trader's Act. ) BUILDINGS -- ( See Improvements.) C. CALIFORNIA — Introduction of community system in, ^ 6. Dotal system inoperative in, § 6. Parties may modify community by contract in, ^ 7. Community in declaratory of Spanish law, J^g. Statutory definition of community property in, § 13. Earnings of wife in, when community, when separate, § 19, note. Rents, issues and profits of community property in, ^g 22, 23. Rule as to acquisition of piiblic land in, J^ 26. Rule of presumptions changed in, t; 66. Wife as sole trader in, J^ 73. Wife's interest in community property mere expectancy in, >^ 77. 436 INDEX. CALIFORNIA — (r<9«/'/;/«; 201. In granting divorce court may award entire community estate to wife, ^ 201. Rights of wife pending suit for divorce, i:? 206. Wife powerless to restrain fraudulent disposition of community pending divorce, >J 206. Wife acquires no interest or right of possession by virtue of suit for divorce, § 206. Under what circumstances wife may procure bill quia timet, % 206. Wife mav enjoin husband from fraudulently disposing of commu- nity property subsequent to divorce, ij 213. Divorce proceedings do not interrupt husband's powers over the community, J5 213. Extent of husband's power of disposition pending divorce, § 213. Allowance to wife pending divorce authorized, ^ 214. Dower and courtesy never existed in, \ 218. Rules of Mexican law recognized in early enactments of, ij 235. Rights, powers and interests of survivor and heirs, ^^ 234-239. Statutes governing descent of community property in, 4:^ 235, 236. Construction of term "debts of the deceased," i^ 235. Construction of the word "descendants," ij 235. Construction of words "shall go" equivalent to "shall vest," j^ 235. Survivor and heirs hold legal title as tenants in common, ^ 237. INDEX. 437 C ALIFORNI A — <:cw/fz««; 237. Liability of heirs under Mexican law for debts, § 237. Wife's liability for half the debts under Mexican law becomes fixed only when community exhausted, § 237. Rule as to survivorship when both spouses perish in same calamity, § 237. Rule of Spanish law as to continuation of community after death never existed in, i^ 237. Effect of dissolution upon rights of creditors to vacate transfers from husband to wife, ^ 237. Powers and interest of wife after dissolution, g 238. Interest of heirs in commiinity on death of wife, Jj 23S. What must affirmatively appear to entitle survivor to entire estate, I 238. The whole community estate a fund for payment of community debts, ? 238. Homestead no part of community assets, J^ 238. Debts contracted subsequent to dissolution no charge on commu- nity property, Ji 23S. Surviving partner under act of 1850 took estate for purpose of liquidation, J^ 238. Children of deceased spouse tenants in common with survivor, with power in latter to dispose of community property to pay debts, § 239. Powers of survivor generally, ^ 239. Rights of purchasers from survivor, ^ 239. Wife as survivor may maintain ejectment against trespassers, ^239. No administration necessary where there are no debts or where survivor liquidates them, i^ 239. Rule of Mexican law limiting devise to testator's community inter- est recognized, >; 240. Disposition of conununity by will limited to testator's half, § 240. In absence of will decedent's interest passes to his heirs, >$ 240. Where husband devises all community property to wife she takes one-half by will and remainder by law, s^ 240. When husband devises entire estate wife must elect whether to renounce or take under will in certain cases, § 240. Effect of failure to renounce, J^ 240. Presumptions regarding testator's intent, ^ 240. What circumstances may constitute an election, § 383. Wife not estopped to elect by causing probate of will, § 241. Posthumous child entitled to inherit when no express provision is made by testator, i; 24 1 . Heirs cannot be excluded by executor of will from property divided on divorce, § 241. On probate homestead should be selected from conununity prop- erty, g 242. 4e38 INDEX, CALIFORNIA — continued. Homestead excluded from distribution and administration, ^242. Effect of homestead dedication under act of 1851, ^ 242. Rules governing descent and distribution of homestead, § 242. Homestead becomes sole property of survivor, ^ 242. On death of husband homestead vests absolutely in the wife, §242. CAPACITY OF SPOUSES — (See Husband and Wife.) CANADA — Community in, p§ 2, 4. CHATTELS — Parol evidence admissible in Louisiana to show purchase by wife of with paraphernal funds, i^ 169. CHANGE OF DOMICILE — (See Domicile. ) CHILDREN — Domicile of, J5 47. Advancements to in Louisiana, J^ 61. Wife responsible for under sole trader's act, i^ 73. Provision for education and maintenance of on divorce, § 199. Of deceased spouse tenants in common with survivor, ^ 239. Posthumous entitled to inherit where no express provision is made by testator, § 241. CIVIL LAW — Distinctions between and common law, ^ i. Rights of spouses under, § i. Wife a distinct person under, >J i. The natural basis of community system, § i. Transactions between spouses prohibited under, >; 99. CLOUD UPON TITLE — Sale of separate property of wife under execution against husband is, § 105. Contrar}- rule prevails in Washington, § 105. CODE NAPOLEON — Community system embraced in, g 4. What countries extended to, ^ 4. 'CODE GOTHIC — §1- COLLUSION — Sales by husband to defraud wife invalid, § 81. COMMON LAW — Status of wife imder, p i Distinctions between and civil law, ^ i. Commimity system at variance with, § i. Reason for disabilities of wife under, § i. Tenancy by entirety at, ti i. Influence upon commvmity, >5 6. Superseded by community system, g 10. INDEX. 439 COMMON l.A.'W — continued. Rights of wife in property under, § 49. Disabilities under abolished by statutes, §51. Rule of as to gifts between spouses, § 58. Right of dower and courtesy abolished, ^§ S3, 253 Rules of regarding succession abolished, § 218. Effect of marriage at upon acquisitions in public land, § 251. Principles of community system incompatible with those of, §§ 252, 253. Is basis of jurisprudence of majority of community estates, § 253. COMMON LAW MARRIAGE— ( See Marriage.) COMMON PROPERTY — (See Community.) COMMUNITY LAWS — Abolished in some states, § 6. In what states prevail, ^ 6. COMMUNIO BONORUM — Characteristics of in Holland, ^ 3. What property embraced in, ij 3. Debts under, i^^ 3. Not recognized in Spain, § 5. COMMUNIO QUAESTUUM — Characteristics of in Holland, ^ 3. What property embraced in, g 3. Debts of, § 3- COMMUNITY — Origin of, ^ I. Distinctions between and common law, § i. Origin not in common law, § i. Analogous to tenancy b}' entirety, § i. Source of system, J^ i . Development of in Spain, ^ i. Into what countries introduced, ^ i. Influence of common law upon, tj 6. In Holland, ij 3. Distinction between and civil law, § 3. Characteristics of, § 3. In France, % 4. When commences, ij 4. Of what composed, § 4. What excluded from, § 4. Presumptions attending, § 4. In Spain, ^ 5, Communio Bonorum not recognized, §5. Begins with the marriage, § 5. Definition of ganancial property, ^ 5. All gains and all debts belong to, ^^5 50, 114. All debts contracted during marriage must be acquitted out ot funds of, § 114. 440 INDEX. COMMUNITY — cotiiinued. American System of, % 6. Exists in what states, i; 6, In what states aboHshed, g 6. Spouses cannot dissolve or modify, § 8, Declaratory of Spanish law, ^ 9. Not analogous with common law, § 10. Theory of and principles on which founded, § 11. What property is common, ^11. When commences and under what circumstances, § 11. Duration of, g§ 11, 42. Statutory definition of, §§ 13, 18. Rights of residents and non-residents in, § 12. None exist where no legal marriage, § 14. Effect of putative marriage in good faith upon rights in, § 14. Analogous to partnership, § 15. Not subject to partnership rules, § 16. As an entity, § 17. Community the paramount estate, § 17. Reasons for fostering, i^ 17. Legal community supersedes community partnership, § 17. Difficulty of tracing, g 18. What property is, gg 19, 42. Criterion by which to determine, § 19. Acquisitions by labor of spouses belong to, § 19. Money earned in commercial business belongs to, § 19, note. Joint acquisitions property of, g 19, note. Compromise of ante-nuptial claim falls into, § 19. Acquisitions when not, ^5 19, note. Pension money not property of, § 19, note. Rule as to moneys and commercial paper, g 2{\ When rents, issues and profits belong to, §§ 21, 51. Public lands when belong to and when not, §g 25 to 31. Rule as to what property is, § 51. Is legal consequence of marriage, § 42. Under what circumstance will continue, § 42, Foundation principles of system, § 43 Is paramount estate, §J^ 44, 48. Presumptions concerning, g 48. Improvements and augmentations of, § 50. Donations to spouses not, ^ 50. Relation to dotal system in l/ouisiana, § 52. Estates which may exist at same time under, § 53. Imperfections of system, ^ 53. Statutes exempt acquisitions before marriage from, § 54. Joint lucrative titles under, v< 56. Exception to rule, § 56, note. Identity of wife maintained under, § 58. INDEX. 441 COMMUNITY — C07itinued. One spouse may give interest in to other if not in fraud of creditors, ^59- Transfers between spouses to be valid must be by gift or exchange, §60. Property purchased by husband and title taken in wife's name- pri})ia facie, ^^62, loi, 128. How property of may be changed to separate, § 62. Purchase by husband falls into unless clearly for separate benefit,. § 65. Purchase by husband with funds of wife belongs to in Louisiana, § 65. Purchase in joint names with separate funds belongs to, § 65. Effect of acquisitions with separate funds in Louisiana, § 65. Proof necessary to rebut presumption that property belongs to, § 66. Purchase by wife with borrowed funds becomes property of, § 66, note. Eifect of confusion of property of with separate property, J^ 68. Creditors of not concluded by recitals in recorded conveyance, § 72. Ownership of spouses in is joint, ^ 74. Proprietary interests of spouses in are equal, § 74. Proprietary interests of spouses fixed and definite, § 74. Reasons for maintaining equality between spouses, § 74. Neither spouse owns any specific property in before dissolution, ^ 74 Limitations on nature of interests in, 4$ 74. Interests of spouses may be equitable, ij 74. Shares of spouses in not separately alienable, § 75. Reason for rule, ^ 75. Conduct of wife may forfeit interest in, >^ 75. Is theoretically an entity for certain purposes, §75 What titles possessed by, J^ 75. Created for what purpose as to title, i^ 75. Ownership of wife in same as Spanish law in Louisiana, § 76. Husband's powers over in California, i^ 77. Limitation on wife's powers of control over, i^ 80. Claim of against husband for withdrawal of assets for private gain, § 84. Differs from commercial partnership, § 114. Liable for all debts contracted during marriage, §§ 114, 115. Not liable for debts contracted before marriage, §§ 114, 115. Liable for all debts contracted by husband, § 115. Husband has absolute control and management of, ?5 115. How and by whom may be bound, >5S 116, 117. Property of a trust fund for satisfaction of debts, § 116. Not liable for wife's debts contracted during coverture, g 116. Wife has no control over affairs of, § 116. Husband has entire administration of, % 116. Husband has unlimited power to create obligations binding upon, §g 116, 117. 442 INDEX. ■COMMUNITY — continued. Debts incurred by husband in management of are debts of, §g ii6, 117. Husband's power to create obligations binding upon ceases on dissolution of marriage, § 116. Husband has power to pledge community for payment of debts, § 117. Wife may bind by contract for necessaries, ^-^ 116, 117. Wife cannot alienate property of for any purpose, § 116, note. Management of vested in husband for reasons of public policy, §117- Husband may dissipate assets if not in fraud of wife, ^ 117. Husband exercises powers of a trustee as to, §117. Property bound for satisfaction of husband's debts, § 117. What are debts of, g§ iiS, 119, and notes. All debts created by husband during marriage are debts of, §118. Definition of a debt of, ^^^ 118, 119. Judicial definitions of a debt of, ^ 119. Presumption is that all debts created during marriage are debts of, § 119. Debts contracted during the community take precedence of those contracted before or after its existence, i^ ii9- Not bound when consideration of contract inures to separate benefit of wife, Ji 1 19. In absence of evidence, presumption is there are no debts against, ^ 119, note. Moneys received by wife with consent of husband constitute a debt of the, § 119, note. Vendor's lien upon land conveyed to spouses is a debt of, § 119, note. Unpaid purchase money upon land conveyed to wife by direc- tion of husband, is debt of, j^ 123. Rent due upon lease made during marriage is debt of, g 119, note. Mortgage upon property of community is a debt of, JJ 119, note. Liable for ante-nuptial debts of spouses in Louisiana and Texas, §§ 132 to 135. Liable for private debts of husband contracted during covert- ure, ^ 133. Liable for necessaries furnished to family, §§ 136-140. Liable though credit was given to wife, § 139, note. Liability of for necessaries not affected by fact that wife has abandoned husband in Texas, i^ 139. What are not debts of, §§ 119 to 121. Not liable for charges and expenses of separate property of spouses, ^ 120. Fees of attorneys employed by wife to prosecute suit for divorce are not a debt of, J; 119, note. indp:x. 443 COMMUNITY — continued. All debts incurred after dissolution of marriage are not, §§ 1 19, 121, notes. Debts incurred upon faith of wife's separate estate are not debts of, § 1 19, notes What property liable for payment of debts of, %% 122, 126. Entire estate of community is a fund for payment of, J$ 120. Separate estate of husband liable for payment of, ^§ 119. 120. Separate estate of wife cannot be held liable for payment of without her consent, i? 120 Interests of spouses in estate of, cannot be reached by separate creditors during coverture, >; 121. Debts of have priority over debts of individual spouses, § 122. All property held by spouses presumed liable for debts of, ^^ 123, 128. Contract of spouses for benefit of wife's separate estate is an obligation of the, >^ 123 Upon dissolution of marriage in Louisiana wife's separate estate liable for after debts unless she renounce the, § 123, 124. Separate property of wife not liable for debts of, i^ 124. Separate property of wife when identity lost by commingling with community property liable for debts of, J^ 124. In Louisiana wife has no power to bind herself for the debts of, ^ 124. Separate earnings of spouses liable for debts of, ^ 124. Separate earnings of wife not liable for debts of when living apart from husband, § 1 24. Property purchased by wife with separate earnings liable for debts of, >; 124. Fruits and revenues of separate property liable for debts of in Texas and Louisiana, § 125. Money drawn by wife in lottery liable for debts of, § 125. Presumption is that capital employed by wife as sole trader belongs to, g 126. Debts incurred by wife as sole trader are debts of, ^ 126. When separate property and its profits commingled all liable for debts of, >^ 127. Rights of wife when separate property seized by creditors for debts of, i< 128. Presumption that property is may be rebutted by wife as against creditors, >^ 128. Debts of partnership have preference over right of community in partnership property, i; 128, note. When property purchased partly with funds of and partly with separate funds, liable for debts to extent of interest of, ^5 129. Wife may establish resulting trust in property of against creditors, \\ no, 130. 444 INDEX. COMUVNITY — continued. "What facts necessary to establish resulting trust in wife's favor in property of, >j 130. In Louisiana wife cannot establish resulting trust in property of, §131- Reimbursement of for funds used for separate benefit of spouses , g§ 141, 143. Is a creditor of spouses for all funds advanced, § 141. Amount advanced may be recovered by creditors of upon dis- solution of marriage, ^ 141. Right to reimbursement does not accrue until dissolution, t^j; 141, 142. Where separate debts paid with the funds of, entitled to reim- bursement, § 143. Where improvements have been made on separate property entitled to be recompensed for value at time of dissolution, §142. Where enriched by separate funds owner of entitled to reim- bursement from, ^142. Spouses as creditors of §§ 144, 145. Entitled to reimbursement for all sums advanced to, § 144. Claim of husband against postponed to claims of other creditors of, § 144. Burden upon spouse claiming reimbursement from to establish validity of claim, t^ 144. Right to reimbursement from accrues upon dissolution of mar- riage, § 144. Property purchased in husband's name with funds of wife be- longs to subject to wife's right to reimbursement, ij 145. Where husband uses funds of wife to pay debts of, wife becomes creditor to that extent, § 145. In Louisiana and Texas where husband mingles separate prop- erty of wife with, wife becomes preferred creditor to that extent, § 145. Rights of spouses in Washington, g 146, 151. Spouses on equality in respect of, t^ 146. Separate property of spouses not liable for debts of, § 146. Personal property of liable for ante-nuptial debts of spouses, §146. Personal property of liable for private debts of husband con- tracted during coverture, ^>^ 146, 148. Real property of not liable for private debts of spouses, §§ 147, 148. Real property of liable for community debts only, §i; 147, 148. Interests of spouses in cannot be seized for satisfaction of sepa- rate debts, §§ 147, 183. Judgment for tort of husband not a debt of, ^ 148. Debts contracted by husband in carrying on business for benefit of are community debts, g 148, 150, 151. INDEX. 445 COMMUNITY — continued. Real property of not liable for suretyship debt of husband, §^ 148, 151. All debts contracted \>y husband during marriage />r/;;/a facie debts of, g 149. What are debts of in Washington, §§ 150, 151. All debts incurred by husband as managing agent are debts of, §t^i50, 151. Rents, issues and profits of real property subject to husband's disposition, i^ 151. Wife may create debt against for necessaries, § 151. Earnings of spouses belong to unless living apart, ^ 152. Money saved by wife from household allowance belongs to and property purchased therewith liable for debts of, ^^ 152, 158. Each spouse may constitute other attorney in fact with full powers, § 152. Property of may be subjected to payment of debts in cases of insanity, i^ 152. Power of husband to make voluntary assignment for benefit of creditors of real property of, >; 153 and note. Presumptions relating to, JJJ^ 159-174 and notes. Importance of presumptions, JJ 159. Cardinal rule enunciated, J^ 159. Presumptions are legal and derive their force from statute, § 159- Presumption of is inferred from statutory provisions, § 159. Presumptions relating to acquisitions of, J^ 159. Acquisition by purchase excludes presumption of separate right, § 159. Embraces all property belonging to spouses, § 160 General rule is that all property belongs to, i^ 160. Presumptions relating to are provisional or conditional, § 160. Presumptions relating to are legal and may be rebutted, i^ 160. Reason for existence of presumptions relating to, t^ 160. Fixity and nature of presumptions relating to, J^ 160. Force and effect of presumptions relating to, i^^ 160, 162. Presumptions relating to under the Spanish law, i^ 161. Presumptions relating to under the civil law of France, J? 161. History of presumptions relating to, ^ 161 Force of presumptions relating to varies under certain circum- stances, >5 162. Presumption that property belongs to stronger where title taken in husband's name, t^ 162. Force of presumption regarding property purchased soon after marriage, § 162. In Washington is that money and negotiable paper does not belong to, J^ 163. 446 INDEX. COMMUNITY ~ con/ifiued. No presumption that property in possession of belongs to hus- band rather than wife, J^ 163. Where marriage has continued for some time presumption is strong that property belongs to, >; 163. In absence of proof to contrary law presumes existence of, § 163. Property in possession and under management of husband presumed to belong to, >^ 163. Property brought by husband from foreign common law domi- cile presumed not to belong to, ij 163. Notwithstanding marriage in foreign state, acquisitions in community states presumed to belong to, J^ 163. All effects possessed by spouses at dissolution of presumed common, >; 163. How presumption of overthrown, i^ 164. Burden and degree of proof necessary to overthrow presump- tion of, j^ 164. Presumption that property belongs to is a mere rule of evi- dence, >^ 164 Proof necessary to overthrow presumption that propert)' be- longs to in Louisiana, i^ 166. Nature of proof required to overthrow presumption that prop- erty is, J5 167. Preponderance of evidence sufficient to overthrow presumption of in Texas, §^ 167, 168. When parol evidence admissible to rebut presumption arising from conveyance to, >i 169. Property purchased with funds of presumed to belong to though deed taken in wife's name, § 173. In absence of evidence presumption is there are no debts of, ^174 and note. Presumed to exist until dissolution be shown, f$ 174 and note. Every debt contracted during marriage presumed to be a debt of, $5 174 and note. Debts of presumed to be paid from lapse of time, § 174, note. As an entity not subject to same rules as commercial partnerships, §175. Actions not to be prosecuted against as an entity, § 175. Actions to liquidate indebtedness of one spouse to not maintainable during coverture, ^175. Husband sole party to actions involving rights of, § 175, 176. Wife legally not a party to suits involving rights of, § 176. Wife neither necessary nor property party to actions involving rights of, § 176. Wife's interest sufficient when related to trial judge to constitute disqualification to tr)^ cause, ^176. In actions of ejectment to recover land of, wife not a proper party, §176. INDEX. 447 COMMUNITY — continued. Damages recovered for personal injury to spouse belong to, § i8o. Wife's interest in lands of equal to that of husband in Washington,. Dissolution of by divorce, J??^ 194-21 1. Divorce of spouses constitutes dissolution of, ^ 194. Partition of may be effected on dissolution by divorce, § 194. Legal separation of spouses in Louisiana dissolves the, ^ 194. Assets of not apportioned b}- operation of law on dissolution by divorce, ^ 104. Dissolution by divorce or separation apportions assets of as in cases of death in Louisiana, ^i 194 Statutes provide method of division of property on dissolution by divorce, J^ 194 Provisions in Texas and California regulating division of prop- erty on divorce, ?^ 195 Upon dissolution of title to separate property not to be divested, ij 195. Assignment of property of upon divorce for adultery or ex- treme cruelty in California, ij 195. Assignment of property upon divorce for other causes in Cali- fornia, i^ 195. Partition of property of in California on divorce, § 195. Distribution of estate on divorce in Washington and Nevada, f5 196. Power of court in Washington over disposition of property on divorce, ^ 196. Power of court in Nevada over disposition of property on divorce, § 196. Authority of courts in dividing and distributing property of in cases of divorce, >5 198. Equitable rule on divorce is to divide property of equally, Si99- Property of equally divided on divorce in California except in cases of adultery and extreme cruelty, J^ 201. Court may award whole of property to wife in certain cases, §201. Court on divorce may appoint referee to ascertain amount of property, ^201, note. Instances of unequal distribution of property in certain cases, ^ 201, notes. Divorce effects dissolution of, J;i^ 202, 208. Wife must show acceptance of to entitle her to division of assets, >5 208. When deeds of separation of property of void, Jj 209. Where decree of divorce makes no disposition of property, in- terests of spouses in are not affected, >^ 209. Property of divided equally in Nevada except in cases of adul- tery and extreme cruelty, § 209. 448 INDEX. COMMUNITY — continued. Where complaint states existence of property, court on divorce may divide and set apart homestead, § 211. Dissolution of by death and descent of property of, §§ 217-250. Continuance of after demise of one spouse under Spanish law, §217. Demise of one spouse works dissolution of, §217. Continues after dissolution by death for purpose of liquidating debts, § 217. Statutes provide rules of descent of property in all states, §218. Death of either spouse works dissolution of as a legal conse- quence, § 220. Upon dissolution, all effects of presumed common, § 220. Division of assets of upon dissolution, § 220. Shares of spouses equally liable for debts of upon dissolution, § 220. Wife may exonerate herself from liability for debts by renun- ciation, g 220. Dissolution of property in Louisiana on dissolution, ^ 220. On dissolution all property held by spouses presumed to belong to, §§ 220, 221. Presumption that all property belongs to on dissolution may be rebutted, 4^221. Continues after dissolution as to fruits and revenues until par- tition had, i$ 222. Property purchased but not paid for till after dissolution be- longs to, ^ 222. Property purchased after dissolution does not belong to § 223. Creditor cannot compel liquidation of, to subject wife's inter- est to claim, § 225. Iviable for what separate debts upon dissolution, i^ 231. When wife will be presumed to have accepted the, in Louisiana, §227. Rules relating to distribution of and rights in homestead on dissolution, §229. Property of may be sold to pay separate debts of husband after dissolution, ^231. Rule of Spanish law as to continuation of after death of spouse never existed in California, ^ 237. Entire estate of fund for payment of debts on dissolution, § 238. Homestead no part of assets on dissoltition, § 238. Death of either s^jouse works dissolution of in Washington, \ "h 243- "Homestead entry is property of, ^251. Principles of incompatible with those of common law, §§ 252, 253. Source of statutes of Washington, ^259, note. Laws have no extra territorial force, ^261. INDEX. 449 COMMINGLING — EflFect of, §§17, 68. Rule in cases of separate with community effects, § 44. Result where identity of separate property lost by, g 44. Effect of husband's commingling wife's separate estate with com- munity, g 45. EflFect of when willful, ^45 When separate property and its profits are all treated as commu- nity, § 127. COMMERCIAL PAPER — ( See Notes.) COMPOSITION — Of community, i^ij 18. 