the executor claims does not belong to the estate, he should himself take steps to test the right, if serious question exists; and, if he is improperly charged, his remedy is to appeal from the decree settling his final account. I know of no other way in which it can be reached. His counsel says the probate court exceeded its jurisdiction in determining that this money belonged to the estate. I do not think so; but, if it did, the decree affected by the error was the decree settling the final account of the executor, and determining that he had in his hands $1,600 belonging to the estate after full administration. Since we cannot change or modify that decree on this appeal, no relief in that direction can be afforded. If we could here determine that the money belonged to the trustees, it would only establish another claim against the executor. It would not vacate the finding that he also has $1,600 belonging to the estate which must be distributed to the heirs or legatees. The executor had an opportunity to test the right of the estate to the money in question. claimed that it was assets of the estate, and the trustees that it was not. It was his duty, if he deemed his claim just, to get it for the estate; and he had no right to compromise the claim of the estate by consenting that the trustees should have it