19 COMPROMISE — Property acquired by of an ante-nuptial claim, is community prop- erty, g 19. CONFLICT OF LAWS— ( See Domicile.) CONJUGAL RIGHTS AND OBLIGATIONS— ( See M.\ritai. Rights.) CONFUSION — (See Commingling.) CONSENT — (See Assent.) CONSIDERATION — Where deed to wife expresses valuable, property becomes commu- nity, § 107. Recital of valuable in deed to wife, authorizes inference that prop- erty is community, t:^ 107. CONSTITUTIONAL — Guarantee of rights of wife, §§ 70, 71 CONSTRUCTION OF STATUTES — Substitution of civil in place of common law, i^ 10. Right to acquire separate property construed strictly, ^^ 65, 260. Liberal to prevent wife from fraud or caprice of husband, § 83. Construction of term "debts of the deceased," ^ 235. Of the term "descendants," J5235. Of term "shall go " equivalent to "shall vest," g 235. Rules of common law when applicable in, ^ 253. In derogation of common law, strict, t^ 254. Strict not applicable to community laws in Louisiana, ij 254. Borrowed from foreign sources by community states, g 254. Common law no aid in of community states, § 254 Rule as to, borrowed from foreign sources, ^ 255. Liberal in Louisiana, § 256. Liberal in Texas, § 257. Liberal in Washington, §258. Strict in California, i^ 258 Applicability of rule regarding statutes in derogation of common law, ^ 259 Most favorable to community, g 260. 29 450 INDEX. CONTRACTS — ( See Parol Contracts) — Between spouses at Spanish law, ^58. Made during marriage presumed to be made by husband, § 80. Made by husband in wife's name are those of husband, §82. Husband cannot make valid to lease community lands in Wash- ington, t; 97 All made by husband are presumed to be for his own as well as for benefit of community, i^ 1 19. Made during the community have priority over those made before or after its existence, Jj 1 19. Community not bound where consideration of inures to separate benefit of wife, >J 119. Joint of husband and wife for benefit of wife's separate property binds community as well as wife, >$ 123 CONTROL — (See Management and Control ) CO-TENANTS — See Tenants in Common. ) CONTINUATION OF COMMUNITY AFTER DEATH — (See Com- munity. ) CONTRIBUTIONS — Mutual of spouses basis of community, §§ 11, 43. Of spouses in labor, etc., ^42. Policy of law regarding, >;42. May be by one spouse only. §42. No accounting between spouses as to, ij 42. Duty of spouses regarding, ^ 43. CONVEYANCE — (See Deeds) — By onerous title belongs to community no matter in whose name title taken, i^ 38. Motives of parties will not control legal effect of, § 38. To both spouses presumed in California to create tenancy in com- mon, >5 40, note. Effect of recitals in, s^ 40, note 60. To both spouses, property becomes community if acquired by oner- ous title, >; 41. Effect of of lands to spouse before marriage S 54. Reciting a purchase excludes proof of gift, >; 57. By gift to one spouse becomes separate property although intended for both, 4^57. From husband to wife may be shown by parol to be a gift, t^ 60. Effect of onerovis between spouses, ij 60. When of community property from husband to wife effectual, g6o. From husband to wife nmst be in good faith, ^ 61. Bona fide creditors and subsequent purchasers may attack from husband to wife, ^61. From husband to wife valid as to third parties and subsequent creditors, f^ 6 1 . Intention of parties as shown by, s^ 62. To wife reciting purchase property prima facie community, Si? 63, 67. INDEX. 451 CONVEYANCE — continued. Real nature of to wife may be shown by parol, ij 67. Presumptions arising from recital of money consideration in, § 67. How such presumptions overthrown, >■ 67. What declarations must contain to give notice of separate claim, Declarations in notice to creditors of rights of parties, ^ 72. Of community realty in Washington must be joined in b}- wife, §^ 78, 95, S8- Spouses may make to each of community interest, % 99. Must be by way of gift, § 99. Must be direct, J^ 99. Must be of entire interest, Jj 100. Must not be in fraud of creditors, i^ 99. To wife reciting valuable consideration, raises presumption that property is community, ^ 107. Recitals in to wife will not overcome presumption that property is community, ~i 107. When parol evidence admissible to rebut presumption arising from ^169. Parol evidence not admissible in Texas to modify as against inno- cent grantees, J; 169. Taken in wife's name not presumptive evidence of separate inter- est, § 170. When presumption arising from to wife may be rebutted, 4^ 170. Rarely taken in joint names of spouses or in wife's name, t^ 171. Force of presumptions arising from, i^ 171. Effect of to wife, ?; 171. Of community property to purchaser with notice of pendency of divorce proceedings void, g 207. CONVENTIONAL COMMUNITY — In Holland, \ 3. France, \ 4. America, \ 7. CORPORATE GAINS — When community, 'i 19. COUNSEL — (See Attorneys.) COURTS — Invested with discretion in distribution of community estate upon divorce, 'i 198. Discretion of in making jurisdiction subject to revision, \ 198. May appoint referee to ascertain amount of community property on divorce, ^201, note. Decree of divorce of foreign, inoperative to transfer community interest in lands, \ 207. COUTUMES — Where of France prevail, \ 4. Abolished by Code Napoleon, \ 4. 452 INDEX. COVERTURE — (See Marriage and Community. ) Spouses jointly seized of community during, ^ 74. Interest in community equal and unalterable during, ? 74. Share of either spouse in community not separately alienable dur- ing, ? 75- Powers of husband during, § 80. Wife cannot obtain redress for mal-administration of community during, ?85. CREDITORS — Rights of under laws of Holland, | 3. When property seized by for community debt burden of proof upon spouse claiming as separate, i! 45. Risks of under community system, ^ 53. Gifts between spouses in fraud of void, ? 59. When conveyance from husband to wife of community property inoperative as to, S 60. Gift from husband to wife must be made in good faith as to, 'i 61. May question validity of conveyances between spouses, § 61. Effect of fraudulent conveyance from husband to wife upon rights of subsequent, ^61. Of husband cannot levy upon stocks purchased with wife's separate funds, § 66, note. Rights of not improved by registry laws, ? 70, Effect of registration laws upon rights of, ^ 72. Recitals in conveyance to spouses notice to, ^ 72. Transactions between spouses must not be in fraud of, H 99. 100. 154-158 Are not innocent purchasers for value, 'i no. Wife may show by parol that property apparently community is in fact separate as against, § 1 10 Dealing with husband have right to look to community property for satisfaction of debts, ^ 117. May rely upon husband's authority to bind community for debts. May deal with husband on the faith of community property being answerable, ^117. Cannot reach separate property of wife when they have not dealt upon the faith of it being community, 1 119, note. Of communitv have first claim upon community estate, ? 120. Separate cannot reach interest of spouses in coummnity estate dur- ing coverture, ^. 121. Money drawn by wife in lottery liable to seizure by for community debts, ^ 125. Rights of when property claimed as separate, § 128. Rights of wife when separate property seized by for community debts, 'i 128. Presumption that property is community may be rebutted by wife as against, ^ 1 28. INDEX. 453 CREDITORS — contitiued. Wife may establish resulting trust in community property against rights of, II no, 130. What facts necessary to establish resulting trust in wife's favor against, § 130. In Louisiana no resulting trust can arise in favor of wife against, Entitled to be subrogated to all rights of community against sepa- rate property of spouses, '^ 141. Right of subrogation does not accrue until dissolution of commu- nity, §^ 141, 142 and 144. Spouses as of community, J^,^ 144, 145. Claim of husband as, postponed to claims of other creditors of of community, § 144. Where husband uses funds of wife to pay community debts wife becomes a, of community to extent of claim, § 145. In Louisiana and Texas where husband mingles wife's sepa- rate property with community property, wife becomes a pre- ferred of community to extent of claim, ^ 145. Property purchased with funds saved by wife from household allowance subject to claims of community, g 158. Power of husband in Washington to make assignment for benefit of, of community realty, J; 153, and note. When donations between spouses will not affect presumptions as against, § 171. Rule that husband may make voluntary assignment for benefit of,. without joinder of wife, ^ 191. Wife deemed a, of community pending suit for divorce in Louisiana, 5^214. Rights and powers of community after dissolution, ^ 223. Rights of and liability of community for payment of debts upon dissolution, i^i^ 224, 247. Rights of to obtain settlement of debts after dissolution of commu- nity, § 225. Cannot compel liquidation of community in order to subject wife's property to payment of indebtedness to communit}-, ^ 225. EflFect of dissolution upon rights of to vacate transfers from hus- band to wife, ^ 237. COURTESY— Abolished by statutes, §§ 10, 51, 253. Never existed in Louisiana and California, J^ 218. When existed in Texas, JJ 218. D. DAMAGES — For personal injuries to spouses belong to community, §§ 19, 95, note. Husband's separate estate liable for where he has defrauded wife of community interest, ^^85. 454 INDEX. DAMAGES — continued. Husband proper party in action to recover for injuries to either spouse, g 1 80. Rule in California as to parties in action to recover for personal in- jury to spouse, >j 180. Exceptions to rule as to parties in actions to recover for personal injuries to spouses, i; 181. Spouses may join in actions for, for wrongful seizure under attach- ment, JJ 181. Husband and wife liable for, for slanderous words spoken by wife 4J181. DATION EN PAYMENT — Acquisitions by when paraphernal, g^ 65, 72. DEATH — Works dissolution of community, §§ 11, 42, 217. Of donor validated gifts from one spouse toother under Spanish law, § 99. Dissolution by divorce apportions assets of community as in cases of in Louisiana, Ji 194. DEBTS — Of spouses under the communio bonorum, \ 3. Under the communio quaestuum, § 3. Under the code Napoleon, J^ 4. Under Spanish law, i; 5. Liability of spouses for after dissolution under code Napoleon, ^ 4. Assets in wife's hands as public merchant liable for community, § 19, note. "When separate and community property are confused all liable for, %^^■ Burden upon wife to identify separate property confused with com- munity when seized for, j; 45. Acquisitions in payment of owing before marriage is separate prop- erty, § 53. Deed of gift from husband to wife invalid as against existing, >^6i. Wife's property as sole trader exempt from husband's, ^ 73. Wife cannot liquidate of community, 4; 80. Community assets are a trust fund for satisfaction of community, |>^ 100, 116. Contracted during marriage must be acquitted out of community funds in Louisiana, 4? 114. Contracted before marriage must be acquitted out of separate funds in Louisiana, ^114 Contracted during marriage and not acquitted at dissolution, spouses equally liable for in Louisiana, i? 114 Community liable for all contracted during marriage in Texas, i^^ 114, 115. Community must be satisfied out of community funds, and those contracted before marriage out of separate funds, under Spanish law, ^^ 114, 115- INDEX. 455 DEBTS — continued. Community liable for all contracted by husband during coverture, §§ 115, 116, 117. Husband's power to contract ceases upon dissolution of mar- riage, g;^ 116, 121. All incurred by husband in management of community are community, ^ 116. Wife has no power to contract except for necessaries, >5§ 116, 117. Husband has power to pledge community estate for payment of, §117. What are coinintinity\ >;>? 118, 119 and notes. All created by husband during marriage are community, § 118. Definition of community, ^§ 118, 119. Presumption is that all created during marriage are community, §^ 119, 174 and note. Joint contract of husband and wife for benefit of wife's separate estate is community, g 123. Where husband has absolute control of community all commu- nity obligations are also individual of husband, t$ 119. Contracted during community take precedence of those con- tracted before or after its existence, § 119. In absence of evidence, presumption is there are none against community, ^§ 119, note, 174, note. Moneys received by wife with husband's consent constitute a community, $^ 119, note. Vendor's lien upon land conveyed to community is a commu- nity, §^ 119, note, 123. Rent due upon lease executed during marriage is a community, § 119, note. A mortgage upon community property is a community, § 1 19, note. What are not community, ^ 119, notes. Incurred after dissolution of marriage are not, § 119, notes. Incurred upon faith of wife's separate estate are not, ^ 119, notes. Fees of attorneys employed by wife to prosecute suit for divorce are not, § 119, note. What property liable for payment of community, %^ 120-126. Entire community estate a fund for payment of, ^ 120. Community has priority over those of individual spouses, §122. All property held by husband and wife presumed liable for, §§ 123, 12S. Wife personally liable in Louisiana for half upon dissolution unless she renounce community, ^^ 123, 124. Separate property of wife not liable for community, i^ 124, Separate property of wife when identity lost by confusion with community liable for, § 124. In Louisiana wife has no power to bind herself or her estate for, §124. 456 INDEX. DEBTS — continued. Separate earnings of spouses liable for, \ 124. Separate earnings of wife exempt from seizure for when living apart from husband, |^ 124. Property purchased by wife with separate earnings liable for, §124. Fruits and revenues of separate property liable for in Louisiana and Texas, ^ 125. Money drawn by wife in lottery is liable for, § 125. Community liable for all incurred by wife as public merchant in Louisiana and Texas, >^ 126. When separate property and its profits commingled, all liable for, § 127. Where separate and community property are commingled, burden upon wife to show that all not liable for, g 128. Property purchased partly with community and partly with separate funds liable for to extent of community interests, g 129. Rights of wife when separate property seized by creditors for com- munity, § 128. Of partnership have preference over rights of community in part- nership property, § 128, note. Community liable for ante-nuptial in Texas and Louisiana, §§ 132- 135. Community liable for private of husband contracted during cover- ture, 4; 133. Incurred by wife for necessaries are community obligations, §§ 136- 140. When separate paid with community funds community entitled to reimbursement upon dissolution, § 143. Where husband uses wife's funds to pay community wife becomes creditor of community to extent of claim, § 145. Of community in Washington, gg 146-151. Separate property of spouses not liable for community, § 146. Separate property of spouses exempt from private debts of each other, g 146. Personal property of community liable for ante nuptial of spouses, § 146. Personal property of community liable for private debts of husband during marriage, § 146, 148. Real property of community not liable for private of spouses during marriage, §§ 147, 148. Real property of community liable only for community, §§ 147, 148. Interests of spouses in community property cannot be seized for satisfaction of separate, § 147. Judgment for tort of husband not a community, g 148. Contracted by husband in carrying on business for benefit of community are community, §g 148, 150, 151. INDEX. 457 BUBTS — continued. Real property of communitj^ not liable for suretyship of hus- band, §^ 148, 151. All contracted during marnage pn'/na /acie comniunitj', ^5 149.. All incurred by husband as managing agent are community^ ^g 150, 151. Wife may create against community for necessaries, J^ 151. Land purchased with funds saved by wife from household allowance liable for of community, § 158. Community property may be subjected to payment of in cases of insanity, § 152. Community debts presumed to be paid from lapse of time, § 174, note. Wife an improper party in action on note fcr of community, § 177. Judgment cannot be obtained for a community against both the community and the wife, § 177. Husband proper co-defendant in suit against wife for her ante- nuptial, i; 179. Judgments for separate of spouses cannot be satisfied out of com- munity property until after dissolution, ^ 193. Husband cannot contract pending divorce proceedings in Louisiana and Texas, ^ 203. Comnmnity continues after dissolution for purpose of liquidating, §217. Shares of spouses in community equally liable for of community upon dissolution, J^ 220. Wife may exonerate herself for liability for community by renun- ciation in Louisiana, §^22.', 227. Interests of heirs in comnmnity vest immediately upon dissolution subject to payment of, >^ 222. Wife's interest residuary on dissolution and extends to one-half community property remaining after payment of, ^222. Rights of creditors and liability of community for payment of, ^224. What constitute of community on dissolution, § 224. Survivor's interest in community on dissolution liable for separate, § 224. How and against what succession community set up, § 224. After dissolution wife can claim nothing until liquidation of com- munity, >^ 224. Death of wife does not affect husband's liability for community, §225. Husband's separate property as well as community liable for of community, J^ 225. Community liable for husband's ante-nuptial, i^ 226. Husband cannot renounce community and absolve himself from, ^227. Upon dissolution one-half community vests in survivor, remainder in heirs, subject to, § 228. 458 INDEX. DEBTS — continued. In default of heirs, entire estate on dissolution vests in survivor, charged with payment of, § 228. Wife as survivor not personally liable for community, i? 230. Husband liable absolutely for connnunity, ^ 230. On dissolution residue distributed after payment of community, §230. Survivor may dispose of community property to liquidate, ^ 231. Community may be sold to pay separate of husband in Texas, J^ 231. For what separate community liable, § 231. Devisee under will of community property takes devise charged with, g 234. Liability of heirs under Mexican law for, ^237. Wife's liability on dissolution for half the, under Mexican law, became fixed when community exhausted, t^ 237. •Contracted subsequent to dissolution no charge on community property, § 238. Administration not necessary where there are no or where survivor liquidates them, i^ 239. Interests of spouses upon dissolution subject to in Waahington, §244. On dissolution survivor and heirs own community estate as tenants in common subject to in Washington, J^ 244. • Interests of spouses descend subject to, and expenses of adminis- tration in Washington, ^ 247. Death of one member does not postpone payment of until death of survivor in Washington, JJ 247. When community liable for separate on dissolution, § 247. When separate property liable for community on dissolution, § 248. Separate estate liable for contracted for necessaries on dissolution, i<24S. DECEIT — ( See Fraud ) — Wife not a proper part)' to actions for, ^ 181. DECREE — ( See Judgment ) — Spouses hold as tenants in common where of divorce directs an equal division of community estate, ^ 202. Of foreign cotirt inoperative to transfer community interest in lands, >J 207. Failure to make of partition on divorce does not prevent subse- quent division of assets, ^ 209. Wife may maintain actions subsequent to of divorce to recover community property, i^ 209. Partition and recovery of community property may be obtained subsequent to of divorce, ^ 209. Where silent on divorce, community interests are not affected, § 209. Where complaint states existence of community property, court may on divorce make a dividing and setting apart homestead, §211. INDEX. 459 DEEDS — (See Conveyances) — Of bargain and sale raise presumption that property is community, Effect of recitals in, 55^66, 105, 173. Will not overcome presumption that property is community, §§105, 173. Are notice to purchasers from husband of wife's rights in Cali- fornia, § 105 Not notice to purchasers from husband of wife's rights in Texas and Louisiana, § 107. Cannot be varied by parol evidence in Texas to affect rights of purchasers, J^J^ 108, 109 Presumptions arising from face of, may be overthrown in Califor- nia by extrinsic evidence, ^ 166 Declarations of husband admissible to show intention in taking in wife's name, >5 170. Effect of presumptions when taken iu wife's name and how re- butted, ij 172. To wife of property purchased by husband imports intention to make separate estate of wife, ^ 172. Intention to constitute separate property presumed from of husband to wife of community property, § 172. Of separation of community property valid on divorce, §209. DEFINITIONS — Of antidos, >; 2. Of ganancial property, ^^5. Statutory, as to what is community property, i^ 13. Of community property, § 18. Of dowry under Louisiana code, ^52. Of paraphernalia and extradotal proj^erty, J$ 52. Of acquisitions before marriage, § 54. Of a community debt, i^§ 118, 119. Of heirs recognized by statute in Texas, Jj 228. Of heirs and descendents in Washington, j^ 246. DESCENT — Marriage contract in Texas cannot alter order of, § 8. Marriage contract in Washington relating to, i:^ 8, note. Nature of statutes of, ^217. Principles upon which statutes of are founded, ^217. Doctrines and principles of Spanish law relating to, ^ 217. Immediately upon death of either spouse community is dissolved and property descends, 4^^;$ 217, 220. Rules of common law regarding abolished, ^ 218. Statutes provide the rule of, of community property in all states, g2l8. Rights and powers of survivor resemble those of survivor in ordin- ary partnership, J; 219. 460 INDEX. DESCENT — continued. In Louisiana, %% 220-227. Doctrine of in Louisiana borrowed from French civil law, ^ 220. All effects of community on dissolution presumed subject to rules of, § 220. Upon, wife may exonerate herself from liability for community by renunciation, § 220. How assets of community divided upon dissolution by death, § 220. Shares of community upon dissolution by death equally liable for community debts, ^ 220. Distribution of community on dissolution by death, § 220. Community begins with nothing and ends presumptively with everything, § 221. Property brought into marriage by spouses excluded from dis- tribution among descendants, § 221. Proof necessary on dissolution to establish separate character of property, §221. All effects upon dissolution are presumed common and subject to division, ^ 220. Title to one-half of community estate vests in heirs of deceased and remainder in survivor, § 222. Interests in community vests immediately upon dissolution subject to payment of debts, i^ 222. Extent and character of interests of survivor and heirs, §222. Survivor and heirs are co-proprietors until partition, § 222. Community continues after dissolution as to fruits and revenues until partition, § 222. Property pitrchased but not paid for till after dissolution be- comes community, ^ 222. Wife's interest on dissolution residuary, and includes one-half of community property after payment of debts, § 222. Survivor may take his half of community in kind, § 222. Rights, interests and powers of spouses and heirs upon disso- lution by death, ^ 222. Separate property of spouse to be resumed upon dissolution, §223. Property purchased after dissolution does not descend, § 223. Survivor cannot conve}- or encumber interests of heirs upon dissolution, § 223. Rights and powers of creditors of community upon dissolution, 'i 223. Rights of creditors and liability of community for payment of debts on dissolution, § 224. What constitute debts of community on dissolution, § 224. Survivor's interest in community liable on dissolution for sepa- rate debts, § 224. INDEX. 461 B'BSC'ENT — ronfinued. How and against what succession community debts set up, § 224. Death of wife does not change husband's HabiHty for commu- nity debts, § 225. Husband's separate property as well as community liable for community debts, ^225. Rights and interests of heirs contingent, § 225 Heirs cannot require settlement of debts under rules of com- mercial partnerships, g 225. Rules of partnership settlements inapplicable to community, ^225. Creditors on dissolution cannot compel liquidation of commu- nity in order to ascertain wife's interest therein, g 225. Community liable for husband's ante-nuptial debts, § 226. Definition of powers and liabilities of husband upon dissolu- tion, § 226. Powers and liabilities of sur\'iving wife defined, § 226. How renunciation by wife and heirs accomplished, § 227, Husband cannot renounce community upon dissolution and absolve himself from debts, § 237. Effect of renunciation of community by wife upon dissolution in Louisiana, ^ 227. Heirs of deceased wife may renounce the community, § 227. Circumstances and conduct which will prevent renunciation by wife, § 227. Under what circumstances wife will be presumed to have ac- cepted the community, g 227. /« 7>;ra^, §§228-234 One-half the community vests in the survivor on dissolution, remainder in heirs subject to debts, § 228. In default of heirs, entire estate vests in survivor charged with debts, § 228. What heirs recognized by the statute, § 228. Definition of descendants, § 228 and note. Grandchildren may inherit under the statute, § 228 What. class of persons primarily inherit the community, § 228. Rule as to adopted heirs, § 228, note. Interests of survivors and heirs defined, § 228. Survivors and heirs in community hold their interests in com- munity as tenants in common, § 228. Heirs not liable to account for advancements except between themselves, § 228. Legal order of descent cannot be altered, § 228. Renunciation by wife when void, § 228, note. Rules relating to distribution and rights in community home- stead, § 229. Rights, powers and duties of survivor, §§ 230, 231. 462 INDEX. DESCENT — continued Wife as survivor not personally liable for community debts, S230. Husband liable absolutely for debts of community, § 230. Rights and duties of survivor similar to those of survivor in ordinarj- partnerships, g 230. Definition of qualified and absolute powers of survivors, § 230. On dissolution community liable for debts, and residue alone distributed, i^ 230. Survivor may dispose of community property to liquidate debts, ^231. Community may be sold to pay separate debts of husband, §231. Duties of purchasers from husband atter dissolution, g 231. Survivor has power to dispose of community homestead to pay debts, § 231. Heirs may enjoin husband from misappropriation of commu- nity property after dissolution, g 231. Limitations on powers of survivor, i^ 231. Survivor inhibited from alienating more than his interest, §231. What presumptions run in favor of acts of survivor, § 231. What separate debts community liable for upon dissolution, ^231. To acquire right to absolute management survivor must qualify under statute, §§ 232, 233. Survivor's powers the same under statute whether husband or wife, j^ 232. Powers, duties and responsibilities of survivors qualifying under the statute, §§ 232, 233. Distinctions between husband's and wife's liabilities as survivor, S232. Survivor qualifying under the statute becomes a trustee, § 232. Power of survivor to alienate comnmnity qualified by the statute, ^ 233. Right of heirs to protection against waste by survivor, §^73. Wife's powers to administer the community cease with her widowhood, 5^233. Powers of survivor under statute broader than those of ordi- nary administrator, g 233. Testamentary powers of spouses limited to undivided interest in community, ^ 234. By electing to take under will, community rights are waived, ^224. Intent of husband to will wife's interest in community must be clear and explicit, ^ 234. The devisee under a will of community property takes devise charged with debts, § 234. IXDKX. 463- DESCENT — continued. Administration of husband's estate does not involve that of the community, t:? 234, note. In California, ^Jj 235.242. Rules of Mexican law recognized in early enactments, § 235. Rights, powers and interests of survivors and heirs, *;;§ 234-239. Statutes of 1850 discussed, ^ 235. Statutes of 1 86 1 discussed, j; 235. Later statutes considered, ^ 236. Constructions of words "debts of the deceased,", ^ 235. Construction of the words "descendants," § 235. Construction of words "shall go" equivalent to "shall vest," ^235. Survivor and heirs hold legal title as tenants in common, § 23. Interests of heirs of deceased spouse vest immediately on dis- solution, i^ 237. Liability of heirs under Mexican law for debts, t^ 237. Wife's liability for half the debts on dissolution became fixed only when community exhausted, § 237. Rule as to survivorship when both spouses perish in same calamity, JJ 237. Rule of Spanish law as to continuation of community after death never existed in California, J^ 237 Marriage must be legal to authorize succession by survivor, 5^237. Wife's interest on her demise not an estate subject to probate, ^237. Effect of dissolution upon right of creditors to vacate transfers between spouses, § 237. Powers and interest of wife after dissolution, § 238. Interest of heirs in community on death of wife, S 238. What must affirmatively appear to entitle survivor to entire estate, J^ 238. The entire community estate a fund for payment of debts, S238. Homestead no part of assets for payment of community debts, §238. Debts contracted subsequent to dissolution no charge on com- munity property, ^ 238. Surviving partner under act of 1850 took estate for purpose of liquidation as in commercial partnerships, § 238. Children of deceased mother become tenants in common with survivor with power in latter to dispose of community to pay debts, g 239. Powers of survivor generally, g 239. Rights of purchasers from survivor, g 239. Wife as survivor may maintain ejectment against trespasser,. §239. 464 INDEX. B^SCEl^ir— continued. No administration necessary where no debts or where survivor liquidates them, ^ 239. Rule of Mexican law limiting devise to testator's community interest recognized, ^5 240. Disposition of community property by will limited to testator's interest, § 240. In absence of will decedent's interest passes to his heirs, § 240. Where husband wills entire community property to wife she takes one-half by will, remainder by law, § 240. Where testator assumes to dispose of entire estate, wife must elect whether to take under or renounce the will, ^ 240. Effect of wife's failure to renounce provision in will, ^ 240. Presumptions regarding testator's intent, to dispose of entire estate, § 240. What circumstances may constitute an election by wife to take under will, § 240. Wife not estopped to elect by causing probate of will, § 241. Posthumous child entitled to inherit where no express pro- vision is made by testator, ^241. Heirs cannot be excluded by executor of will from property divided on divorce, ^ 241. Probate homestead should be selected from community prop- erty, § 242. Homestead excluded from administration and distribution, §242 Effect of homestead dedication under act of 1851, § 242. Rule governing the descent and dedication of homesteads, §242. When homestead becomes sole property of survivor, i:^ 242. On death of husband homestead vests absolutely in wife, g 242. /fi Wasfiingtoii, ^g 243-250. Community is dissolved by death of either spouse, § 243. survivor cannot wind up estate as in cases of commercial partnerships, JJ 243. When administration necessary, ^g 243, 249, 250. Rules of descent, t^§ 243, 245. Where no survivor, rule as to descent, § 243. When interests of heirs become vested they hold as tenants in common with survivor, ij 243. Interests of survivor and heirs on dissolution, ^ 244. Spouses own no specific interest in community until dissolu- tion, t^ 244. Interests of spouses upon dissolution subject to debts, § 244. Survivor and heirs own community estate as tenants in common subject to debts, ^ 244. Rights and interests of survivor same whether husband or wife, g 244. INDEX. 465 DESCENT — contin tied. Who may inherit, ^ 246. Construction of terms, "heirs" and "descendants, " i; 246. When survivor may inherit, J; 246. Interests descend subject to debts and expenses of administra- tion, § 247. Death of one member does not postpone payment of debts until death of survivor, § 247. Theory that interests are held in "abeyance" or "suspended" upon dissolution, § 247. Interests of spouses do not descend until debts are paid, § 247. When community liable for separate debts on dissolution, ^247. Rights of creditors of comnmnity estate on dissolution, ^ 247. When separate property liable for community debts on dissolu- tion, >> 248. Separate estate liable for necessaries on dissolution, § 24S. Wife's separate property exempt from seizure for community debts except for necessaries on dissolution, § 248. Separate and community estates administered in one proceed- ing, J= 249. Confusion incident to present system of administration, ^ 249 When administration necessary to pass title, ^ 249. Theory that heirs cannot maintain action until after probate, ^^ 249-250. Cases where probate is unnecessary, § 250. Testamentary power of spouses over community, § 250. DESCENDANTS — Definition of, JJ 228 and note. Construction of the word, §§ 235, 246. DESERTION— (vSee Abandonment. ) DEVISE— (See Wiu-S ) DISABILITIES — Of wife at common law. jj i. Object of wife's, i^ i. DISCRETION — Statutes vest courts with in distributing estates upon divorce, § 198. Abuse of subject to revision, § 198. When of court in making distribution will be reviewed, i$ 202. In what cases and to what extent court may exercise in making distribution on divorce, J^ 210. DISPOSITION — (See Alienation j— Husband not to make voluntary' in fraud of wife, § 87. Husband cannot make of community in anticipation of divorce, §87. Right to make of comnmnity property vested in husband, -^^ 92, 115- 30 466 INDEX. DISPOSITION — continued. Court on divorce may divest husband's power of over community property, § 200. Husband's power of testamentary limited to his individual interest in community estate, >5J5 234, 240. DISSOLUTION — Of community b}' death of spouse in Holland, ^ 3. Of community not effected by voluntary separation, 4^3. Continuation of community after in Holland, i; 3. Liability of husband on under code Napoleon, ij 4. How effected under code Napoleon, § 4. In Spain, §5. Cannot be effected by spouses, g 8. Presumption as to property on, S n- How of community effected, jj 11. Wife's interest on under Spanish law, i^ 32, Separate property how accounted for on, J^ 255. Acquisitions made subsequent to separate property, ^ 65. Survivor takes half interest in community on, ^ 74. Interests become tangible and separable on, ij 74. Effect of of marriage contract, ^ 74. Interests of spouses inalienable until, g 75. Ownership by wife in community becomes irrevocable upon, § 76. Remedies of wife against husband for frauds become perfected upon, U 85, 86. Rule that wife may have equitable relief before, § 87. Wife cannot have equitable relief before in Louisiana and California, Right of community for reimbursement for funds advanced for sepa- rate benefit of spouses does not accrue until, \ 141. All effects reciprocally possessed by spouses at time of presumed common, ^163. Community presumed to exist until of is shown, § 174, note. Actions to liquidate indebtedness of one spouse to community not maintainable until, ^ 175. Creditors cannot reach individual interest of spouses for separate debts until, >^ 183 Judgments for separate debts of spouses cannot be executed out of community property until after, j^ 193. By divorce, §§ 194-208 Divorce of spouses works a of community, ^g 194, 202, 208. Partition of community property may be effected on, i^ 194. 1 Legal separation of spouses in Louisiana dissolves communitj', § 194 Commiinity dissolved by divorce or legal separation, ^ 194. On, by divorce assets of community not apportioned by opera- tion of law, $5 194. By divorce or legal separation apportions assets of community as in cases of death of spouse in Louisiana, § 194. INDEX. 467 DISSOLUTION — ^cj;///««r death, %i^ 217, 220, 223, 237, 243 Community is dissolved as immediate result of death of one of the spouses, ji 2 1 7 Community exists after by death for purpose of liquidating debts, JJ 217. Death of either spouse dissolves comnuinity as a legal conse- quence, >^ 220. Distribution of community in Louisiana after, by death, ^ 220. Property purchased but not paid for until after is community, S 222. Separate property of spouses to be resumed upon, ^ 223. Survivor's interest in communit}- on, liable for separate debts, ^24. Effect of upon right of creditors to vacate transfers between spouses, i^ 237. Community is dissolved upon death of either spouse in Wash- ington, ^ 243. DISTRIBUTION — In cases of putative marriage, P 14. Upon divorce, ^>? 195-212. Statutory provisions in Texas and California regulating of community property, § 195. Of community property on divorce in Washington and Nevada, g 196. Discretion and power of court in Washington as to of property on divorce, J5§ 196, 212. Discretion and power of court in Nevada as to of property on divorce, i^§ 196, 210. Authority of courts in distributing community and separate property in cases of, ^5 198. Rule for of estates of spouses on dissolution by is equitable^ §198. Extent to which separate property may be subject to, § 199. Statute contemplates an equal of the common property as the equitable rule, ^199. Cases in which separate property may be involved in, \ 199. Court may place entire property of community- in hands of trustee for benefit of spouses and children, ^ 200. 468 INDEX. DISTRIBUTION — continued. Community property to be equally divided on divorce in Cali- fornia, except in cases of adultery and extreme cruelty, § 201. When court may award whole of community property to wife, S 201. Court may appoint referee to ascertain amount of community property for purpose ot making, § 201, note. Instances of unequal in excepted cases, vJ 201, notes. When discretion of court will be reviewed in making, ^ 202. Under what circumstances title to community property- may be decreed to wife, ^. 202. Failure to decree partition does not prevent subsequent division of community assets, ^ 209. Community property divided equally except in cases of adul- tery and extreme cruelty in Nevada, § 209. When entire separate property niHj- be awarded to one spouse in Nevada, § 209. Where complaint states existence of communit}' property court may divide same and set apart homestead, | 211. In order to obtain division parties must bring community prop- erty into court, ^212. Where issues failed to include property of spouses the court acquires no jurisdiction to make division, ^ 212. Of property upon dissolution by death, >?g 220-230. How assets of community divided upon dissolution by death, g 220. Of community property in Louisiana on dissolution by death, §220. Property brought into marriage by either spouse excluded from division, i; 221. Community homesteads how distributed, Ji 229. On dissolution by residue distributed after payment of debts, §230. DISTRIBUTIVE vSHARE - Under Code Napoleon, g 4. Under Spanish law, g 5. DIVORCE — Works immediate dissolution of communitv, ^>: 11, 42, 194, 202, 208. Title to public lands acquired after, J530. Remedies of wife pending in Texas and California, ^J: 85, 86, 87. Proceedings for in California do not qualify dispository powers of husband, g 86. Husband cannot make voluntary conveyance of community prop- erty in anticipation of, Jjii 86, 87. Reasons why wife pending application for should have remedj- against threatened injuries, j; 87. Wife must obtain before asserting dominion over communit}^ prop- erty, g 91. INDEX. 469 DIVORCE — continued . Fees of attorneys employed by wife to prosecute suit for are not a community debt, § 119, note. In Louisiana before decree of is executed, property purchased by wife is liable for comumnit}' debts, >^ 124. Community liable for necessaries furnished wife until granting of, ^5 139, note. Wife entitled to equitable relief pending proceedings for, against fraud of husband, >^ 184. Partition of community may be effected on dissolution by, § 194. Community terminates with, ^ 194. Assets of community not apportioned by operation of law an disso- lution by, §194. Dissolution b}' apportions assets of community as in cases of death of spouse, in Louisiana, § 194. Statutes provide method of division of community estate on disso- lution by, *:$ 194. Statutory provisions in Texas and California, § 195. In distribution of estates on, title to separate property not to be divested in Texas, >5>^ 195, 199, 200 How community property assigned in cases of for adultery or ex- treme cruelty in California, § 195. How assigned in other cases, >5 195. How homestead assigned on, i^ 195. How community property partitioned on, i^ 195. Distribution of community estates on in Washington and Nevada, §196. Discretion and power of court in Washington as to disposition of property on, *:; 196. Discretion and power of court in Nevada, ji 196. Origin of statutes in Washington relating to disposition ot community on, i^ 196. Remedies for protection of interests pending proceedings for, § 197. From bed and board recognized only in Louisiana, § 197. Authority of courts in distributing community and separate prop- erty in cases of, i^ 198. Rule for distribution of community property on, is equitable, § 198. Statutes invest courts with discretion in distribution of estates upon, § 198. Abuse of discretion subject to revision, i^ 198. Extent to which separate property may be subject to distribution on, § 199. Statute contemplates an equal division of the common property as the equitable rule, ^ 199. Statute contemplates a restoration of separate property on, ^ 199. Provision for education and maintenance of children on, fj 199. Cases in which separate property may be involved in distribution on, § 199. 470 INDEX. BIVORQ^ — continued. , Court may place entire property of spouses in hands of trustee on, for benefit of spouses and children, Jj 200. Community property to be equally divided in California on, except in cases of adultery and extreme ci-uelty, J^ 201. When court may award whole of community property to wife on, in California, t^ 201. Court may appoint referee to ascertain amount of community prop- erty on, ^201, note. Instances of unequal distribution in excepted cases on, §201, notes. When discretion of court will be reviewed in making distribution on, ^ 202. On ground of adultery or extreme cruelty does not of itself divest guilty spouse of interest in community, § 202. Where decree of directs an equal division of community, spouses hold as tenants in common, J; 202. Under what circumstances title to property may be decreed to wife on, in Texas, >^ 202. Homestead may be distributed as other community property on, i; 202, note. Wife may require inventory and obtain injunction pending, in Louisiana and Texas, g 203. Husband cannot contract debts or alienate community propei-ty pending in Louisiana or Texas, g 203. Husband must account for revenues in partition of community property on, in Louisiana, ij 203. Wife may vacate simulated mortgages made by husband pending in Louisiana, § -!03. Burden of proof in actions to set aside alienations by husband in anticipation of, ^ 204. Wife may procure injunction to restrain fraudulent disposition by husband, pending, g§ 204, 205. Proceedings to limit husband's power of control and management pending application for, g 204. When court of equity will vacate husband's conveyances on, ^ 204. Purchaser of community property pending, buys /is pendens, % 204. Proceedings incident to dissolution by, §§ 204, 205. Object and effect of action for on community property, i^ 205. Powers of husband over community suspended by proceedings for, § 205. When conduct of husband authorizes a review of decree of by wife, ^ 205. Conveyance by husband pending, is void in Texas, § 205. Wife entitle to satisfaction of decree of out of mass of community property, ^ 205. Effect of notice upon purchasers from husband pending, ^ 205. Rights of wife pending suit for in California, § 206. Wife powerless to restrain fraudulent disposition of community pending, ^ 206. INDEX. 471 DIVORCE — continued. Wife acquires no interest in or right to possession of commu- nity property by virtue of suit for, ^ 2vi6. When wife may procure bill quia timet pending, g 206. Remedies of wife pending in Nevada, § 207. Application of doctrine of lis pendens, % 207. Conveyance to purchasers with notice of pendency of suit for void, § 207. Former husband not proper party to suit to vacate conveyance to purchaser with notice of, § 207. Either spouse may invoke equitable processes for protection pend- ing in Washington, i^ 207. Decree of, of foreign court inoperative to transfer community inter- ests in land, § 207. Proceedings subsequent to, ^ 208. /« Louisiana, I 208. Wife must show acceptance of community to entitle her to division of assets on, i^ 208. Judgment of from bed and board terminates husband's powers, ^208. Dissolution of community by vests each spouse with joint ownership in community, 4$ 208. Wife failing to accept community on within legal delays, pre- sumed to have renounced it, § 208. Failure to decree partition on does not prevent subsequent division of assets, ii 209. Wife maj' maintain action subsequent to decree of to recover com- munity property, t^ 209. Partition and recovery of community propert)^ may be obtained subsequent to decree of, J$ 209. When deeds of separation of community property void on, i? 209. Where decree of is silent community interests are unaflFected, ^ 209. Will be presumed after separation of forty years, § 209. Rights of spouses on in Nevada, t^t^ 209, 210. Separate property of husband subject to distribution on in cases of imprisonmentor adultery, ^ 209. Community property divided equally on except in cases of adviltery and extreme cruelty, § 209. When entire separate property may be awarded one spouse on, § 209. Wife decreed same portion on, as in case of death of husband, when granted on ground of adultery or imprisonment, § 210. In what cases and to what extent court may exercise discretion in making distribution on, i? 210. Fee in separate property not to be divested on unless necessary for wife's support, ^ 210. Court may decree separate property of husband to wife absolutely in cases of for extreme cruelty, § 210. 472 INDEX. DIVORCE — continued. Wife may sue former husband after to set aside fraudulent convey- ance, ^ 2IO. Facts necessary to recover interests in community propert}- subse- quent to, ^ 2 ID. In actions for, place where marriage solemnized not material, § 210. No presumption on that marriage took place or acquisition made at any particular place, § 210. Partition of community property one of the direct results of, § 211. Pleadings and practice in actions for, i$§ 211-215. Allegations for division of community property are essential in actions for, >^ 211. In absence of allegations of community property, presumption is that there is none, S 211. Pleadings should disclose specifically the nature and value of community property, ^211. In suit for wife may make all parties claiming interest in com- mon property parties, §211. Where complaint for alleges existence of common property, court should divide same and set apart homestead, ^211. In suit for court may, when defendant answers, grant any relief consistent with the issues, ^211. Complaint in action for need not comply with rules governing forms of pleadings in statutory actions, § 211. In order to obtain partition on parties must bring their prop- erty into court, § 212. Power of court to make disposition of property on in Washing- ton, ^212. Where issues in action for fail to include property of spouses court acquires no jurisdiction over same, § 212. Failure to make an issue regarding disposition of community property does not conclude the parties, § 213. Wife may enjoin husband from fraudulently disposing of com- munity property subsequent to in California, § 213. Pendency of proceedings for do not interrupt husband's powers over community in California, §213. Extent of husband's powers pending, § 213. Where pleadings silent as to community property it is error to award all to one spouse in action of, for extreme cruelty, §213. Compromise of husband and wife of suit for cannot divest right to solicitor's fees, § 215. t When solicitor's fees allowed on, against wife's separate estate, § 215. Heirs cannot be excluded by executor of will from property divided on, >; 241. DIVISION — Wife must obtain before disposing of community property, § 11. INDEX, 473^ DIVISION — continued. Wife must show acceptance of community in Louisiana to entitle- her on divorce to of assets, ^ 20S. DOMICILE — Effect of upon community relation, §§ 12, 42, 262. Effect of change of, §§ 12, 262. Of husband is that of wife, i^ 47. Of children is that of parents, § 47. Statute of, a personal statute, ^ 47. Effect of change of after marriage on acquisitions, § 47. DONATIONS — (See Gifts)— Prohibited under dotal system, ^ 2. Under law of Holland, ^ 3. When to either or both spouses under code Napoleon, separate and when community, >^ 4. By husband valid if not in fraud of wife, ,^ 4. From sovereign under Spanish law, §5. In Spain governed by civil law, § 5. Joint not recognized by statute in California and Texas, § 9. Recognized by statute in Louisiana, ^ 9. Effect of of public lands, § 25. Of public lands under Spanish law, § 26. Of separate property under Spanish law, i; 50. Joint may be shown to be separate ])y parol in Texas, § 56. When separate property, § 57. Gratuitous from government separate propert)-, ^ 57. Lucrative conveyance to one spouse is separate property though intended as gift to both, § 57. Husband may make of communit}' property to wife, ^§ 99, 154. Must be direct, W 99, 154. Must not contravene rights of existing creditors, ?5?599, 154. Intent to make must be clear, gg 99, 154. Changes property from community to separate, g§ 99, 154. Without element of, does not change character of property, ^^99. 154- Prohibited under Spanish law, ^g 99, 154. Revocable at will under Spanish law, ^ 99. Not revoked became valid upon death of donor under Spanish law, ^599. Valid as between the parties, i^ 99. Not fraudulent /»^r se as to creditors, t^ 155. Proof necessary to establish in wife separate estate by from husband, § 171. May be made directly without intervention of trustee, § 171. Effect of in Louisiana, j:^ 171. DONATION CLAIM — Entry of is separate property, S31, note. DOS — Definition of, ^ 2. 474 INDEX. DOTE OF SPAIN — Definition of, J^ 5. DOWER — Abolished by statutes, §g 10, 51, 253. Never existed in Louisiana and California, i:J 21S. When existed in Texas, ? 218. Superseded by community statutes in Washington and Nevada, §218. DOWRY — Definition of, S 52. What property included in, ^. 52. DUTIES — Of spouses to contribute labor, earnings, etc., J5 43. DOTAL SYSTEM — Contrasted with ganancial, | i. Effect of marriage under, | 2 Property rights under, | 2. Rights and powers of spouses under, | 2. Agreement as to property rights under, § 2. In Holland, dissimilar to civil law, § 3 In France, | 5. Spain, ^ 5. Louisiana, ^.5, 6, 49. Inoperative in Texas and California, ? 6. Origin of in Louisiana, §52 Analogous to separate property statutes, § 52. E. EARNINGS — Of spouses are community property, | 19, note. Of spouses in Washington, |^ 19, 152. In California, § 19, notes. Of wife as sole trader protected, ^ 73. Separate of husband and wife belong to community, ? 124. Property purchased with separate of wife liable for community debts, ^ 124. Husband proper party to bring actions for recovery of wife's, | 176. EJECTMENT — Wife as survivor may maintain against trespasser, | 239. ELECTION — Of wife to take under husband's will waives rights in community, ? 234. Wife must make, whether to renounce or take under will in certain cases, ? 240 What circumstances may constitute an, § 240. Wife not estopped to make by causing probate of wall, § 241. EMANCIPATION — Of wife, § 49. INDEX. 475 ENCUMBRANCE — Husband's power to create in Washington on community realty, Lease for more than a year in Washington is an, ? 97. ENTITY— Community as an, ? 17. Exists only in contemplation of law, ? 17. Theoretically the community is an, ^. 75. ENTRIEvS— (See Public Lands. ) EQUITABLE — Interest of spouses in community property is, § 74. Conveyance taken in name of either spouse, vests title in commu- nity, I 75. Wife's net interest in community property in Texas is, ? 78. Relief of wife after dissolution, ^. 86. Relief of wife before dissolution, ^87. Processes may be invoked by either spouse in Washington for pro- tection of interests pending divorce, ^ 207. Rule as to division of community property on divorce, is, § 199. EQUITY— Wife may invoke remedies of, ? 34. Existing between husband and wife, innocent purchaser not bound to make inquiries, | 63 Of third persons how affected by title to community property, ^ 75. Power of courts of lo grant relief to wife against fraud of husband, Will not extend relief to wife before dissolution of marriage in Louisiana and California, ? 91. When court of on divorce will vacate husband's conveyances, ^ 204. ESTATES — Under community system enumerated, ^ 53. Limitations of each, § 53 By entirety, ^ i. Analogous to community system, ^ i. Characteristics of, ^ i. ESTOPPEL — Rule of regarding possession of moneys and commercial paper, 'i 20. Of wife to show that she was married, after creating impression that she was not, 'i 106. Doctrine of in Washington, ^.lii2, 113 What acts amount to an, ^§ 112, 113. Rules of have broader application than in other states, |^ 112, 113- Purchasers must make reasonable efforts to ascertain if vendor is married to get benefit of, ^^ 112, 113. Can be none where marriage relation does not exist, | 113. Wife not estopped to elect to accept or renounce community by causing probate of will, ^ 241. 476 INDEX. EVIDENCE — (See Proof and Presumptions) — Necessary to show deed of conveyance a gift between spouses, ^ 60. Degree of necessary to overthrow presumptions, ^J566, 164, 165, 167. In absence of, presumption is, there are no debts against coumiunity, § 119, note. In the absence of to contrary the law presumes a community, i^ 163. Necessary for wife to estabHsh separate claim in Louisiana, i^ 156. Preponderance ofsufficient to overthrow presumption, Jig 67, 167, 168. Where property has undergone changes, necessary to establish separate character of, J^ 167, note. When parol admissible to rebut presumption arising from convey- ance, §^62, note, 169. Parol admissible to show separate acquisition by gift, ^ 169. Parol not admissible in Texas to modify deeds as against innocent purchasers, ;^g 63, 169, 108. Parol admissible in Louisiana to show purchase by wife of chattels with paraphernal funds, § 169. Conveyance taken in wife's name not in her favor of separate in- terest, g 1 70. Necessary to establish separate estate in wife by donations from hu.sband, § 171. Not admissible to show deed of gift to husband and wife to be a donation to the wife, >^ 172. Parol admissible to create trust in wife's favor against purchaser from husband with notice of her rights, § 109. Parol admissible to raise trust in wife's favor against one not an innocent purchaser for value, g 109. EXCHANGE — Under Spanish law, §§ 5, 50, 53. Acquisitions b}^ community property, § 19. Of separate property remains separate, gj^ 19, note, 64. Mutual reimbursement of spouses when equivalent to, § 84. Husband may make of community property for separate property of wife, g 99. Must be made in good faith, t^ 99. So made, property becomes separate of wife, g 99. EXECUTION — Wife may enjoin sale of property under against husband, § 105. Issued upon judgment for community debts may be levied upon community property without specific direction, § 123, note. Under judgment against husband and wife in solido, may be levied upon separate propert}' of either, i; 123, note. EXEMPTIONS — Property acquired before marriage exempt from community obliga- tions, g 54. Separate earnings of wife exempt from .seizure for communitj^ debts when living apart from husband in Washington and California, §124 INDEX. 477 EXEMPTIONS — co?i(imied. Separate property of spouses in Washington exempt from private debts of other spouse, § 146. EXPECTANCY — Title of wife in some states a mere, § 76. Wife's interest in community in California is an, i^ 77. EXTRADOTAI^ — ( vSee Paraphernal. ) FEES — (See ATTORNEYS.) FEMME COVERT — Wife as a under common law, ^ 49. FEMME SOLE — Rights of wife as a, § 49. FIDUCIARY RELATION — Husband occupies a towards communitj', gg 87, 117. FOREIGN LAWS — Proof of, § 47. Effect of upon status of acquisitions, § 47. FORFEITURE — Of separate property by commingling with community, g 44. What will induce of community in Spain, g 5. When wife's conduct will work of community property, i? 75. FORUM JUDICUM — Origin of and where in force, g i. FRAUD — Gifts by husband in of wife under code Napoleon, ij 4. Under Spanish law, g 5. Alienation by husband of community property in of wife prohibited at Spanish law, ^$32. Of husband again.st wife's rights may be restrained by injunction, ^J5 35. 79- Susceptibility to of ci editors of community, §53. Law implies in deed of gift from husband to wife when insolvent. When gift from hu.sband to wife is a badge of, § 61. Gifts in of wife prohibited in Louisiana, i^ 61. Sales by husband in of wife will be set aside, ^81. Administration by husband in of wife, ^ 83. Liability of husband for of wife, § 85. Disposition of community estates by husband in of wife, g 87. Husband may dissipate community assets if not in of wife, g 117. Wife may vacate simulated mortgages made by husband pending divorce in Louisiana, i^ 203 Burden of proof in cases of disposition of property by husband in of wife, j^ 204. Wife may have review cf '^cree of divorce when husband guilty of, g 205. 478 INDEX. FRAUDULENT CONVEYANCES — When gift from husband to wife a, ^ 6i. Burden of proof in cases of, i^ 6i and note. Rights of creditors as to, t^ 6i . Rights of subsequent purchasers as to, i^ 6i. Conveyance by gift from husband to wife not fraudulent per se^ § 6i. Against interests of wife under code Napoleon, -i 79. By husband of community property as against wife, g 84. Wife may sue former husband after divorce to set aside, ^210. Wife deemed a creditor pending divorce suit in Louisiana under statute prohibiting, J; 214. FRENCH COMMUNITY — Origin of and in what provinces prevailed, § 4. Resemblance of to other systems, Jj 4. Matrimonial convention under code Napoleon, § 7, Wife's interest in community property mere expectancy under, g 76. FRENCH LAW — Influence of on code of Louisiana, t^ 52. Husband's powers under code Napoleon, g 79. When donations fraudulent as to wife under, g 79. Prohibits wife from exercising powers of administration or aliena- tion over community, § 80. Doctrine of succession in Louisiana borrowed from, § 220. FRUCTUS — In Holland, g 3. Definition of, § 3. FRUITS AND REVENUES — Under code Napoleon, g 4. Under Spanish law, §5. Of separate property, ^ 125. Belong to community and liable for debts of community in Louisiana and Texas, g 125. Community continued after death as to, until partition, § 222. FURNITURE — Wife not liable personally in Louisiana for sold to husband for community, § 124, note. G. GAINS — ( See AcouESTS. ) GANANCIAS — Establishment of by custom in Spain, g i. Right to founded on what principle, § 5. Definition of, \ 5. GANANCIAL SYSTEM — Contrasted with dotal, § i. Of Spain, t^ 5. As defined by Escriche, §5. What is under Spanish law, § 5. INDEX. 479 GERMAN — Community system is of origin, i; i, and note. GIFTS — (See Donations) — Rule of civil law applies to between spouses in France, ^ 4. To third persons, prohibited under code Napoleon, ^4. By husband when prohibited in California, § 35. Of property in marriage contracts in Louisiana, § 52. Rule as to acquisitions of property by, during coverture, ^ 53 Between spouses prohibited under vSpanish law, g 58. Between spouses under Spanish law revocable until death, ^ 58 Rule of Mexican law as to, between spouses, followed in Texas and California, i^ 58. Between spouses were void at common law but sustained in equity,. §58. Valid between spouses under codes, § 59. May be made directly without intervention of trustee, >^ 59. Between spouses in fraud of creditors void, j5 59 To wife from husband favored in law when latter is solvent, § 59. By husband to wife must be in good faith as to creditors, §61. By husband to wife void if husband insolvent, g 61. Inter vivos prohibited in Louisiana, § 61. By husband in California wife must consent to in writing, § 61. Power of husband as to making, ^ 62. In fraud of wife by husband prohibited, g 84. May be established by parol evidence, § 169. Joint to husband and wife constitute them tenants in common,, J^ 172. GILDERLAND — Husband and wife must join in conveyance of community real property in, g§ 3, 95. GRANDCHILDREN — May inherit under Texas statute, ^ 228. GRANTEE — Effect of participating in fraud of husband against rights of wife, J585. Effect of taking conveyance with notice of fraud on wife, § 86. GRATUITOUS TITLE— (See Lucrative T1TI.E.) H. HEAD RIGHT CERTIFICATE — Acquisition of public lands under, § 27. HEIRS — When wife's may renounce under code Napoleon, § 4. Interest of wife in community in California similar to that of, § 76. Husband cannot donate community property in fraud of under code Napoleon, ^ 79. Extent and character of interests of survivor and, in Louisiana,. § 222. 480 INDEX. HEIRS — continued. Survivor and are co-proprietors until partition in Louisiana, § 222. Survivor cannot convey or encumber interest of upon dissolution in Louisiana, ^ 223. Rights and iuterests of are contingent in Louisiana, § 225. Rights, pocuers and interests of in Texas, "%% 228-233. On dissolution one-half community vests in survivor, remain- der in, subject to debts, § 228. In default of, entire estate vests in survivor charged with debts, i^ 228. Who recognized as by statute, § 228. Grandchildren may be under statute, § 228. Who are primarily of the community, i; 22S. Rule as to adopted, J^ 228, notes. , Survivor and of community hold interests as tenants in com- mon, § 228. Not liable to account for advancements, except between them- selves, J5 228. May enjoin husband from misappropriation of community assets, § 231. Right of to protection against waste by survivor. § 233. Rights, powers and interests of in Cati/ornia, ^% 234-239. Survivor and, hold legal title as tenants in common, § 237. Interests of of deceased spouse vest immediately on dissolution of community, g 237. Liability of under Mexican law for debts, ^ 237. Interest of in community on death of wife, § 238. Rights, powers and interests of in Washington, g^ 243-246. Hold as tenants in common with survivor, § 243. Interests of survivor and on dissolution, g 244. Survivor and own community in undivided moieties subject to debts, §244. (^ Who may inherit, ij 246. Construction of the term, \ 246. HISTORY— Of community systems, i; i. HOLLAND — Communio Bonorum in, g 3. Civil law as to dos and antidos could be adopted by nuptial con- tract in, g 3. HOMESTEAD — How assigned in cases of divorce in California, Ji 195. May be distributed as other community property on divorce, ^5 202. Where complaint in action for divorce states existence of commu- nity property court may make division and set apart, ij 211. Rules relating to distribution and rights in of communitj', § 229. Survivor has same power over community to pay debts as of other community property, JJ 231. INDEX. 481 HOMESTEAD — r<3«//«/^^af. Is no part of assets for payment of community debts' in California, § 238. Probate should be selected from community property, ^ 242. Excluded from distribution and administration on dissolutio:i, §242. Effect of dedication of, in California under act of 1851, ^ 242. Rules governing descent and dedication of, i^ 242. When becomes sole property of survivor, § 242. On death of husband, vests absolutely in wife, ^ 242. Entry of on public lands is community property, ^ 25 r . Rule in Washington, ^^31. HUSBAND — Rights and powers under dotal system, ^ 2. Curator of wife in Holland, ^ 3. Rights and powers over community in Holland, -; 3. Under code Napoleon, J^ 4. Interest of in communit}' vested, ij 32. Power of disposition of community property, Jj 34. Powers of management, >J 36. Restraint upon powers of in Washington, J^ 37. Contributions of in labor, etc , JJ 42. Effect of commingling wife's separate property with community, 5^45. Domicile of that of wife. >; 47. Dominion of over wife's separate property, >; 49. Exercises civil rights of wife under Spanish law, >J 50. Moneys received bj- for wife separate property, J; 57. ■Gift by to wife valid under codes, i; 59. Transfer by to wife effectual only when solvent and made bj- way of gift, >$JJ 60, 61. Conveyance by to wife void as to creditors and bona fide purchasers if insolvent, JJ 61, Purchase of in name of wife presumed to be community, i^ 62. When may vest wife with community interest, ^^62. Effect of purchase by with separate funds of wife, 4; 64. Presumed to have administration of wife's paraphernal effects, i; 65. Head and master of community in Louisiana, §§ 76, 80. ■ Treated as real owner of community in some states, iit; 76, 77. Powers of management and control in California, ^ 77. Powers of management and control in Washington, j^ 78. Natural head of the communitj-, j^ 79. Is active partner or sole business agent of community, § 79. Reason for powers of management and control being vested in, 5^79- I'owers of administration under Spanish law, § 79. E;ffect of insanity or imprisonment on powers of, J; 79. 31 482 INDEX. HUSBAND — continued. Effect of abandonment on powers of, jj 79. Wife cannot obstruct powers of, ij So. Ma}' alienate immovables by onerous title, .^ So. Limitation on dispositon,- powers of, Ji 81. Dispository powers of in Texas, ^ 81. Duty of to support family and pay del)ts, ^ Si. Business of communit}- transacted in name of, § 82. Is granted discretionar}' powers, § 82. Extent of dominion over community, ^ 83. Conduct of community affairs must be in good faith, s; S3. Prohibited from making voluntar}' alienations of community prop- erty in fraiid of wife, ^ 84. Pvffect of withdrawal of community assets for individual benefit of, §84. May render equivalent to wife for community funds withdrawn for private use, ij 84. Redress by wife for fraudulent acts of, J; S5. Dispositor}- powers not limited by divorce proceedings in California, ^? 86, 213 Duties incumbent upon in disposing of community property, § 87. Cannot make lease of community lands for more than one year in Washington, § 97. Cannot alienate or encumber community realty in Washington, §§95, 96, 98. Has same dominion over comnmnity personalty in Washington as of his separate property, J^ 98. May transfer real property standing in wife's name, ^ loi. Community liable for all debts contracted by in management of communit}', ij^ns, 1^6, 117. Power of to create debts binding upon community ceases upon dissolution, J5gii6, 121. May extend time of payment and make renewals of debts con- tracted before dissolution, Ji 116. Has sole management of community affairs, >;§ 115, 116. Has unlimited power to bind community for debts, § 117. Given management of comnmnity property on grounds of public policy, ^117. Has power to pledge estate for payment of debts, %W]. May dissipate assets of community if not in fraud of wife, I117. Is a trustee of community funds, \ 117. All debts created by during marriage are community debts, \ 118. Where has absolute control of community affairs, every debt of community is also a debt of, ? 119, All contracts made by are presumed for his own benefit as well as for benefit of community, 'i 119. Not bound when consideration of contract inures to separate bene- fit of wife, j; I Jg. INDEX. 483 HUSBAND — continued Separate estate of liable for debts of community, ?/.l 119, 120, 225, Community liable for private debts contracted by during coverture, I 135- Property purchased b}' with wife's funds belongs to community subject to wile's right to reimbursement, 'i 145. Where uses wife's funds to pay communit}- debts, wife becomes creditor of communit)', pro tanto, ^ 145. In Louisiana and Texas when separate property of wife com- mingled by, with community property, wife becomes preferred creditor of communit}', ^ 145. Personal propert}- of commv:nity liable for private debts of con- tracted during coverture in Washington, ^^ 146, 148. Judgment for tort of not a community debt, I 148. Suietj'ship obligation of not a community debt in Washington, 'i'i 148, 151. All debts contracted by during marriage prima facie community, I 149- All debts incurred b}' as managing agent are community debts, U 150, 151. Rents, issues and profits of communit)* property subject to disposi- tion of, § 151. Power of in W^ashington to make voluntary assignment for benefit of creditors of community realty, j; 153, and note. Property in possession and under control of, presumed to be in community, 1 153. Property brought by from foreign common law domicile, presumed to have belonged to him, ^ 153. Donations from to wife may be made directly without intervention of trustee, ^171. Sole representative in actions involving comnmnity rights, ^? 175, 176. Is proper party to recover earnings of wife, § 176. Proper party in actions to recover damages to either spouse, § 180. Judgments recovered against are treated as both community and personal judgments, ^ 186. Not required to support wife living apart from him without con- sent, I 197. Cannot contract debts or alienate conmiunity property pending divorce in Louisiana and Texas, ^ 203. Must account for revenues on partition after divorce in Louisiana, ? 203. Burden of proof in cases of alienation of community property by in fraud of wife, ^ 204. Divorce proceedings limit powers of control and disposition, ? 204, When court of equity will vacate conveyances by, ^ 204. Powers of suspended by divorce proceedings, § 205. When conduct of authorizes review of decree of divorce by wife, ^ 215. Death of wife does not change liability of for community debts, §225. Community liable for ante-nuptial debts of, i^ 226. Powers and liabilities of in Louisiana defined, i- 226, Cannot renounce comnuinity and absolve himself from debts, ^ 227. Administration of estate of does not involve that of community in Texas. J^ 234, note. HUSBAND AND WIFE — Origin of community of, ^ i. Cannot dissolve community, ^ S. Contributions by and interests of in community, jj 11. Commercial partnerships cannot exist between, ?; 17. Interests of equal, powers of unequal, 4^36. Riile regarding contributions of in labor, etc , i; 42. Effect of iniirmity of one spouse, ^42. No accounting between as to contributions allowed, ?■ 42. Rule as to fidelity of to marriage relation, 4J 42. Duty of to contribute to comnmnity, ^43. Disal)ilities, physical or moral, will not avoid community interests, ^42. Presumptions as to mutual industry of, >; 43. Rights of under common law, J^ 49. Estates of which may exist under conununity system, ^ 52. How separate property of accounted for on dissolution, s- 55. Cannot question title of each other to acquisitions made prior to marriage, ^ 55. Powder to contract with each other under Spanish law, 5- 5S. Donations prohibited between at Spanish law, J; 58. Reason for rule, J5 58 Donations between valid under codes, J^ 59. Traii.-^fers between, if onerous, community, i; 60. Innocent purchasers not bound to take notice of equities between, §63. Proprietary interests of in community equal, ^ 74. No increase of shares of one over other permitted, ij 74. Jointly seized of comnmnity during coverture with half interest over to survivor, ^ 74. Neither owns any specific part of comnuinity before dissolution, May convey community interest to each other in Washington, j; 78. INDEX. 485 HUSBAND AND WIVU — continued. Rights and title of equal as to community lands in Washington, .^ 78. Rights and powers of in Texas, .:i Si. Jointl}' seized of effects of community, ^ 84. In Washington must join in conveyance of community realty, >; 95. Must join in lease of community lands, j; 97. Transactions between, ^§99, 154-158. Authorized when in good faith, Ji^ 99, 154- 15S. Donations, ?;j5 99, 154. Transfers, J;^ 99, 155-158. Exchanges, >; 99. Under Spanish law, ;i 99. Under law of Washington, j;^; 100, 15S. Not fraiidulent />^;- .y^ as to creditors, ^ 155. Can be impeached by existing creditors only, .^^^ 154, 155. Valid as between parties and privies, ^ 156. Necessity for legislation requiring title to real propert}' to be taken in joint names of, ij^ 102, 142. Community is result of joint efforts and contributions of, ? 117. Interests of in community are equal, § 117. Community not liable for charges and expenses of separate prop- ert}' of, ? 1 20. Community estate is distinct from separate estate of, § 120. Interest of in community cannot be reached by separate creditors during coverture, § 121. Communit}- debts have priorit\- over personal debts of, i; 122. All property held by is presumed liable for community debts, >,:i 123, 128. Joint contract of for benefit of wife's separate estate binds both community and separate property of wife, ? 123. Separate earnings of belong to comnmnity, ^ 124. When sejiarate ]:)ropcrty of commingled with community all treated as community, i 127. Community liable for ante-nuptial debts of in I^ouisiana and Texas, U 132-135- Community entitled to reimbursement for all sums advanced for benefit of separate property of, ii§ 141-143. Separate property of entitled to reimbursement for funds advanced for benefit of community, ^§ 141-143. As creditors of communitj^ |? 144, 145. Entitled to reimbursement for all sums advanced to commu- nity, 'U 144, 145. Rights of in community in Washington, ?§ 146-152. Interests of in commianit}- property are equal, ^ 146. Separate property of not liable for community debts, § 146. Interests of in community property cannot be seized for satis- faction of separate debts, ? 147. 486 INDEX. HUSBAND AND WIVE — continued. Personal (propert}' of coniniunity liable for ante-nuptiai debts of, ^ 146. Real propert}' of community not liable for private debts of during coverture, %l 147, 148. Separate property of exempt from private debts of other, ?, 146. May constitute each other attorney in fact with full powers, §152. I. IDAHO — Marriage contracts affecting community, § 7. Rule as to rents, issues and profits, J^JJ 21, 51. Acquisitions of mining" property from government, §30. IDENTITY — Merger of wife's under common law, Jj i. Preservation of wife's under civil law, J- i. IMPRISONMENT — Of husband revives wife's power of community, J; 79. Separate property of husband subject to distribution on divorce in cases of, § 209. Wife decreed same portion of community as in case of death when divorced on ground of husband's, ^ 210. IMPROVEMENTS — On separate property, i^ 19, notes. On entailed property, >$ 5. Effect of by joint labors of spouses on separate property, JJ 19 and notes. Efifect of on separate property, J; 21 and notes. Money expended in under Spanish law falls into community, ^ 50. Augmentations of community property and, by one spouse or by nature, belong to community, i$ 50. INCREASE — Of lands in Texas, i^^ 9, note, 53. Separate property, ij 19, note. What is and what is not, tj 21, note. Of comnmnity property remains community, ^ 19. INHERITANCE — ( See Descent. ) INJUNCTION — By wife to restrain transfer by husband in fraud of rights, ^ 35. When wife may have to protect herself against frauds of husband, §85. Right of wife to for protection of rights pending divorce in Califor- nia, i^t^ 86, 206. Wife may obtain to prevent sale of separate property under execu- tion against husband, sj 105. Wife entitled to pending divorce proceedings against fraud of husband, g§ 184, 204, 205. INDEX. 487 INJUNCTION — continued. Wife may require inventory and obtain pending divorce in Louis- iana and Texas, § 203. Wife may enjoin husband from fraudulently disposing of commu- nity property subsequent to divorce in California, ^213. Heirs cannot by compel settlement of debts as under rules of com- mercial partnerships, j; 235. Heirs may enjoin husband from misappropriation of community property, J5 231. INJURIES — (See Personal Injuries. ) INSANITY — Of husband gives wife active powers over community, §§ 79, 89. Of either spouse in Washington gives other power to dispose or encumber community realty, fif^ 98, 152. INSOLVENCY — Of husband constitutes deed of gift from husband to wife fratidu- lent, g 61. Effect of geneially upon voluntary conveyances, §61. Of husband will not prevent conveyance to wife in Louisiana to replace her separate property converted by him, § 61. INSURANCE — When life policy of not comnmnity, i^ 19, notes. When wife is beneficiary creditors cannot take policy of in payment of community debts, J; 1 19, notes. Life policy of is separate property of beneficiary, ^119, notes. INTENT — Presumptions regarding testators, i; 240. INTERESTS — Wife's in community an expectancy under code Napoleon, j; 4. In community cannot be altered by spouses, $? 8. 0/ spouses in community, Ji 32. Mutual and inseparable during coverture, >^ 32. Husband's is vested under Spanish law, § 32. Wife's mere expectancy under Spanish law, ^^32, 76. Nature of wife's in Texas and Louisiana, i^ 34. Wife's contingent in California, ^ 35. Wife's dependent upon survivorship, §35. Of either may be donated to other, § 59. Is a joint ownership, >^ 74. Equal and unalterable, JJ§ 74, 141. Reason for maintaining equality of, 'i 74. May be of an equitable nature, ^ 74. Not separately alienable, § 75. Fixed by law, >^ 75. Of wife under statutes, \ 76. Of wife on dissolution, § 77. Wife's equal to husband's in Washington, JJ 185. 488 INDEX. INTERESTS — continued. In community attach instantly upon dissolution subject to pay- ment of debts, t^ 222. Extent and character of of survivor and heirs, § 222. Separate of spouses to be resumed upon dissolution, ^ 223. Of survivor and heirs defined, ^228. Survnvor and heirs in community hold as tenants in common, ^228. Intent of husband to will wife's in community, must be clear and explicit, ^ 234. Of heirs of deceased spouse, vest immediately on dissolution, § 237. Wife's on her demise, not an estate subject to probate in California, § 227. INVENTORY— No method for making of personal property acquired before mar- riage, § 55- Of separate estate self-serving declarations, ^ 69. Filing of not admission on part of other spouse, ^ 69. Object of filing, ^ 70. Title vests before, is filed, §§70, 71. Wife may require pending divorce in Louisiana and Texas, ij 203. INVESTMENT OF SEPARATE FUNDS — Proof necessary to trace, §51. JOINDER — (See Parties — Conveyances. ) JOINT — Acquisitions are community property, ^ 19, and note. Labors or funds on separate property belong to individual spouse,. § 19, note. Presumptions as to acquisitions in Louisiana, ^39. Conveyance to both spouses make them tenants in common in California, § 40, note. Lucrative title acquired during coverture belongs to community. Rule as to under Spanish law, ^ 56. Ownership in community, ^ 74. Act of husband and wife in sale of community propertj^ § 80. Communit}- estate is result of contributions of spouses, § 117. Contract of husband and wife for wife's benefit binds community as well as separate estate of wife, g 123. JOINT DEBTORS — Theory that husband and wife are, in respect of community obliga- tions, g>ii9i, 192, 193. JOINT DONATIONS — Where recognized and where not, ij 9. To husband and wife in Texas create tenancy in common, § 41, INDEX. 489" JOINT TENANCY— (See Tenants in Common) — Ownership in coiuniimity not a, J; 74. JUDGMENTS— (See Decree) — Execution issued upon, for community debt may be levied upon community property without specific directions, ^ 123, note. Under against husband and wife in soHdo, levy may be upon sepa- rate property of either, ^ 123, note. Cannot be obtained for a community debt against both commimity and wife, ^ 177. Rule that communit}- property nuist be first exhausted under joint against spouses, § 178. Recovered against husband are treated as both community and personal, i^ 186. Recovered against husband p/ii/ai Jane for community debt, ij 191. Rule that husband maj- alone confess involving community rights, S§ 191, 193- Effect of on husband's contract to find purchaser for community land, ^ 193. For separate debts of spouses cannot be executed out of community property until after dissolution, ^ 193. Sale of communit}- realty on against Inisband and against heirs of deceased wife, ij 193. JUDICIAL — Definitions of a community debt, i^ 119. JURISDICTION — Where issues fail to include property of spouses in suit for divorce court acquires no jurisdiction over same, § 212. Foreign court in granting divorce has no to transfer community interest in lands, >; 207. L. LABOR— (See Earnings) — Acquisitions of either spouse by community, ^19. When improvements on separate property b)' community, § 50. Wife not responsible for performed upon property not represented to be paraphernal, ^ 119, note. LANDS — (See Public Lands, Community, Realty) — Conveyance to one spouse before marriage is separate, § 54. Both spouses must join in conveyance of community in Washing- ton, ^^95. LAW MERCHANT — How community affected by, 5^ 20. LEASE — Husband cannot make of community lands in Washington for more than a year, § 97. vSpecific performance of will be decreed where lessee has taken pos- session under parol agreement with husband and wife, ^97. Rent due upon a executed during coverture is a community debt^ f; 119, note. 490 INDEX. LEGAL COMMUNITY — (See Community) — In Holland, g 3. Statutory, ^ 7. None without legal marriage, i; 14. LEGAL SEPARATION — Of spouses dissolves community, i^>; 11, 194. Wife may avail herself of to save forfeiture of community, j; 75. Comnumity terminates with divorce or, ji 194. LIENS — Husband authorized to create upon community property in Wask- ington, ij 96. Vendor's upon property conveyed to community is a community debt, ^ 119, note. Upon partnership property may be enforced without joining -wives of partners in suits, i^ 128, note. Wife a necessary party in proceedings to enforce, § 192. Wife proper party in suit to foreclose for municipal improvements, §193. LIMITATIONS — Lands acquired imder statute of community propert}-, § 19, note. LIQUIDATION — Surviving partner in California under act of 1S50 took community estate for purpose of, ij 23S. LIS PENDENS — Purchaser of community property pending divorce buys with no- tice of, § 204. How doctrine of applied in Nevada, ij 207. LOANS — When community, J5 19. LOTTERY — Money drawn in, belongs to community, though ticket bought with separate funds, g 125. LOUISIANA— Dotal system in, §§ 5, 6, 49, 52. Source of laws, § 6. Ganancial system retained in, J; 6. When ganancial system introduced in, g 6. Conventional community in, i; 7. Community in declaratory of Spanish law, J; 9. Community rights of residents and non-residents in, ^ 12. Statutory definition of community property, g 13. Putative marriages recognized, i^ 14. Rents, issues and profits in, §J$ 21, 51. Rule as to acquisition of public lands, >; 25. Definition of separate property, J; 50. Dowry defined, ^52. Gifts ittier vivos prohibited, >5 61. INDEX. 491 LOUIvSIANA — continued. When husband may make conveyance to wife for reimbursement, ^6i. Rule as to acquisitions by purchase, ^ 65. Wife as pul)Hc merchant in, § 73. Wife not recognized as possessing title to comnmnity, § 76. Provisions regarding wife's ownership in community, same as Spanish law, J; 76. Desertion by husband does not authorize wife to dispose of com- munity property, ijgi. Spouses may exchange community for separate property iu, ^ 99. Husband has power to alienate separate property of wife unless registered, § loi. Rights of purchasers in, J; 107. Recitals in deed to wife will not overcome presumption that prop- erty is community in, t^ 107. All debts contracted during marriage acquitted out of community funds, i; 114. All debts contracted before marriage acquitted out of separate property of spouse, Jf 114. Spouses equally liable for all debts not acquitted upon dissolution of marriage, J^ 114. Upon dissolution of marriage wife personally liable for half com- munity debts unless she renounce community, g^ 123, 124. Wife has no power to bind herself for commiinity debts in, >5 124. Where husband has administration of paraphernal effects, wife not personally liable upon note executed in solido with husband, ^124. Wife not personally liable for money borrowed by husband to pay off her ante-nuptial debts, § 124 Paraphernal property of wife not lial)le for improvements made thereon by the community until value judicially ascertained, § 124, note. Wife not personally liable for furniture sold to hus1)and for com- munity, § 124, note. Property purchased by wife before decree of divorce is executed liable for community debts, v^ 124. T'ruits and revenues of separate property of spouses belong to com- munity, >5 125. Community liable for debts incurred by wife as sole trader, § 126. Wife not permitted to establish resulting trust in community prop- erty against rights of creditors, ^ 131. Community liable for ante-nuptial debts of spouses, J^i; 132- 135. Community liable for necessaries furnished wife, Ji 138. Where separate property of one spouse increased by labor of both, other entitled to half value of increase, t;i^ 142, 143. Where community enriched by separate funds, owner of latter en- titled to reimbursement upon dissolution, §>; 142, 143. 492 INDEX. LOUIvSI ANA — continued. Right of spouses and creditors to reimbursement accrues upon dis- solution of community, >5 142. Community entitled to reimbursement for value of improvements upon separate property at time of dissolution, § 142. Where separate debts have been paid with community funds, com- munit)- entitled to reimbursement, i:^ 143. Where husband mingles separate property of wife with commu- nity wife becomes preferred creditor of community, i^ 145. Rule as to how presumptions may be overthrown, ^ 166. Proof necessary for wife to establish separate claim, j; 166. Legal separation of spouses dissolves community, i^ 194. Dissolution by divorce or legal separation apportions assets of community as in cases of death of spouse, § 194. Wife may require inventor^-and obtain injunction pending divorce, § 203. Husband cannot contract debts or alienate community property pending divorce, ^ 203. Husband must account for revenues of communitj' on divorce, S203. Wife may vacate simulated mortgages made b}- husband pending divorce, >? 203. Wife nuist show acceptance of community to entitle her to division of assets, § 208. Judgment of separation terminates husband's powers, g 208. Dissolution of community b}- divorce vests each spouse with joint ownership in communit}-, jj 20S Suit for maintenance and support cannot be maintained independ- ent of action for divorce, ^ 214. When wife ma}- obtain separation of property, Jj 216. Separation of property implies a dissolution of community, ^ 216. Separation of property implies a relinquishment of wife's commu- nity interest unless acceptance filed, § 216. Judgment of separation of property must be promptly executed, ji 216. Descent and distribution in, ?; 218. Dower and courtesy never existed in, >^ 218. Doctrine of succession borrowed from French civil law, ;^ 220. Death of either spouse dissolves community as legal conse- quence, § 220. How assets of community divided upon dissolution, g 220. Shares of spouses equalh- liable for community debts iipon dissolution, t; 220. Wife may exonerate herself from liabilit}- for community debts on dissolution by renunciation, i^ 220 When creditors may attack wife's renunciation of community § 220. Distribution of community estate on dissolution by death, § 220, INDEX. 493 LOUISIANA — continued. Upon dissolution all property owned by spouses presumed to be community, i^i$22o, 221. Property brought into marriage by spouses excluded from division on dissolution, %ii\. Proof necessar}' to establish what property was owned at com- mencement of marriage, \ 221. How presumption that property on dissolution belongs to com- mimity overthrown, ^ 221. Title to one-half of community vests in heirs of deceased, remainder in survivor, ^ 222. Interests in comnuinity attach instantly upon dissolution, sub- ject to payment of debts, § 222. Extent and character of interests of survivor and heirs, J; 222. Survivor and heirs are co-proprietors until partition, § 222. Community continued after dissolution as to fruits and reve- nues until partition, S 222. Property purchased but not paid for until after dissolution be- longs to community, ^ 222. Wife's interest on dissolution residuary, or one-half remaining • after payment of debts, §5 222. Survivor on dissolution \r\?^\ take his half of community in specie, \, 222. Rights, interests and powers of spouses and heirs upon dissolu- tion by death, JJ 222. Separate property of spouses to be resumed upon dissolution, ii 223. Property purchased after dissolution not community, >J 223. Survivor cannot convey or encumber interests of heirs upon dissolution, J; 223. Rights and powers of creditors of community upon dissolution, §^223, 224. Liability of comnuinity for payment of debts upon dissolution, ^224 What constitute debts of community on dissolution, i^ 224. Survivor's interest in on dissolution liable for separate debts, ^224. How and against what succession connnunity debts set up, S 224. Wife upon dissolution can claim nothing until liquidation of community debts, JJ 224 Death of wife does not change husband's liability for commu- nity debts, \ 225. Husband's separate property as well as connnunity liable for -community debts, J; 225. Rights and interests of heirs contingent, i^ 225. Heirs cannot by injunction compel settlement of debts as in commercial partnerships, \ 225. 494 IXDKX. LOUISIANA — ^<9,'//z;//^^2i4. Suit for cannot be maintained in Texas and Louisiana independent of action for divorce, § 214. Allowance of pending divorce proceedings authorized in California, ^ 214. Allowances for satisfied first out of community property, then out of husband's separate propertj-, § 214. Additional may be awarded after decree of divorce granted, § 214. Married woman not bound for attorney's fees incurred in procuring, ;i 215. Husband not subject to furnish after divorce where wife was in fault, i; 215. Temporary- may be allowed pending divorce proceedings, i; 215. MALADMINISTRATION — (See Management and Control.) MANAGEMENT AND CONTROL — Of community property under laws of Holland, ^ 3. Restraint on alienation in Gelderland, § 3. Under code Napoleon, j^ 4. Under Spanish law, §g 5, 32, 79. INDEX. 49.> MANAGEMENT AND CO^irROh — conijmied. Reason for husband's poAver of, f^?5 5, 79, 82. Extent of husband's power of generally, Ji^ 33, 85. Husband has sole of community in Louisiana, ^ 76. Husband's power of in California, § 77. Of community realtj- in Washington by husband, §§ 78, 95. AVife no poAvers of except in certain cases, i^jj 80, 115, 116. All contracts made during coverture in of community property presumed to be made by husband, § 80. Husband has absolute of communit}- in Texas and California, g§ 81 ^ 82, 94, 133. Redress for maladministration by husband, § 83. Duties of husband in of communit}-, JJ 87. B}' wife Avhen authorized, i^8S. Abandonment gives wife of communitj' in Texas, ;^j5 89, 90. In Nevada, ^ 88. In California, j^ 91. Husband's power of in Nevada. Jj 94. Husband has sole during existence of community, |^ 115, 116. Husband's power of ceases upon dissolution of marriage, § 116. All debts incurred bj- husband in are community debts, §§ 115, 116.- Of communit}- propertj- vested in husband on grounds of public policy, § 117. Where husband has absolute commiinity debts are also individual debts of husband, § 119. Property in possession and under of husband presumed to belong. to community, ^ 163. MARITAL PARTNERSHIP — (See Community) — Wife is silent member of, ^ 116. MARITAL RIGHTS — Under Roman law, § i, note. Under civil law, § i. Under common law, g i. Under community sj-stem, J^ 11. MARRIAGE — Effect of under dotal system, § 2. Per usuni, i^ 2. Per coemptionem, i^ 2. In Spain creates community, § 5. Must be legal to create communitj', § 14. Common law void in Washington, § 14. Putative good at Spanish law, >; 14. Rule as to fidelity or infidelitv' of spouses to, ;^ 42. Effect of adultery on in Spain, § 5. Creates community, i? 42. Rule of community in harmony with relation of, ji 43. Effect of removal from domicile of upon acquisitions, §47- Acquisitions prior to are separate property, §§53, 54. 496 INDEX. MARRIAGE — continued. Effect of conveyance of lands before, i; 54. Superinduces comnmnitj- as legal consequence, j; 74. Effect of upon woman at common law, g i. Husband's power to bind community for debts ceases upon dissolu- tion of, ii 116. Husband has sole power to create debts against community during, I 115. "6. All debts created liy husband during are community debts, ^ 118. Comnumity liable for debts of spouses contracted l)efore in Louisi- ana and Texas. J$ 132-135. Community liable for private debts of husband contracted during, §133- Immaterial on divorce where solomnized, § 210. Must be legal to authorize succession by survivor, ;i 237. Instance where common law held to affect acquisition in public lands, g 251. MARRIAGE CONTRACT — In Holland, ^ 3. Community prevails unless excluded b}- in France, ^ 4. Community modified by under Code Napoleon, ^ 4. Conventional comnmnity distinguished from legal or statutory, § 7. Community exists without, ^ 7. May be modified or limited, t^ 7. In Texas cannot change legal order of descent, ij S. Dowry under in Louisiana, 5552. Notwithstanding a made in foreign state, further acquisitions in community states presumed communitv, ^ 163. MARRIED WOMEN — As public merchants, ;^ 73. As public merchants may bind community for debt, i; 1 16, note. MAXIMS — Vir et uxor bona non habent separata, i^ 3. Qui epouse la femme, epouse les dettes, i^^4, 135. Community property is a community of property, g 18. Stabit prcEsumptio donee probetur in contrarium, ^ 160. MECHANICS' LIENS — (See LiHN.s.) MERGER — Of rights of spouses in community, ,5; 75. Reason for rule of, i:; 79. MEXICAN LAW — Adopted in what states, JJ 9. Under, comnmnity debts have priority over personal debts of spouses, t^ 122. Rules of recognized in early enactments in California, ij 235. Wife's liability for half the debts under, becomes fixed only when community exhausted, Jj 237. Liability of heirs for debts, J: 237. INDEX. 497 MEXICAN 'LKW — continued. Rule of limiting de\'ise to testator's community interest, recog- nized in California, § 240. Community under similar to Spanish law, § 9. MEXICAN LAND GRANTS — Rule as to in California, ^ 26. MONEYS — Earned in commercial business belong to community, § 19, note. Received from pension, not community, ^ 19, note. Rule as to when community and when not in Washington, § 20. Effect of confusion of separate with community, i^ 44. Have no ear marks, i? 45 . When confusion of does not work forfeiture, J; 45. Expended in improving separate property community credited with at Spanish L,aw, § 50 Difficulty of tracing, >J55. Received by husband for wife is separate, ^ 57. Rule to contrary under Code Napoleon, t^ 57. Received in exchange for separate property is separate, § 64. Received by wife with consent of husband constitute community debt, § 119, note. MORTGAGE — Upon community property is a community debt, ^ 119, note. MUTATIONS — Effect of, of separate property, § 53 N. NECESSARIES — Disposal of property by wife to procure, authority of husband pre- sumed, § 80. Wife may bind comnmnity by contract for, t;§ 116, 117, iiS, 151. Abandonment by husband authorizes wife to dispose of community property for, §§ 102, 116, note. Community liable for, furnished to family, §§ 136-140. Abandonment of husband by wife will not affect liability of com- munity for furnished to her in Texas, ^ 139. Separate property of wife not liable for furnished to husband, § 140. Separate property of wife liable for furnished her only where there is no community property, § 140. Separate estate liable for on dissolution, § 248. NEGOTIABLE PAPER — Rule as to in Washington, § 20. When community and when separate property, ^ 20. Payable to married woman prima facie community property, § 20. Indorsement of by husband will pass title, § 20. What allegations necessary to make wife party to joint, \ 179. 32 498 INDEX. NEVADA — Marriage contracts in, § 7. Wife as sole trader in, § 73. Wife cannot alienate community property upon abandonment in, ?8S. Husband treated as sole owner as to disposition of community property, ^94. Distribution of community property on divorce in, § 196. Discretion and power of courts in as to disposition of property on divorce, ? 196. How doctrine of lis pendens applied in, § 207. Convevance to purchaser with notice of pendency of divorce pro- ceedings avoids deeds in, \ 207. Former husband not proper party to suits to vacate conveyance to purchaser with notice of decree of divorce, \ 207. Separate property of husband subject to distribution on divorce in cases of imprisonment or adultery, § 209. Community property divided equally on divorce except in cases of adultery and extreme cruelty, \ 209. Whole of separate property may be awarded one spouse on divorce in certain cases, ^ 2-9. Wife decreed same portion as in case of death of husband when divorce granted on ground of adultery or imprisonment, § 210. Dower and courtesy superseded by community statutes in, § 218. NEW MEXICO — Dotal system in, ^J- 5, 6. NON-RESIDENTS — Application of community laws to, W 12, 42. NOTICE — Title taken in wife's name constitutes that property is community, Effect of on purchase of community property, § 66. Title taken in wife's name is in some states of her separate rights, § 69. Effect of registration acts as, i^ 72. Transfer with of fraud of husband void as against wife, § 86. What constitutes to purchaser that property is separate of wife, Separate property of wife must be registered in Louisiana to charge purchaser with, g.§ loi, 173. Recitals in deed to wife constitute to purchaser from husband of her rights, ^ 105. When purchaser takes conveyance from husband with of divorce proceedings, equity will vacate, §§ 204, 205, 207. O. OBLIGATIONS — Husband and wife may both be made parties on joint, I 179. INDEX. 499 ONEROUS — Definition of, J^ 5. Effect of title from government, J; 25. Conveyance between spouses, effect of, \ 60. ORIGIN — Of communit}^ system, \ i. Not common law, J? i. Not Roman civil nor Attic law, \ i. Teutonic, \ i. Of French community, | 4. Of American community system, § 6. ORDERS— (See Decrees, Judgments.) OWNERSHIP— (See Community, Husband and Wife.) PARAPHERNAL — Defined in Loiiisiana, § 52. Effect of exchange of, \ 54. Conveyance to husband in lieu of money inherited by wife is, \ 55. Acquisitions as dation en payment, \ 65. Rule as to purchases by husband with funds, \ 65. What must be shown to establish purchase with funds by wife, g 67. What deed must show when purchase made with funds, § 72. Wife not responsible for labor performed upon property not repre- sented to be, \ 119, note. Where husband has administration of effects wife has no power to bind herself personally for debts of community, ? 124 and notes. Property of wife not liable for improvements made thereon by com- munity until value judicially ascertained, \ 124, note. Property of wife not personally liable for money borrowed by hus- band to pay off ante-nuptial debts, \ 124, note. PARAPHERNALIA — Definition of under civil law, \ 2. Under Spanish law, \ 5. Where wife does not have administration of, debts contracted by her are commiinity obligations. \ 119, note. PAROL CONTRACTS— Of husband to lease community lands will be enforced where lessee has taken possession under, \ 97. PARTIES— (See Suits, Pleadings and Practice) — Wife a party to husband's contracts by operation of law under code Napoleon, \ 4. Wife not a in suit to recover damages for trespass, ? 19, note. Wife is necessary to suit upon notes for unpaid purchase money on lands conveyed to her by direction of husband, \ 123. Wives of partners not necessary in suit to enforce mechanic's liens upon partnership property, \ 128, note. Husband sole to actions involving community rights, \ 176. 500 INDEX. PARTIES — continued. Wife legally not a to suits involving community rights, \ 176. Wife neither necessarj^ nor proper to actions involving community rights, § 176. Husband a proper to recover earnings of wife, ^ 176. When wife is an improper to actions involving community rights, § 176. Wife an improper in action on note for community debt, § 177. Wife an improper in actions on note presumptively community although payable in her name, § 177. Husband and wife may both be made on joint obligations of spouses, ^ 179. Husband a proper in suit against wife for her ante-nuptial debts, §179- Wife not proper on note executed jointly by spouses for purchase money, § 179. Wife proper in foreclosure of mortgage executed jointly by spouses, §179- What allegations necessary to constitute wife proper on joint note of spouses, g 179. Husband only proper in actions to recover damages for injuries to either spouse, Ji iSo. Rule in California regarding in actions for personal injuries to spouses, § 180. Exceptions to rule as to in cases of tort, ij iSi. Wife not a proper in actions for tort committed by husband in Washington, ^ iSi. When husband and wife may join in actions for wrongful seizure iinder attachment, f; 181. Husband and wife proper for slanderous words spoken by wife, ^181. Wife not a proper to actions for deceit and injury to community property, § 181. Instances in which husband only necessarj' or proper in actions for damages against community, \ i8r. Rule as to when action involves conflicting interests between spouses, § 1 84. Husband not a proper on contracts executed by wife as sole trader, § 184. Rule regarding in actions involving community rights generally, I 186. Judgments recovered against husband as sole, treated as both com- munity and personal judgments, g 186. To actions in Washington, %% 187-190. To actions relating to community property, § 185. Rule as to, same as other states except as to actions involving realty, ^ 185. Husband's power of representation of community in actions, limited, >; 185. INDEX, 501 V ARTIES — conh'nued. Theory that wife is neither a necessary nor proper, i^ 187. Theory that wife's interest in community is represented by husband, § 187. Theory that wife is a proper, to actions involving community rights and liabilities, ^ 189. Theory that wife is a necessary to actions involving community rights and liabilities, § 190. Theory that husband and wife are joint as to community obliga- tions, §§ 191, 192, 193. Rule that husband may alone confess judgment involving commu- nity rights, §§ 191, 193. Rule that husband may make voluntary assignment for benefit of creditors without joinder of vdfe, ^ 153 and note, §191. Wife a necesary in mechanics' liens proceedings, § 192. In what actions and against whom rights of wife may be litigated, Wife a proper to foreclosure of assessment liens for municipal im- provements, 'i 193. Former husband not a proper to suit to vacate conveyance to pur- chaser with notice of divorce proceedings, ^ 207. In suit for divorce wife may join as all persons claiming an interest in community property, g2ii. PARTITION — Of community interests of spouses effected only by dissolution of marriage, ^ 74. Of community may be effected on dissolution by divorce, J^ 194. Dissolution by divorce or legal separation apportions assets of com- munity as in cases of death of spouse in Louisiana, § 194. How of conmnmity property may be had in California on divorce, § 195. Of community one of the direct results of divorce. ^211. Communitv continued after death as to fruits and revenues until, 8 222. PARTNER — Husband the active and sole business agent of community, § 79. One spouse cannot become a with the other, § 17. Wife is a silent of marital partnership, ^116. PARTNERSHIP — Community as a, Ji 15. Connnunity distinguished from, ? 16. Cannot be formed between husband and wife, ^ 17. When gains of belong to community, § 19. Ownership in community not that of a, ^ 74. Community as a quasi, ^ 79. Marital distinguished, § 79. Community differs from commercial, § 114. Wife is silent member of marital, § 116. 502 INDEX. PARTNERSHIP —continued. Debts of have preference over rights of coininunity as against property of, \, 12S. note. Mechanics' lien may be enforced against property of without join- ing wives of partners in suit, >^ 128, note. Community as an entity not subject to same rules of procedure as commercial, i; 175. Rules of settlement of inapplicable to community, ^ 225. Rights and duties of survivor assimilated with those of survivor in, 8230. Survivor of community in California under act of 1850 took estate for purpose of liquidation, as in commercial, ^ 238. Survivor in Washington cannot wind up estate as in cases of sur- vivor of commercial, ij 243. PAYMENT — Husband has power to extend of community debts after dissolution of marriage, \ 116. Wife cannot transfer community property in of community debts, § 116 and note. Husband alone can make of community debts, \ 116 and notes. Husband has power to pledge community property for of debts, §117- What property liable for of connnunity debts, i;^ 120-126. Entire community estate a fund for, \ 120. PENSION MONEY — (See Moneys.) PERSONAL INJURIES — Wife may maintain action for when abandoned by husband, ? 91. Acquisitions by way of judgment for against either spouse are com- munity property, \\ iSo, iSi. Husband proper party to recover for to either spouse, \ 180. Rule in California, ^ 180. Rule in Washington, § 181. PERSONAL PROPERTY — Acquired in foreign state and removed to community state, \ 47. Acquired before marriage, difficulty of tracing, § 55. No method provided for fixing status of by inventory, \ 55. Husband's powers over in Washington, §^ 78, 82, 98. Of comnmnity liable for ante-nuptial debts of spouses, \ 146. Of community liable for private debts of husband contracted during coverture, \\ 146, 148. PLEADINGS AND PRACTICE — (See vSuiTS) — Pleadings, J?S 176, 179. 21 1-2 13. What allegations sufficient in complaint by husband to recover on chose in action transferred to wife, \ 176. What allegations necessary to constitute wife proper party to suit on joint note of spouses, ^ 179. INDEX. 503 PLEADINGS AND FRACTlCE — conihiued. Allegations for division of community property are proper in actions for divorce, ^211. In absence of allegations as to community property presump- tion is that there is none, § 211. Pleadings in actions for divorce should disclose specifically the nature and value of the community property, §211. Wife may make any one claiming an interest in community property part}' to suit for divorce, § 21 r. Where complaint in action for divorce states existence of com- munity property, court may divide same and set apart home- stead, § 211. In actions for divorce court may, when defendant answers, grant any consistent relief embraced within the issues, § 211. Complaint in actions for divorce need not comply with rules governing forms of pleadings in statutory actions, § 211. In order to obtain partition on divorce parties must by their pleadings bring community property into court, ^212. Where the issues in suits for divorce fail to include the prop- erty of the spouses, the court acquires no jurisdiction over the same, § 212. Failure to make an issue in suits for divorce regarding disposi- tion of community property does not conclude the parties, §213. Where pleadings silent as to community property it is erron- eous to award all to one spouse in actions for divorce for ex- treme cruelty, g 213. Practice, \\ 1 75-193- Actions are not prosecuted against community as an entity, ^175- Community as an entity not subject to same rules of procedure as commercial partnerships, \ 175. Actions to liquidate indebtedness of one spouse to community not maintainable dviring coverture, \ 175. Husband sole representative in actions involving community rights, |§ 175, 176. Wife legally not a party to suits involving community rights, §176. Wife neither necessary nor proper party to community actions, § 176. Wife's interest in community sufficient when related to trial judge to constitute disqualification to try cause, § 176. Joinder of wife in ejectment to recover community land is ground for motion to dismiss as to her, i? 176. Husband proper party to recover earnings of wife, § 176. When wife is an improper party to actions involving commu- nity rights, g 176. 504 INDEX. PLEADINGS AND PRACTICE — ro«//;/«;j;36, 85. Limitation upon husband's dispository, ^ 81. Husband's in Texas in disposing of community, § Si. Of alienation of community property by husband, ^ 84. Husband has general, of alienation, j; 85. Dispository of husband not limited by divorce proceedings in Cali- fornia, ^§86, 213. Husband has absolute over community property and affairs, §92. Of husband to alienate community property when title stands in wife's name, ^93. Of alienation of community property in Washington, ^95. Of husband to create incumbrances in Washington, §96. Of husband to lease community lands in Washington, § 97. Of husband to bind community for debts unlimited, §§ 115-117. Of husband to bind communitv for debts ceases upon dissolution, §116. Wife has no to bind community for debts, j^ 116. Husband has sole of management of community affairs, ^§ 115, Ii6. Husband has, to extend payment or make renewals of community debts after dissolution, t^ 116. Proceedings to limit husband's over community pending divorce, S 204. Of husband suspended b}- divorce proceedings, J^ 205. Judgment of separation in Louisiana terminates husband's § 208. Of survivor resemble those of survivor in ordinary partnership §219. Of survivor to convey or encumber interest of heirs upon dissolu- tion, § 223. Of creditors of community on dissolution, ^ 223. Definition of and liabilities of husband, Ji 226. Definition of and liability of surviving wife, ^ 226. Of survivor on dissolution in Texas, ^J; 230, 231. Rule of Mexican law limiting, of testamentary disposition, recog- nized in California, J; 240. Dispository limited to testator's half of community property, § 240. PRE-EMPTION ENTRIES — Acquisitions by of public lands, ^^27. Rule as to in Texas and principles on which founded, § 28. Rule as to in Washington, Ji 31. PREFERENCE — Debts contracted during coverture have, over those contracted be- fore or after existence of community, ^ 119. Community debts have over personal debts of spouses, § 122. Debts of partnership have over rights of community against part- nership property, ^ 12S, note. INDKX. 507 PRESUMPTIONS — Under code Napoleon, §j^ 4, 161. Under coutumes of Normandy, i^ 4. Under Spanish law, ij^ 5, 161. Rule of Spanish law as to, changed in California, § 13. Extent of in favor of community, J^J; 17, 48. Reasons for in favor of community, >5j5 17, 160. Advancements and purchases presumed to be for community, § 19, note. Married woman presumed to trade on community funds, §§ 19, note, 176. Regarding moneys and commercial paper, §^ 20, 163. As to acquisitions of public lands, j? 31. Where source of consideration unexpressed, § 38. Motives or intention will not control arising from conveyances, S38. General rule of in Texas, g 38. In Louisiana, >539. How overthrown, i^J$ 39, 84, 164. Attending conveyance to wife, § 40. What conveyance must show to rebut, § 40. Examples of affecting conveyances, >; 40, notes. Arise although legal title in trustee, ^ 40, note. Where conveyance is to both spouses in California, ^ 40, note. As to mutual industry of spouses, § 43. Of gift excluded by recital of purchase, § 57- As to deed of gift from husband to wife of community interest, §60. Where purchase by husband and title taken in wife's name, § 62. How overthrown, JJ 62. When may be rebutted by parol, ^ 62. As to husband's administering wife's paraphernal effects, § 65. As to purchasers in Louisiana generally, ^ 65. Strength of, § 66. Arising from conveyance to married woman for money considera- tion, § 67. Reason for rule, JJ 67. Arise equally against separate rights of either spouse, JJ 67. Power to rebut opens door to fraud, § 69 Inventory of separate propert)^ designed to correct, § 69. How affected by registration laws in Washington, 5571. Unless deed contains sufficient recitals, conveyance to wife creates none in her favor, §§ 72, 170. As to wife's power to dispose of community property for necessa- ries, ^ 80. As to all contracts made by husband during coverture, § 80. Effect of upon rights of parties, § 103. That property in wife's name is community may be rebutted in California, ^i- 103, 104. 508 INDEX. PRESUMPTIONS — continued. As to property being communit)- will prevail over recitals in deed, §105. That property is community cannot be rebutted in Texas, against rights o{ bona fide purchasers, §^ 108, 109. May be rebutted as between parties to deeds and their privies, ^ 109 That every debt contracted during marriage is a community debt, §§119, 174, note. That all contracts made by husband are for his own as well as benefit of community may be rebutted by proof that considera- tion inured to separate benefit of wife, i^ 119. Is that there are no debts against community in absence of proof, § 118, note, ^ 174, note. That all property held by husband and wife is liable for commu- nity debts, J;4< 123, 128. That property is community may be rebutted b}- wife as against creditors, i? 128. Proof to rebut must be clear and satisfactory, ^ 12S. That property in wife's name belongs to community, W loi, 128. That all debts incurred by husband are community debts, W 150, 151 Importance of under community system, \ 159. Cardinal rule as to enunciated, \ 159. Are legal and derive their force from the statute, \ 159. Of community inferred from statutory provisions, § 159. Doctrine of relating to communit}' acquisitions, '<'/. 159. Acquisition by purchase excludes in separate right, | 159. Relating to community, are provisional or conditional, '\ 160. Are legal and disputable, \ 160. FixitA^ and nature of relating to communit}', \ 160. Force and effect of relating to community, ^^ 160, 162. Relating to communit}' under civil law of France, \ 161. History of, ^161. Relating to communit}' of different degrees of potency, \ 162. That property is community stronger where title runs to husband, \ 162. Regarding property purchased soon after marriage, \ 162. Relating to money and negotiable paper in Washington, \ 163. None that property in possession of community belongs to hus- band rather than wife, \ 163. Where matrimonial union has continued for some time, are strong that property is commiinity, \ 163. In absence of proof to the contrary, the law presumes a commu- nity, i< 163. That property in possession and under management of husband is^ community, \ 163. Presumption as to property brought by husband from foreign com- mon law domicile, § 163. INDEX. 509 PRESUMPTIONS — contmued. As to acquisitions in community state, where marriage occurred in common law state, ^163. That all effects possessed by spouses at dissolution are community, ?i63. Burden and degree of proof necessary to overthrow, ? 164. That property is in community, is mere rule of evidence, § 164. Nature of evidence required to overthrow, i:J§ 165, 167. Rule as to how may be overthrown in Louisiana, § 166. Arising from face of deed may be overthrown in California by extrinsic evidence, ^ 166. Preponderance of evidence sufficient to overthrow, |? 167, 168. When parol evidence admissible to rebut arising from conveyance, I 169. Parol evidence admissible to overthrow and show separate acquisi- tion by gift, § 169. Parol evidence not admissible to rebut as against innocent grantees, § 169. How far circumstances will control, § 170. "When may be rebutted as to conveyances taken in wife's name, §170. When donations between spouses will not affect as against creditors and bona Jide ■p\xr chasers, g 171. Force of when conveyance taken in wife's name, § 171. How rebutted when taken in wife's name, j5 172. Arising from deed of husband to wife of community property, §172 How of purchase may be rebutted to show gift to wife, J^ 172. How far controlled by recitals in deed, >5 173. That property is community not overcome by recitals in deed in Louisiana, ^ 173. Effect of recitals in deeds as to in California, g 173, Effect of recitals upon in Texas, § 174. That community continues to exist until dissolution shown, §§ 11, 174, note. From lapse of time that community debts have been paid, § 174, note. Effect of regarding actions involving community rights and liabili- ties, J$§ 187-193. Arising from wife's failure to accept community within legal de- lays, ^ 20S. As to divorce after forty years' separation, g 209. None that marriage took place or acquisitions made at any partic- ular place, ^ 210. As to community property in suits for divorce in absence of allega- tions, ^211. That all effects held by spouses on dissolution are community, ^g II, 220, 222. 510 INDEX. PRESUMPTIONS — contimced. How overthrown, ^ 221. When wife presumed to have accepted community, i; 227. In favor of acts of survivor of community, ^231. Regarding intent of testators, ^ 240. PRIORITY— (See Preference.) PRIZE — Won on lottery ticket belongs to communit}-, ^ 19 note. PRIZE MONEY — When not ganancial, ^ 5. PROBATE — None necessary where there are no debts or survivor liquidates them, ^ 239. Necessity for generally in Washington, §§ 249, 250. Confusion incident to present system of in Washington, § 249. When necessary to pass title in Washington, \ 249. Theory that heir cannot maintain action until after in Washington, gg 249, 250. Cases where unnecessary in Washington, § 250. PROCEDURE — (See Suits, Pleadings and Practice)— Incident to dissolution on divorce, \\ 204. 205. Subsequent to dissolution on divorce, W 208, 209, 210. PROFITS — (See Rents, Issues and Profits) — Effect of commingling of separate with community funds, ^45. Where separate property commingled with its, all treated as com- munity, §127. Earned by investment of separate property of wife fall into com- munity, § 125. PROMISSORY NOTES — (See Notes.) PROOF — Burden of to overcome presumptions as to community property in Louisiana, ij 39. Effect of of want of contribution of one spouse, ^ 43, To trace separate property, §§ 44, 64. To trace separate money, § 45. Burden of in cases of confusion of separate with community prop- erty, § 46. Of laws of foreign states, § 47. To establish property as separate, g 51. What insufficient to establish separate claim, g 54. To trace personal property acquired before marriage, § 55. Burden of when fraudulent conveyance between spouses attacked, g6i. What necessary to overthrow presumption arising from purchase by husband in name of wife, § 62. Parol to show intent of husband taking title in wife's name, § 62. Burden on wife to show purchase to be separate propert}', §§ 67, 105, 107. INDEX. 51J PROOF — continued. By wife to establish right to acquire property for separate benefit in Louisiana, § 65. What necessar}^ to constitute purchase by husband for separate ac- count, >; 65. Burden of upon party asserting separate rights, ^J^ 66, 128. Necessary to segregate in cases of confusion, ^5 68. Value of inventories of separate property as, ^ 69. Effect of recitals in recorded conveyances as, g 72. Necessary to annul husband's sale, §81. Burden of is upon wife to show that separate property commingled with community is not liable for community debts, ^ 127. Burden of in cases of gifts between spouses, ^ 100. To rebut presumption that jiropert)- is community must be clear and satisfactory, >j 128. Burden of upon spouse claiming reimbursement from communit}' to establish validity of claim, § 144. Burden and degree of necessarx- to overthrow presumptions relating to community, §?J54, 164, 165. Burden of to identify separate property rests upon party asserting separate rights, § 164. Burden of in cases of alienation by husband pending divorce, § 204. Necessary to establish what property was owned at commencement of marriage, ~^ 221. PUBLIC LANDS — Rule as to improvements on, t^ 19, note. When coimnunity, g 25, note, i^ 27. Criterion, ij 25. Rule of Spanish law, § 25. In Louisiana, ^ 25. In California, § 26. In Texas, ^ 27. Rule as to bounty lands, ^ 27. , Rule as to head right certificates, § 27. Presumptions as to acquisitions in, § 27. Reason for ruie as to in Texas, ^ 28. Policy of law as to in Texas, § 29. Effect upon status of property acquired in, of death of wife before conditions performed, i^ 29. General rule as to, § 30. Acquisitions of mining property are community, § 30. Rule in Washington as to property acquired in, ^31. Doctrine of relation applied to property acquired in, ^ 31, note. Townsite entries in, §31, note. Homestead and soldiers' entries upon, g 31, note. Donation entries upon, § 31, note. Pre-emption entries upon, ^31, note. School lands, §31. 512 INDEX. PUBLIC liK^'D^ — continued. Effect of rules of land office upon, § 31 Timber land entries, § 31. Equitable title in, >J 30, note. Title acquired in after divorce, § 30, note. Title acquired in after death of spouse, § 31, note. Effect when title acquired upon onerous conditions, § 28. Presumption that advancements for acquiring proceed from com- nuinity, ^ 28. Pure donations from government are separate property, § 57. Homestead entry is community property, §251. Instance where common law marriage held to affect acquisition in, §251. PUBLIC MERCHANT— (See Sole Trader.) PUBLIC POLICY — Management of community property vested in husband upon grounds of, § 117. PURCHASE — Acquisitions by community property, § 19. By husband with wife's funds in Louisiana community property, § 19, note. With husband's separate funds in Louisiana community property, § 19, note. On wife's credit community property, § 19, note. With funds part separate, part community, is proportionately com- munity property, § 19, note. By husband presumed to be for community, § 19, note. Effect where made before dissolution and title acquired .subsequent, § 19, note. Effect of of public lands, § 25. With separate funds how established, .§^ 39, 66. Effect of in name of wife, J;^ 40, 104, 107, 108, 109. In name cf wife out of ordinary course of business, §40. When by either spouse .separate property, J; 51. Rule when with separate funds, g 53. Recital of in conveyance excludes presumption of gift, ^ 57. Effect of with separate and community funds, ^ 54. Effect of when made with wife's separate funds and title taken to husband, >5?5 64, 1 10. Effect of when made with separate funds of wife, § 54. With husband's patrimony, §54, note. What constitutes by husband for separate account, § 65. In joint names with paraphernal funds community property, g 65. In name of wife notice to purchasers from husband of her rights, § 104. Presumptions regarding made soon after marriage, § 152. INDEX. 513 PURCHASE MONEY— Unpaid upon land conveyed to wife by direction of husband is a community debt, Ji 123. Wife is a necessary part}- to suit upon notes for, § 123. PURCHASERS— (See Bona Fide Purchasers) — Notice to where title-in wife's name, ^ 40. Perils of under community system, ^ 53. With notice that conveyance was gift concluded thereby, § 57, note. When subsequent may contest deed of gift from husband to wife, ?J 61. Parol proof inadmissible to modify deeds as to, § 63. Deed of purchase to married woman not notice to of equities be- tween spouses, ^ 63. Rights of with notice of separate claim, § 66. Title in wife's name notice of separate claim in some states, ^ 69. Registration laws for protection of in Washington, ^71. Inadequacy of registration laws, ^ 72 Innocent protected by record title in Texas, ^ 75. Of commimity lands from husband acquire good title, ^ loi. What constitutes notice to of separate character of property-, ^^ loi, 141. From husband when title in wife's name bound to ascertain true character of property in California, §§ 103, 104, 142. Title in wife's name notice to of her rights, ^)i 103, 104, 142. Recitals in deed to wife are notice to of her rights, ^^ 105, 143. Rights of in Texas. ^J; 107, 145 May deal with husband when title stands in wife's name, \l 107, 145. Recitals in deed raise no presumptions in favor of wife against from husband, ^J 107, 145. If deed to wife recites valuable consideration may take trans- fer from husband, \\ 107, 145. Parol evidence not admissible to affect rights of, Jij; loS, 109. Presumption that property is community as against, ^^ loS, 109. Bound bv notice of wife's rights where deed recites valuable consideration paid out of wife's separate funds, §^ 108, no. From husband with notice of wife's rights, take subject thereto, 5; 109. From husband acquire no title where deed to wife shows pur- » chase was for her separate benefit, ^ no. Rights of in Washington, §§112, 113. What acts constitute an estoppel in favor of, §§ 112, 113. Doctrine of estoppel more broadly applied in favor of than in other states, ^jJ 112, 113. From husband protected when wife living apart, ^^ 112, 113. 33 514 INDEX. TVRCHASlERS — coftiin7ied. Bound to use reasonable efforts to ascertain if vendor is mar- ried, §§ 112, 113. Concluded by all that reasonable inquiry would have disclosed, ijij 112, 113. Acquire lands from husband, deeded to wife at their peril in Cali- fornia, JJ 166. When donations between spouses will not affect presumptions as against, J; 171. Registration necessary to give notice to of wife's rights in Louisiana, g 173. Of community property pending divorce huy lis pen dois, i;?; 204, 205, 207. Wife may bring suit against to vacate conve^-ance without joining former husband, ^ 207. Duties of from husband after dissolution, ^231. Rights of from survivor in California, ^ 239. PUTATIVE MARRIAGE — (See Marriage.) Q. QUIA TIMET — Wife may procvire bill to restrain alienation bj- husband in antici- pation of divorce, i^.ij 86, 206. R. RATIFICATION — (See Estoppel.) REAL PROPERTY — (See Reai^ty) — What law applies to, ^ 47. REAL STATUTES — Statutes governing property rights of husband and wife are, ^ 47. REALTY — (See Community ) — Wife's interest and title in in Washington, § 78. Hu.sband's powers over limited in Washington, i; 78. Cannot create encumbrances upon community, § 96. Cannot lease communit)', § 97. Cannot alienate, ^i^ 95, 98 Spouses may transfer community to each other in Washington, § 100. Must be of entire interest, J; 100. Must not be in fraud of creditors, ji 100. Liable only for community debts in Washington, §§ 147-15 1. Power of husband to assign community for benefit of creditors in Washington, § 153, note RECEPTITIA — Definition of, §2. RECITALS — (See Conveyances, Deeds) — Effect of in deeds, ^ 66 and note. In conve3'ances prove nothing, i; 67. INDEX. 515 KECITAhS — am Inured . Effect of in recorded convejjance to wife, ? 72. In deeds to wife will not overcome presumption that property is community, 4^^ 105, 107. Purchaser from husband not bound by in deed to wife in Texas, ?5 107. Of valuable consideration in deed to wife authorizes inference that propert)' is community, ^ 107. Purchaser bound to ascertain if in deed to wife are true in Califor- nia, ? T05. In deed showing valuable consideration paid out of wife's separate fund, notice to purchaser of wife's rights in Texas, § 108. Effect of in controlling presumptions, § 173. In deeds do not amount to presumption in wife's favor in Louisiana, S 173- In deeds do not affect community presumption in Louisiana, ^ 173, What necessary to give notice to purchaser of wife's rights in Louisiana, | 173. Effect of in deeds in California, § 173. Effect of in deeds to wife in Texas, g 174. RECORD — Title of in wife notice to purchaser from husband of true character of property in California, g^ 103, 104. RECORDING — No method for personalty acquired before marriage, J5 55. REFEREE — Court on divorce may appoint to ascertain amount of community property, >5 20i, note. REGISTRATION — Of separate property, § 69. Design of, >^ 69. Failure to make of separate property not prejudicial in Texas, § 70, Failure to make of separate property does not advance rights of creditors, ? 70. In Washington, ? 71. Constitutes cloud on title, ^ 71. Not retroactive, | 72. Vested rights not affected by, § 72. Effect of neglect to make on rights of bona fide purchasers^ I 72. When may be made, § 72. When operates as notice, >? 72. What deed must contain to give notice in Louisiana, J5 72. Husband has power to alienate separate property of wife when not complied with in Louisiana, § loi. REGLSTRY LAWS — Object of, 5i^ 53, 69. Operate prospectively, § 71. 516 INDEX. REIMBURSEMENT — Of spouse out of community ip Holland, j^ 3. For improvements on separate property, § 21, notes. Community entitled to for all funds advanced for benefit of sepa- rate property of spouses, §^ 141 - 143. Right to accrues upon dissolution of community, ^.| 14, 84, 142, 144. Creditors of community entitled to be subrogated to right of com- munity to, out of separate property of spouse, ^^ 141 -142. In Louisiana where separate property increased by common labor of both, other spouse entitled to for half value of increase §§ 19, note, 142. When community enriched by separate funds, owner of latter en- titled to upon dissolution, g 142. Amount of in Louisiana is value of improvements at time of dis- solution, J; 142. Where separate debts paid with community funds, communit}- en- titled to upon dissolution, § 143. Spouses entitled to for all sums advanced to community, §§ 144, 145. Claim of husband to postponed to claims of creditors against com- munity, § 144. Burden upon spouse claiming from community to establish validity of claim, g 144. Property purchased in husband's name with funds of wife belongs to community subject to wife's right to, § 145. Of community for funds used in completing separate acquisitions, § 54, note. Of community for funds converted by husband to private use, ^ 84. Mutual equivalent to an exchange, g 84. REMEDIES — Of wife against collusive sales by husband of community property, §81. Of wife against maladministration by husband, § 85. Of wife to prevent threatened injuries by husband, ^ 87. For protection of interest of wife pending divorce proceedings, §197- Of wife pending divorce in California, ^ 206. REMOVAL — Effect of of spouses after marriage upon acquisitions, $5^47, 123. RENTS, ISSUES AND PROFITS — In Holland, ^ 3. Under code Napoleon, ^ 4. Under Spanish law, ^^ 5, 50. Modification of Spanish law as to, §^9, 24. In what states are community property, ^'i 13, 51. Of community property remain community, ^ 19, note. What constitute, ^ 19 and notes. Interest derived from bonds of one spouse, § 19, note. Profits made in commercial transactions, § 19, note. INDKX. 517 RENTS, ISSUES AND PROFITS — rcwZ/wwri/. Rents of separate lands, ^ 19, note. Crops from separate lands, $^ 19, note. Increase of animals, ^ 19, note. Prize won on lottery ticket, ^ 19, note. In California, J5§ 22, 23. Under Mexican law, § 50. When separate property, § 53. Community property in Louisiana and Texas, J;^ 68, 125, 126. Rent due upon lease made during marriage is a community debt, § 1 19, note. When separate property and its, commingled, all treated as com- munity, ^ 127. Of community property subject to husband's disposition in Wash- ington, t^ 151. RENUNCIATION OF COMMUNITY — In Holland, g 3. In France, § 4. Participation in community defeats power of, Ji 4. In Spain must be expressed, J5 5. Effect of, ^i^ 5, 227. Wife failing to accept community within legal delays, is presumed to have made, § 2C); 216. SEPARATION OF SPOUSES — Effect of generally, ^ 42. Husband not required to support wife after, without his consent, § 197. When deeds of void, >; 209. Divorce presumed after forty years of, ^ 209. Voluntary is null as to third persons, § 216. Acquisitions made during voluntary, fall into community, S; 216. SEPARATE PROPERTY — Under dotal system, >J 2. Liability for comnmnity debts under laws of Holland, ^3. INDEX. 519 SEPARATE PROPERTY — continued. Donations to either spouse under code Napoleon are, ^ 4. Acquisitions by exchange of separate property under code Napo- leon, §4. Husband manager of wife's under code Napoleon, §4. Rents, issues and profits of wife's under code Napoleon, 4^ 4. Under Spanish law, ^^5, 50. Improvements and augmentations to, § 5. Exchanges and re-investments remain separate under Spanish law, ^^5. 19. "Ote. Effect of commingling with community, §§ 17, 68. Influence of community upon, § 17. Difficulty of tracing, >5 18. Purchase with wife's by husband, community property in Louis- iana, § 19, note. Purchase by husband with his, belongs to community in Louisiana, § 19, note. Acquisitions after dissolution are, ^ 19, note, ^ 65. Increase of lands in Texas is, ^ 9, note. Rents, issues and profits of, § 20. When acquisitions of public lands are, § 25. Mexican land grants are, ^ 26. Moneys paid veteran of civil war are, § 29, note. Evidence to maintain against conmmnity presumption, ^ 39. What conveyance must show to establish, ^40, and notes. Rule of presumption as to, changed by statute in California, §41, note. Effect of recitals in conveyance, § 41. When confusion of with community works forfeiture, g 44. Rule where community interest is inconsiderable, g 44. Requisites to maintain status of, § 44. Effect when identity of lost by commingling, §§ 44, 124. Burden of proof in case of confusion of with community property, >5 46. Rights in, not antagonistic to community, g 48. Favored by the law, § 48. Subordinated to community, § 48. Spouses may establish, g 48. Discussion of, §§ 48, 73. Rights of wife in, in Texas and California, ^ 49. Rights of wife in as a./emnie sole, ^ 49. Under Mexican law, ^ 50. Donations and exchanges under Spanish law, g 50. Wife's powers over at Spanish law, ^ 50. Definition of at Spanish law, ^ 50. Exceptions to rule of comnmnity, ^51. Statute determines rule of, § 51. Property owned at time of marriage is, § 51. 520 INDEX. SEPARATE PROVHRTY — conlinued. How traced and origin of, ^51. Dotal system in Louisiana, 5^52. Distinguishing characteristics of, J; 53. Difficulty of tracing, § 53. Rides for distinguishing, ^^53, 54. Acquisitions prior to marriage, ^J; 53, 54. Acquisitions b}- gift, bequest, etc., |; 53. Acquisitions by purchase with separate funds, § 53. Acquisitions by exchange, ^ 53. Acquisitions in liquidation of separate debt, i; 53. Acquisitions for rents, § 53. Acquisitions by increase of lands, ^ 53. Proof required to establish, i^ 54. Difficulty of tracing personalty acquired before marriage, ^55. Effect of acquisition of lands before marriage, § 54. No method provided for making inventory of personalty acquired before marriage, ^ 55. How accounted for on dissolution, =; 55. Acquisitions by gratuitous title after marriage, ^ 56. Pure donations from government are, § 57. Moneys received by husband for wife are, ^ 57. Effect of lucrative conveyance to one spouse intended as a gift to both, § 57. Gift of community interest of one spouse to other becomes, i; 59. Presumption as to gift of community interest from husband to Avife, ^61. How established where title b}- purchase taken in wife's name, ^62. Intention to change community to, may be shown by parol when, §62. Conveyance b}- purchase of husband and title taken in wife's name becomes, § 63. May undergo mutations and changes without losing character, ^64. Identity of must be traced, § 64. Effect of purchase with funds partly separate and partly commu- nity, § 64. Of wife must be registered to prevent alienation by husband in Louisiana, § loi . Purchase by husband with wife's funds and title taken in wife's name becomes, § 64. Property bought with money loaned to wife is, § 64, note. Property purchased with husband's patrimon)- becomes, § 64, note. Right of wife to acquire strictly construed in Louisiana, § 65. What sufficient proof to establish right, ?; 65. When wife may acquire, § 65. Purchase by husband with separate funds is, § 65. INDEX. 521 SEPARATE PROPERTY — continued. Property inherited b}- wife becomes, § 65. Proof necessary to establish, ^ 66. Stocks purchased by husband with wife's separate funds are, g 66,. note. Purpose of registration of, ^ 69. Effect of failure of wife to register, § 70. Registration of in Washington, ^ 71. What must be recited in conveyance of, § 72. Claim against husband's for use of community property for private gain, ^ 84. Of husband liable in damages for frauds against wife, § 85. Property standing in wife's name may lae shown to be as against purchasers from husband in California, ^§ 103, 104. Of wife must be registered to prevent alienation by husband in Louisiana, § loi. All debts contracted before marriage must be acquitted out of, § 114- Policy of life insurance is of beneficiar}-, ^ 119, notes. Creditors cannot reach wife's where they have not dealt upon faith of it being community, Ji 119, note. Liable for its own charges and expenses, § 120. Of husband liable for debts of community, §g 119, 120. Of wife cannot be made liable for community debts without her consent, J^Ji 120, 124. Of spouses distinct from community estate, ^ 120. Wife's protected by statute from debts of husband and community, ?^ 123. Fruits and revenues of belong to community and liable for commu- nity debts in Louisiana and Texas, § 125. When and its profits commingled, all treated as community, ^ 127. Rights of creditors where property claimed as, ^ 128. Rights of wife when seized by creditors for community debt, g 128, Profits earned by investments of wife's fall into community, >5 125. Of wife not liable for necessaries furnished to husband, t^ 140. Of wife liable for necessaries furnished her when there is no com- munity property, § 140. Community entitled to reimbursement for all funds advanced for benefit of, §§ 141-143. Community has claim upon for all funds advanced, ^141. Right to reimbursement accrues upon dissolution of commu- nity, U 141, 142. Creditors of community, entitled to be subrogated to rights of community against, l 141. In Louisiana when improved by common labor of both, other spouse entitled to half value of improvements upon dissolution, I 142. When community enriched by, owner of latter entitled to reim- bursement upon dissolution, 'i 142. 522 INDEX. SEPARATE VROI'ERTY — i-onfi>!ued. Ill Louisiana and Texas when husband mingles wife's with com- munity property, wife becomes preferred creditor of community, ^ 145- ' An acquisition by purchase exchides presumption of, § 159. Is an exception to the general rule, ^ 160. Burden of proof to identify rests upon party asserting claim, § 164. Proof necessary to establish as wife's by donations from husband, In distribution of estates on divorce title to not to be divested, in Texas, ^§ 195, 199. Discretion and power of court in Washington as to disposition of on divorce, ^ 196, In Nevada, § 196. Authority of court to distribute in cases of divorce, ^ 19S. Extent to which maj- be subjected to distribution, ^ 199. Statute contemplates a restoration of on dissolution by divorce, §199- Cases in which may be involved in distribution on divorce, § 199. Of husband subject to distribution on divorce in cases of imprison- ment or adultery, ^ 209. When whole of may be awarded one spouse in Nevada, | 209. Fee of not to be divested on divorce unless necessary for wife's support, ^, 21G. Court may decree of husband absolutely to wife in cases of divorce for extreme cruelty, ^210. Excluded from division on dissolution by death, I 221. Proof necessary to establish, § 221. Husband's as well as community liable for community debts on dissolution, ? 225. Administration of husband's dees not involve that of community estate in Texas, | 234, note. Liable for necessaries on dissolution b}- death, § 248. Wife's exempt from seizure for community debts on dissolution except for necessaries, g 24S. SETTLEMENTvS — (See Marriage Settlements.) SLANDER — Husband and wife liable for by wife, ^181. How judgment executed, ^ 181. SOLE PROPERTY— (See Separate Property.) SOLE TRADERS' ACTS — In what states adopted, § 73. Wife as public merchant in Louisiana, ^. 73. Scope and reason for, § 73. Liability of wife as, ^ 73. Protection accorded under, Ji 73. Wife as keeper of boarding-house not a public merchant, Ji 73, note. Property acquired by wife as public merchant cannot be sold under execution against husband, ^ 105. INDEX. t523 SOLE TRADERS' ACTS — continued. Married woman who is may bind community for debt, ^ ii6, note, § 126. Presumption is that capital employed by wife as public merchant belongs to community, § 126. Wife not liable for debts incurred as, unless separated from hus- band, § 126. Husband not proper party on contract executed by wife as, J; 1S4. SOLVENCY — Of husband necessary to constitute deed of gift to wife valid, ^ 61. SPAIN — Origin of community in, i$ i. SPANISH COMMUNITY — (See Ganancial, Community.) SPANISH LAW — Condition of, i^ 5. Re-enactment of in American states, 'i 9. Modification of as to rents, issues and profits, §§ 9, 24, 50. Fruits of separate property fall into community under, ^ 19. Rule regarding acquisitions of public lands, J^ 25. Husband's dominion over community, | 32. What is separate property under, ^ 50. When improvements of separate property belong to community, §50- Husband exercises civil rights of wife under, j5 50. Acquisitions before marriage, 'i 54. Acquisitions after marriage by gratuitous title, tj, 56. Rule of as to joint lucrative title, ^ 56. Purchase by hvisband with wife's funds community property sub- ject to wife's right to reimVjursement, 'i 65. Presumptions as to acquisitions same as under statutes, i; 66. Rights and interests of wife under, ^ 76. Powers of husband under in administering affairs of community, ^79- Donations between spouses prohibited under, § 99. Not revoked became valid upon death of donor, J; 99, Under, all gains and all debts during coverture were community, § la- under, all debts contracted before marriage acquitted out of sepa- rate property of spouses, ^5 114 ■Community estate a fund for satisfaction of community debts under, | 120. Community debts have priority over personal debts of spouses un- der, ? 1 22. Community liable for debts incurred by wiie as sole trader under, ^ 126. ■Community not liable for ante nuptial debts of spouses under, ^ 132, note. Presumptions relating to community under, Ji 161. 524 INDEX. SPANISH LAW — continued. Doctrines and principles of relating to descent, § 217. Theory of continuance of community after demise of one member under, %2\']. SPECIFIC PERFORMANCE — Will be decreed of lease wiiere lessee has acted upon parol agree- ment, I 97. SPECULATION — Acquisitions by are community property, \ 19. SPOUSES— (See Husband and wife) STATUTES — Of propert)' rights a real statute, ^47. Fixing propert)' rights of spouses, ? 51. Defining separate property acquired before marriage, \ 54. Defining rights of wife as sole trader, J^ 73. Want of uniformity as to rights and interests of wife, ? 76. Qualifying wife's interest in community estate, ^ 77. Wife's interest in cominimity tinder, of Washington, ^ 78. Of Washington require both spouses to join in conveyance of community realty, ^ 95. . ^ Make community realty subject to liens in Washington, J; 95. Give husband management and control of community realty in Washington, ? 95. Give husband absolute control of community personalty, \ 98. Govern power to dispose of community realty in Washington in cases of insanity, J; 98. Authorize spouses to deal directly with each other, \ 100. Necessity for requiring real property to be taken and recorded in names of husband and wife, \ 102. Wife may be estopped from claiming benefit of b\- contract, ,^ 106. Comparison and contrast of, ^jj 114, 115. Under of Louisiana all debts contracted during marriage acquitted out of community funds, ?; 114. • All debts of spouses contracted before marriage acquitted out of separate funds, J; 114. Spouses equally liable for debts contracted during marriage and not discharged at dissolution, j? 114. Under of Texas community liable for all debts contracted during marriage, ^ 114. Exempt separate earnings of wife from seizAire for community debts when living apart from husband in California and Wash- ington, § 124. Make community liable for necessaries furnished to family, §§ 136- 140, 151. Presumption of community is inferred from provision of, § 159. Provide method of division of communitj- estate on dissolution by divorce, § 194. Provisions of in Texas and California regulating distribution of community on divorce, § 195. INDEX. 525 STATUTES — continued. Origin of in Washington relating to disposition of community on divorce, §5:5 196, 259, note. Nature of, of descent and distribution, § 217. Provide rules of descent of community property in all states, § 218. Survivor's powers the same when qualified under, whether hus- band or wife, § 232. Discussion of, of California relating to community, ^j^ 235, 236, STATUTORY COMMUNITY — Distinguished from conventional, >5 7. In what states may be modified or limited by stipulation, J; 7. What is the, § 9. Declarator^' of Spanish law, §9. STIPULATION — (See Marriage Contract, and Statutory Com- munity.) STOCKS — Purchase by husband with wife's separate funds are separate prop- erty, t:; 66, note. SUBROGATION — Creditors entitled to be to all rights of communitj' against separate property of spouses, § 141. SUBSEQUENT CREDITORS — How affected by fraudulent conveyances, ^61. SUBSEQUENT PURCHASERS— When may contest conveyance by gift from husband to wife, §61. SUCCESSION— (See Descent) — In Holland, § 3. In France, fj 4. , SUITS — Responsibility of wife under dotal system, g 2. Husband exercises civil of wife under Spanish law, ?• 50. Are not prosecuted against community as an entity, Jj 175. To liquidate indebtedness of one spouse to community not main- tainable during coverture, \ 175. Husband sole representative in involving community rights, g§ 175, 176. Wife legally not a party to involving community rights, \ 176. Wife neither necessary nor proper party to involving community rights, g 176. Joinder of wife in of ejectment to recover community lands is ground for motion to dismiss as to her, \, 176. Husband proper party to bring for earnings of wife, J^ 176. What allegation sufficient in complaint by husband to recover on a chose in action in wife's name, \ 176. When wife improper party to involving community rights, J; 176. Wife improper party in on note for community debt, Jj 177. Wife cannot maintain to recover land in her name, ^ 177. 526 INDEX. SUITS — CO fi/7/iue(/. Complaint must show sale and delivery to husband in for goods furnished to wife, ?■ 177. Husband proper co-defendant in against wife for ante nuptial debts, §179- Wife not proper part}' in on note executed jointh' by spouses for purchase money, ^ 179. Wife proper part}' in to foreclose mortgage executed jointly by spouses, J5 179. Husband only proper in to recover damages for injuries to either spouse, 5:5 180. Rule in California regarding parties to for personal injuries to spouses, I I So. Exceptions to rule as to parties in for tort, § 181. Wife not proper in for tort committed b}- husband in Washington, ^ 181. Husband and wife may join in for damages for wrongful seizure under attachment, >5 181. Wife not proper to for deceit and injury to community property, i; 189. Theory that wife is a necessary party, \ 190 Rule regarding parties to involving community rights in other states, ^ 186. Effect of presumptions regarding involving community rights and liabilities, gg 187, 193. SURETYvSHIP — Obligation of husband does not constitute a community debt in Washington, Jit^ 148, 151. SURVIVOR — Rights of in Holland, \ 3. INDEX.- 527 SURVIVOR — continued. Wife's interest in California contingent upon being, i;35. Takes half interest in comniunit_y on dissolution, ^ 74. Rights and powers of resemble those of survivor in ordinary part- nerships, I? 219, 230. Extent and character of interests of, | 222. Heirs and are co-proprietors until partition, >^ 222. May take half of coniniiinity in specie, ^ 222. Cannot convey or encumber interests of heirs upon dissolution, I 223 Interest of in community on dissolution liable for separate debts, I 224. Powers and liabilities of husband as, § 226. Powers and liabilities of wife as, § 226. One-half community vests in on dissolution, remainder in heirs subject to debts, ? 228. In default of heirs entire estate vests in charged witli debts, ^ 22S, Interest of in Texas, J; 228. Heirs and hold their interests in community estate as tenants in common, ^^228. Rights, powers and duties of in Texas, §§ 230, 231. Wife as not personally liable for community debts, ? 230. Husband as liable absolutely for community debts, ^ 230. Qualified and absolute powers of defined, § 230. , Maj' dispose of community property to liquidate debts, § 231, Has same power over community homestead to pay debts as over other comnuinity property, JJ 231. Limitations on powers of, ^ 231. Inhibited from alienating more than individual interest, I 231. What presumptions run in favor of acts of, 5^ 231. Must qualify under statute to acquire right to absolute manage- ment, gg 232, 233. Powers of the same when qualified under statute whether husband or wife, ^ 232. Powers, duties and responsibilities of qualifying under the statute, 15^232, 233. Distinctions between husband's and wife's liabilities as, ^ 232. Qualifying under the statute becomes trustee of unique character, 'i 232. Power of to alienate property qualified by statutes, § 233. Right of heirs to protection against waste by, § 233, Wife's powers as to administer comnmnity cease with her widow- hood, t^ 233, Powers of under statute broader than those of ordinary adminis- trator, fj 233. Rights, po'ivers and interests of in California, W 234-239. Heirs and hold legal title to community estate as tenants in common, i^ 237. 528 INDEX. SURVIVOR — continued. What must affirmativel}- appear to entitle to entire estate, § 238. Surviving partner under act of 1S50 took estate for purpose of liquidation, as in commercial partnerships, g 238. Powers of discussed, § 239. Rights of purchasers from, i- 239. When homestead becomes sole property of, J; 242. Rights and pozvers 0/ in Washington, ^g 242-246. Cannot wind up estate as in cases of survivor of commercial partnerships, \ 243. Interests of and heirs on dissolution, ?; 244. Heirs and own comnmnity as tenants in common subject to debts, g 244. Under what circumstances may inherit, s- 246. TENANCY — ( See Entirety. ) TENANTS IN COMMON — Community not that of, § 32. Conveyance to both spouses in California presumed as, ^40, note. Conveyance to both spouses may constitute them, ^41. Joint gift to husband and wife in Texas creates them, \\ 41, 56, note. Spouses may hold property as in California, g 74. Wife becomes in California where property purchased partly vdth community and partly with separate funds, g 129. Where decree of divorce directs equal division of community spouses hold as tenants in common, § 202. Survivor and heirs of community hold their interests as, g| 228, 237. Children of deceased mother hold community as with survivor in California, § 239. When interest of heirs attach they hold as with survivor in Wash- ington, gg 243, 244. TESTAMENTARY — Rule of Mexican law limiting devise to testator's interest in com- munity recognized in California, JJ 240. Powers of spouses limited to individual interests in community, §234. TEXAS — When communit}' introduced and from what source, § 6. Dotal system inoperative in, g 6. Marriage contracts modifying community, § 8. Cannot change order of descent, § 8. Community in declaratory of Spanish law, § 9. Statutory definition of community property, g 13. Earnings of spouses in, § 19. Rents, issues and profits in, \\ 21, 51. Rule as to acquisitions of public lands, g§ 27, 28. Failure of wife to register separate property, §70. Rule as to title to community property, \ 75. Wife's interest in community, g 78. INDEX. 529 TEXAS — continued. Powers vested in husband, § 8i. Abandonment by husband authorizes wife to administer community- property and affairs, §4$ 89-90. Rights of purchasers in from husband, §§ 107-110. May deal with husband where title stands in wife's name, § 107. Recitals in deed to wife raise no presumption against purchaser from husband, J? 107. Where deed to wife recites valuable consideration husband may transfer property to purchaser, \ 107. Deeds cannot be varied by parol evidence to affect rights of purchasers, §§ 107, 108. Held to notice of wife's right where deed recites valuable con- sideration paid out of wife's separate funds, § 107. Presumption that property is community cannot be rebutted as against, ^^ 107, 108. Rights of bona fide purchasers in, I no. Effect of conveyance to either spouse, g in. Community liable for all debts contracted during coverture, § 114. Fruits and revenues of separate property belong to community, §125- Community liable for debts incurred by wife as sole trader, § 126. Community liable for antenuptial debts of spouses, ^g 132-135. Community liable for necessaries furnished to wife, i^ 137. Liable even though wife has abandoned husband, § 139. Community entitled to reimbursement for all funds advanced for benefit of separate property of spouses, t? 143. Right to reimbursement accrues upon dissolution of commu- nity, § 143. When husband mingles wife's separate property with community, wife becomes a preferred creditor of community, ^ 145. Dissolution of commuuity by divorce, gg 202, 203, 218. Under what circumstances title to property may be decreed to wife on divorce, § 202. Wife may require inventory and obtain injunction pending divorce, § 203. Husband cannot contract debts or alienate community prop- erty pending divorce, § 203. Suit for maintenance cannot be maintained independent of suit for divorce, \ 214. Descent and distribution in, §§218-234. Dower and courtesy in, § 218. On dissolution one-half community vests in survivor, remain- der in heirs subject to debts, \ 228. In default of heirs entire estate vests in survivor, charged with debts, g 228. What heirs are recognized by the statute, § 228. 34 530 INDEX. TEXAS — continued. Definition of descendants, ^ 228, and note. Grandchildren may inherit under the statute, § 228. What class of persons primarily inherit community estate, i^ 228. Rule as to adopted heirs, § 228, note. Interests of survivor and heirs defined, \ 228. Survivor and heirs hold their interests as tenants in common, ^ 228. Heirs not liable to account for advancements except between themselves, >^ 228 l,egal order of descent, \ 228. When renunciation of community by wife void, § 228, note. Rules relating to distribution and rights in community home- steads, § 229. Rights, powers and duties of survivor, ^^ 230, 231. Wife as survivor not personally liable for community debts, S230. Husband liable absolutely for debts of community on dissolu- tion, § 230. Rights and duties of survivor similar to those of survivor in ordinary partnership, >5 230. Qualified and absolute powers of survivor defined, \ 230. Residue only distributed after payment of community debts, §230. Survivor may dispose of community property to liquidate debts, § 231. Community may be sold after dissolution to pay separate debts of husband, § 231. Duties of purchasers from husband after dissolution, b$ 231. Survivor has same power over community homestead to pay debts as of other community property, § 231. Heirs may enjoin husband from misappropriation of commu- nity property, ^231. Limitation on powers of survivor, ^231. Survivor prohibited from alienating more than his interest in community estate, ^231. What presumptions run in favor of acts of survivor, J; 231. For what separate debts community estate liable, §231. To acquire right to absolute management survivor must qualify under statute, i^§ 232, 233. Survivor's powers the same when qualified under the statute, whether husband or wife, § 232. Powers, duties and responsibilities of survivor qualifying under statute, J;^ 232, 233. Distinctions between husband's and wife's liabilities as sur- vivor, g 232. Survivor qualifying under statute is trustee of commimity estate, i^ 232. INDEX. 531 TEXAS — continued. Power of survivor to alienate community property qualified under the statute, ^ 233. Right of heirs to protection against waste by survivor, § 233. Wife's power to administer community ceases with her widow- hood, § 233. Powers of survdvor under statute broader than those of ordinary administrator, ^ 233. Testamentary powers of spouses limited to individual interests in community, ^ 234. By electing to take imder will legal rights in community are waived, i^ 234. Intent of husband to will wife's interest in community must be clear and explicit, § 234. The devisee under will of community property takes interest of devisor charged with payment of debts. *■ 234. Administration of husband's estate does not involve that of the community, § 234, note. TIMBER CLAIM ENTRIES — (See Public Lands) — Rule in Washington as to, t; 31. TITLE — Onerous defined, § 5. Lucrative defined, § 5. Acquisitions by onerous are community. \ 5. Acquisitions by lucrative are separate, \ 5. Wife's during coverture, I32. Husband's during coverture, § 32. Vests in husband, \\ 34, 36. Of spouses in community lands in Washington, J$ 37. If onerous may be to either spouse, \ 38. Presumption as to where source of consideration unexpressed, i^ 38. One spouse cannot question of other to property in possession be- fore marriage, § 55. Taken in wife's name raises no presumption in her favor, §§ 40, 62, 67. In wife's name of no effect unless recorded deed contains sufficient recitals in Louisiana, ^ 72. Interest of spouses merged in of community, § 75. What possessed by spouses in community property, ^ 75 Legal to community property, reposes in community, ^5*5 36, 75. vSpouses have beneficial in community, §§ 36, 75. Of wife in community not recognized in Louisiana, ? 76. To community property vests in husband in California, g 77. Of wife in community property beneficial in Texas, § 78. Of wife in community lands vested and absolute in Washington, g 78. Husband alone has power to pass, g 87. In wife's name husband may alienate, \\ 93, loi. 532 INDEX. TITLE — continued. Standing in wife's navae prima facie community, § loi. Not to be divested of separate property on dissolution by divorce in Texas, § 199. Under what circumstances may be decreed to wife on divorce, § 202. To one-half of community estate vests in heirs, remainder in sur- vivor on dissolution, § 222. TORTS — Damages recovered for community property, § 19, note. Judgment for of husband not debt of community, I 148. Wife not proper party in actions for committed by husband in Washington, ^ 181. Community property not liable for husband's in Washington, § 181. TOWNSITE ACT — Acquisitions under are community property, § 31, note, TRACING — (See Proof) — Difficulty of as to community, § 18. TRANSFERS— When authorized between spouses, § 99. Must be by way of gift, I 99. Intention to make must be clear, ^ 99 Must be direct, | 99 Must not be in fraud of creditors, §^ 99, 154-158. Must be made in good faith, gg 99, 154-158. Prohibited under Spanish law, § 99. Not fraudulent per se as to creditors, § 155. Can be impeached by existing creditors only, §^ 154-155. ' Valid as between parties and privies, g 156. Husband may make of community realty, § loi. Even though title stands in wife's name, § loi. Must not be in fraud of wife, § loi. Between spouses in Washington, g§ 100, 158. Authorized by statute, § 100. Must be made in good faith, g 100. TRESPASS — Damages for are community property, 'i 19, note. Acquisitions by reason of personal against either spouse, are com- munity property, § iSo. TRUSTEE — Legal title being in does not affect community character of prop- erty, ? 40, note. Gifts between spouses authorized without intervention of, ^? 59, 171. When wife a for community, ^ 62. Husband exercises the powers of a as to community, §§ 83, 87, 117. Court on divorce may place entire property of community in hands of, for benefit of spouses and children, § 200. Survivor qualifying under the statute occupies position of, in Texas, § 232. INDEX. 533 TRUSTS — Parol may control joint lucrative conveyances, § 56. Secret to husVjand in fraiid of wife avoids conveya-nce, § 86. Assets of community are a for satisfaction of community debts, §§ 100, 116. Parol in wife's favor not permitted against bona fide purchasers in Texas, \\ 107, loS. Wife may establish resulting in community property against credit- ors, §§ no, 130. When resulting arises in favor of wife, \ 130. Not permitted to establish in Louisiana, J^ 131. May be established from separate property on divorce in Texas, § 199- V. VENDEE — ( See Purchasers ) — Acquires no title to communit}- realty unless both spouses join in deed in Washington, g 98 Must at his peril ascertain if vendor is married in Washington, ^^98, 112, 113. Buys at his peril from husband when title stands in wife's name in California, t~^ 103, 104 Bound by all that reasonable inquiry would have disclosed, §§ 112, 113- VENDOR — Purchaser in Washington must make reasonable efforts to ascer- tain if is married, j5^ 112, 113. Lien of upon propert}^ conveyed to community is a community debt, ^119, note. VESTED RIGHTS — Wife has none in community property in California, §77. Title of wife in community realty is a in Washington, § 78. Where wife has in community, she may obtain redress for mal- administration by husband during coverture, § 85. VOID — Donations between spouses at civil law were, ^5 2. Donations between spouses not absolutely, at Spanish law, § 58. Gifts between spouses are, as to creditors, § 59. When acts of wife are, §80. Husband's agreement to convey community realty not absolutely in Washington, § 98. Conveyance by husband pending divorce proceedings is in Texas, ^205. When renunciation by wife is, § 228, note. VOIDABLE — When donations between spouses are, § 58. VOLUNTARY ABANDONMENT— (See Abandonment.) VOLUNTARY ALIENATION — ( See Ai^ienations, Voluntary Con- veyance. ■> 534 INDEX. VOLUNTARY ASSIGNMENT — ( SEE Assignment.) VOLUNTARY CONVEYANCE— When from husband to wife void as to creditors and subsequent purchasers, § 6i. "When valid, §6i. Rule as to between spouses as to subsequent creditors, ^6i. By husband when insolvent prima facie fraudulent and void, t^ 6i. Inter vivos by husband prohibited in Louisiana, g 6i. Husband must have wife's consent to make in California, § 6i. Husband prohibited from making with intent to defraud wife, § 84. By husband of portion of community property without fraudulent intent is valid, >< 84. By husband of community property not void per se, I 84. Restrictions upon by husband pending divorce in California, ^^ 86, 87. VOLUNTARY SEPARATION — In Holland did not dissolve community, § 3. A nullity under code Napoleon, § 4. Does not affect community unless sanctioned by law, ^ 75. Is a nullit}^ as to third persons, §216. Acquisitions made during pendency of fall into community, § 216. W. WAGES — rSee Earnings. ) WASHINGTON — Community rights of residents and non-residents in, § 12. Statutory definition of community property, § 13. Earnings of wife, when community, -when separate, ^19. Acquisition of public lands, effect of, ^31. Wife's interest in community vested, ^i^ 37, 78. Registration of separate property in, effect of, § 71. Registration not retroactive, jj 72. Law of 1871 gave wife power to acquire more than one-half interest in community, g 74. Rule of absolute power of disposition in husband applies only to personal property in, §^ 82, 98. Husband cannot alienate community realty, | 95. Husband's power to create encumbrances, § 96. Both spouses must join in conveyance of community realty, §95. Husband cannot lease community lands, § 97. Spouses authorized to deal with each other, § 100. Transactions between spouses authorized, § 100. Doctrine of estoppel in, %% 112, 113. Has broader application than in other states, §§ 112, 113. What conduct on part of spouses is sufficient to raise an estoppel, ?. 115. Where spouses live apart the non-contracting spouse will be estopped to assert rights against bona fide purchaser, § 117. INDEX. 535 WASHINGTON — continued. Purchaser bound to make reasonable efforts to ascertain if vendor is married, §§112, 113. Purchaser bound by all that reasonable inquiry would have disclosed, ^^ 112, 113. Separate earnings of wife exempt from seizure for community debts when living apart from husband, \ 124. Wife not necessary party to suit to enforce lien upon partnership property, ^ 128, note. Community liable for necessaries furnished to wife, §§ 138, 151. Rights of spouses and creditors in, §§ 146-151. Separate property not liable for debts of community, § 146. Rights of spouses equal, g§ 146, 185. Personal property of community liable for ante-nuptial debts of spouses, \ 146. Personal property of community liable for private debts of husband contracted during coverture, §? 146, 148. Real property of community not liable for private debts of spouses during coverture, i;J5 147, 148. Real property of community not liable for suretyship obliga- tion of husband, i;i; 148, 151. Real property of commiinity liable only for community debts, §§ 147, 148. Interests of spouses not severable during coverture, § 147. Judgment for tort of husband not a community debt, t^ 148. All debts contracted by husband carrying on business for bene- fit of community are community debts, \\ 148, 150, 151. All debts contracted by husband during ma.rr\agQ^ prima facie community, >^ 149. All debts incurred by husband as managing agent are commu- nity. §§ 150, 151. Rents, issues and profits of community property subject to husband's disposition, ^ 151. Earnings of spouses belong to community unless living apart, §152. Money saved by wife from household allowances belongs to community, §§ 152, 158. Each spouse may constitute other attorney in fact with full powers, gg 152, 1 58. Community property may be subjected to payment of debts in cases of insanity, g 152. Power of husband to make voluntary assignment for benefit of creditors of community realty, § 153, note. Transfers between spouses in, ^ 158. Spouses may make if not in fraud of creditors, g 158. Authorized by statute, § 158. Burden upon spouse asserting to establish validity of transfer, ^158. 536 INDEX. WASHINGTON — continued. Land purchased with funds saved from household allowances liable for community debts, \ 158. Presumptions relating to money and negotiable paper, \ 163, Parties to aclions in, %% 181-190. Wife not proper party in actions for tort committed by hus- band, §§ 181, 195. Rule as to parties same as in other states except as to actions involving realty, § 185. Theory that vsdfe is neither necessar}- nor proper party to actions involving community rights and liabilities, g 187. Theory that wife's interest in community is represented by husband, § 1S7. Theory that wife is a proper party, § 189. Theory that wife is a necessary party, § 190. Divorce aiid disposition of community property, |§ 196, 207, 212. Discretion and power of court as to disposition of property on divorce, g 196. Origin of statutes relating to disposition of community prop- erty on divorce, § 196. Either spouse may invoke eqiiitable processes for protection pending divorce proceedings, g 207. Power of court to make distribution on divorce, §212. Descent and distribution in, §§ 218, 243-250. Dower and courtesy superseded by community statutes, §218. Community dissolved by death of either spouse, § 243. Svirvivor cannot wind up estate as in case of survivor of com- mercial partnerships, ^243. When administration necessar}', §§ 243, 249, 250. Rules of descent, §§243, 245. Rule as to descent where no survivor, § 243. Survivor and heirs hold community estate as tenants in com- mon, g§ 243, 244. Interests of survivor and heirs on dissolution, § 244. Spouses own no specific interest in community until dissolu- tion, § 244. Interests of spouses upon dissolution subject to debts, § 244, Rights and interests of survivor same whether husband or wife, g 244. Who may inherit, § 246. Construction of words "heirs" and "descendants," g 246. When survivor may inherit, § 246. Interests descend subject to debts and expenses of administra- tion, § 247. Death of one member does not postpone payment of debts until death of survivor, § 247. Theory that interests are held in abeyance or suspended upon dissolution, § 247. INDEX. 537 WASHINGTON — continued. Interests vest subject to payment of debts on dissolution, ^ 247. When community liable for separate debts on dissolution^ §247- Rights of community creditors on dissolution, § 247. When separate property liable for community debts on disso- lution, § 248. Separate estate liable for necessaries on dissolution, § 248. Wife's separate property exempt from seizure for community- debts except for necessaries on dissolution, § 248. Separate and community estates administered in one proceed- ing, § 249- Confusion incident to present system of administration, ^ 249. When probate necessary to pass title, § 249. Theory that heir cannot maintain actions until after probate^ 1% 249, 250. Cases where probate is unnecessary, i; 250. Testamentary powers of spouses over community, § 250. WIFE — Status under common law, §1. Status under civil law, ^)^ i, 6. Separate rights of under civil law, j5 i. Rights of under Roman law, § i, note. Rights of under dotal system, ^ 2. Liability of for husband's debts in Holland, \ 3. Restrictions on powers of in Holland, § 3. Renunciation of community by in Holland, §3. In France, \ 4. Gifts by husband in fraud of void, J; 4. Restrictions on powers of under code Napoleon, g 4. How bound for debts under code Napoleon, § 4. Interest of in community property, an expectancy, §§4, 5, 32, 76, 77- Rights of under American community, § 6. Rights of non-resident in community, § 12. Earnings of are community property, § 19, note, § 152. Rents and profits of separate property of belong to community, § 21^ Wife's interest at Spanish law an expectancy, § 32. Interest of on dissolution of community under Spanish law, \ 32. Interest of in community eventual, in Louisiana, § 32. Effect of repeal of law on rights of, §§ 33, 76. Nature of interest of in Texas and Louisiana, §§ 34, 78. Interest of in community not an estate in California, g 34. Interest of in community in Washington is vested, §§ 37, 78. Effect of purchase in name of, \ 40. Contributions to community in labor, etc., by, §42. Result where separate money of confused with community funds,. §44- ^38 INDEX. AVIFE — continued. Proof necessar}- to trace separate moneys of, ^ 45. Domicile of is that of hiisband, ^^47. Domicile of in foreign state does not affect community rights, § 47. Emancipation of, § 49. Property rights of in Louisiana and Texas, ^ 49. Has rights of a./emtne sole, ^ 49. Civil rights of exercised by husband at Spauish law, § 50. Powers of over separate property, ii 50. Separate property under dotal system, >; 52. Rule where moneys received by husband for, t; 57. Identity of maintained under community S5-stem, ^ 58. Gift by to husband valid under codes, § 59. When property transferred to by husband remains community, §60. Gifts in fraud of void in I^ouisiana, § 61. Must consent in writing to gifts b}' husband in California, § 61. When may be vested with husband's community interest, g 62. When a trustee for community, § 62. Effect of purchase by husband with separate funds of and title taken in name of husband, g 64. Effect when title taken in name of, § 64. Power of to acquire separate property strictly construed, § 65. When may purchase for separate benefit in Louisiana, | 65. Presumption arising from conveyance to, reciting money considera- tion, § 67. Parol evidence to overthrow, ^ 67. Title taken in name of raises no presumption in her favor, §§ 67, 170. What must be shown by to rebut community presumption, § 67. Object of registration of separate property of, ^ 69. Rights of under constitutions of California and Texas. ^ 70. Effect of failure to register separate property, §g 70, 71. Effect of recitals in recorded conveyance to, § 72. As public merchant or sole trader, g^ 73, 126. Scope and reason for provisions, i> 73. Is fefunie sole under sole traders' acts, g 73. As keeper of boarding-house not a public merchant, § 73. In Washington Territory under laws of 1871 might acquire greater interest in community than one-half, ^ 74. Under ancient laws took only one-third interest in community, §74- Conduct of may forfeit community interest, ^ 75, Rights and powers under statutes differ, ^ 76 Rights and powers of under Spanish law, ^ 76. Powers of passive, §§76, 79, 81. Has no proprietary interest in community until dissolution in Louisiana, ^, 76. INDEX. 539 WIFE — contiuued. Ownership of in community revocable and iictitious during cover- ture in Louisiana, j; 76. Interest of in California a mere expectancy, jj 77. Estate of in community on dissolution in Louisiana and Texas, i^ 77 Interest of in California possesses none of attributes of an estate, ^77. Theory upon which rule in California based, i^ 77. Must join in conveyance of community realty in Washington, ^§ 78, 95- Dominion of over community realt}- in Washington, § 78. Title of to community realty in Washington, ^ 78. Powers of passive under Spanish law, i^ 79. Reason for rule, 5; 79 Effect of husband's insanity, imprisonment or abandonment ou powers of, ^ 79. Ma}- dispose of community property to procure necessaries, § 80. Prohibited under code Napoleon from administering or alienating community property, § 80. Assent of unnnecssary in disposition of community property, § 80. Cannot transfer community property in payment of community debts, Yi So, 116, note. Sale by with husband's consent binding on comnumity as joint act, i<8o. Remedies against husband's collusive sales to defraud, ^81. Rights of passive in Texas, ? 81. Maintenance of not to be left to caprice of husband, J^ 83. Contracts made by husband in name of are community, where she has no separate property, ^ 82 Voluntary alienation by husband in fraud of, 4$ 84. Remedies of for maladministration of husband, J585. Where interest in community is vested, J; 85. Interest in community not subject to equitable protection in Cali- fornia, § 86. May vacate fraudulent transfer of husVjand on dissolution of mar- riage by divorce, i^ 86. Has no interest in community entitling her to sue, ^ 86. Powers of to redress threatened injuries by husband, g 87. Reasons why should not lie remediless during coverture for threat- ened injuries, ^ 87. When administration of community affairs authorized by, ^ 88. Effect of abandonment of, ^ 88. Rule in Texas, i; 89. Husband cannot lease community lands in Washington unless joined by, i^ 97. Real property standing in name oi prima facie community, § loi. Must register separate property in Louisiana to prevent aliena- tion by husband, ;^ loi. 640 INDEX. WIVE — continued Recitals in deed to will not overcome presumption that property is community, >^ 105. Purchasers from husband bound to ascertain if title to property in name of is separate in California, § 104. May enjoin sale of separate property under execution against hus- band, § 105. May be estopped by conduct to show that she was married, ^ 106. May rebut presumption that property is community by parol as against all persons except purchasers for value without notice, S 109. Bfifect of recitals in deed to in Texas and Louisiana, § 107. Cannot create debts binding upon community except for neces- saries, §§ 116, 1 1 8. Has no control over community affairs, § 116. Not necessarj' for to join in contracts made by husband, § 116. Has no power to validate debts by acknowledgement, § 116, note. Has no power to alienate community property for any purpose, >? 116, note. Is silent member of marital partnership, § 116 Power of to bind community is special and limited, § 117. Husband may dissipate assets of community if not in fraud of, §117- Community not bound when consideration of contract inures ta separate benefit of, g 119 Moneys received by with consent of husband constitute community debts, § 119, note. Fees of attorneys employed by to prosecute suits for divorce not a community debt, g 119, note. Not responsible for services performed upon property not repre- sented to be paraphernal, i^ 119, note. Is necessary party to a suit upon note for unpaid purchase money on lands conveyed to her by direction of husband, § 123. Liable for half community debts in Louisiana upon dissolution of marriage unless she renounce community, g 123, 124. Separate propert}' of protected by statute from debts of husband and of community, § 123. Separate property of not liable for community debts, § 124. When identity of separate property of lost by commingling with community property liable for community debts, § 124. Has no power to bind herself for community debts in Louisiana, § 124, and notes. Separate earnings of exempt from seizure for community debts in Washington and California when living apart from husband, ?§I24, 152. Community property liable for debts of incurred as public mer- chant in Texas and Louisiana, § 126. Presumption is that capital employed by as sole trader belongs to- community, ^ 126. INDEX. 541 WIFE — continued. Not liable for debts incurred as sole trader unless separated from husband, g 126. Where separate property of is commingled with its profits, all treated as community, \ 127, note. Burden is upon to show that separate property commingled with community is not liable for community debts, § 127. Rights of when separate property seized by creditors for commu- nity debts, § 128 Not necessary party to enforce lien upon partnership property, § 128, note. Becomes tenant in common in California where property purchased partly with community and partly with separate funds, § 128. May establish resulting trust in community property against creditors, ggiio, 130. When resulting trust arises in favor of, \ 130. Not permitted to establish resulting trust in community proj)- erty in Louisiana, \ 131. Community liable for necessaries furnished to, §§ 136-140, 151. Community liable even where husband has been abandoned by in Texas, \ 139. Community liable though credit was given to, ?; 139, note. Separate property of not liable for necessaries furnished to husband, t^ 140. Separate property of liable for necessaries only where there is no community property, § 140. Property purchased in husband's name with funds of belongs to community subject to her right to reimbursement, g 145. When husband uses funds of to pay debts of community she be- comes creditor of community to that extent, \ 145. Result where husband commingles separate property of with com- munity property in Louisiana and Texas, 'i 145. Earnings of in Washington belong to community, g 152. Money saved by from household allowance belongs to community, Proof necessary for to establish separate claim in Louisiana, § 166. Conveyance taken in name of not presumptive evidence of sepa- rate interests, J^ 170. When presumption may be rebutted as to conveyance taken in name of, >^ 170 Proof necessary to establish separate estate in by donations from husband, § 171. Effect of conveyance to, § 171. Effect of presumptions when deed taken in name of and how re- butted, ^ 172. Deed to wife for property purchased by husband imports intention to make same her separate estate, {5 172. • Intention to constitute property separate is presumed from deed of husband to of community property, Ji 172. As a party to actions involving community rights and liabilities^ §§176-193- Legally not a party to suits involving community rights, § 176. Neither a necessary nor proper party to actions involving com- munity rights, g 176. 642 INDEX, VJlVE — contifiued. Interest of in community sufficient when related to trial judge to constitute disqualification to try cause, § 176. Joinder of in ejectment to recover conmiiuiity lands is ground for motion to dismiss as to her, JJ 176. Husband proper party to recover earnings of, J; 1 76. When an improper part}' to actions involving community rights, >; 176. An improper party in action on note for community debt, § 177. An improper party in action on note presumptively com- munity although payable in her name, ^ 177. Judgments cannot be obtained for community debts against both community and, ^177. To recover against it must be alleged and proved that debt is separate, ^ 177. Cannot maintain action to recover land in her name, § 177. In action for goods furnished to complaint must show sale to husband, who is proper defendant, ^ 177. Not a proper party on note executed jointly by spouses for pur- chase money, ^ 179 Proper party in foreclosure of mortgage executed jointly by spouses, § 179. What allegations necessar}' to constitute proper party on joint note of spouses, § 179. Not a proper party to actions for deceit and injury to commu- nity property, § 181. Instances where authorized to sue alone, § 182. Authorized to maintain actions regarding community in cases of abandonment, § 182. When may maintain action against husband, § 183. Rule that may attach community property to secure separate debt due her by husband, §183. Interest of in community lands equal to husband's in Washing- ton, § 185. As party to actions relating to communit}- in Washington, i;ii 189,190. Theory that husband and are joint debtors in community obli- gations, i^l 191-193. A necessary party in mechanics' liens proceedings, § 192. When rights of may be litigated, § 193. Is proper part}- to foreclose assessment liens for municipal im- provements, ^ 193. Husband not required to support when living apart from him with- out consent, § 197. May vacate simulated mortgages made by husband pending divorce in Louisiana, t^ 203. Entitled to satisfaction out of mass of community property on divorce, J^ 20s. Rights of pending suit for divorce in California, § 206. Is powerless to restrain fraudulent disposition of community prop- erty pending divorce in California, ^ 2c6. Acquires no interest in or right to possession of community prop- erty by virtue of suit for divorce in California, g 206. May procure bill qtiia timet in California, § 206. Must show acceptance of community in Louisiana to entitle her to division of assets on divorce, § 20S. Failing to accept community within legal delays presumed to have renounced it, >i 20S. Ma}' sue former husband to set aside fraudulent conveyance, § 210. INDEX. 543 WIFE — continued. May enjoin husband from fraudulently disposing of comuiunity propert)- subsequent to divorce in California, § 213. Deemed a creditor pending divorce sviit in Louisiana under statute prohibiting fraudulent convej^ances, § 214. May exonerate herself from liability for comnmnity debts on dis- solution by renunciation, ^ 220. When creditors may attack renunciation of, t^ 220. Interest of on dissolution is residuary, ^ 222. Can claim nothing after dissolution until liquidation of community debts, ^ 224 Creditor cannot compel liquidation of community to ascertain in^ debtedness of thereto, in order to subject her propert}' to claim- § 225. Powers and liabilities of surviving defined, JJ 226. How renunciation b}- accomplished, i^ 227. Circumstances and conduct preventing renunciation by, ^ 227. When renunciation by void, >5 228, note. As survivor not personally lial^le for community debts, § 230 Powers of to administer community after dissolution cease with her widowhood, >5 233. When will be presumed to have accepted community, g 227. Liability of for half the debts under Mexican law became fixed only when community exhausted, § 237. Interest of on her demise not an estate subject to probate in Cali- fornia, g 237. Powers and interests of after dissolution, g 238 Interest of heirs in community on death of, >5 238. As survivor may maintain ejectment against trespasser, § 239. In what cases must elect whether to renounce or take under will of husband, ij 240. Effect of failure to renounce, \ 240. Separate propert}' of exempt from seizure for community debts ex- cept for necessaries on dissolution, t^ 248. WILLS — Restraint on husband's power of disposition b}' under code Napo- leon, gi^ 4, 79. In California, g§35, 82. In Washington, § 78. Testamentary powers of spouses limited to individual interests in community, § 234. Intent of husband to devise wife's interest in community must be clear and explicit, § 234. The devisee under a of coiumunity property takes interest of de- visor charged with debts, § 234. In absence of a decedent's interest passes to his heirs, \ 240. Where husband devises all of community property to wife, she takes one-half by will, remainder by law, § 240. In what cases wife must elect whether to renounce or take under, §240. Effect of failure to renounce, \ 240. Presumptions regarding testator's intent, § 240. What circumstance may constitute an election to take under, § 240. Wife not estopped to elect by causing probate of, § 241. Posthumous child entitled to inherit where no express provision is. made by testator, § 241. A BBRE VI ATIONS. ■(An explanation of the following abbreviations used in this work are deemed useful.) An. Louisiana Annual Reports. Am. Dec American Decisions. Burge Com Burge on Colonial and Foreign Laws, four volumes, published in London in 1838. Peb. Mej Febrero Mejicanas. Febr. Nov. Febrero Novisima. Fed. Rep Federal Reporter. La Louisiana Reports. Mart Martin's Louisiana Reports. Mart. N. S Martin's New Series Louisiana Reports. Myr Prob Myrick's Probate Reports (Cal.) Nov. Rec Novisima Recopilacion de las Leges de Espana. Pac Pacific Reporter. Rec Recopilacion. Rob Robinson's Louisiana Reports. So. Rep Southern Reporter. S. W Southwestern Reporter, White's Recop. --White's Recopilacion, published at Philadelphia in 1839.. b I LAW LIBRARY UNIVEIiSITY OF CALIFORNIS LOS ANGELES ■ UC SOUTHERN RtCIDNAL LIHHAHY I ACILITY Aa""oOO 594 079 6 L.'^StJ ,±;,2WJ UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. JUN 9 1977 JUN 24 ]^U Form L9-Series 4939 m piffliiiPiii mm mmm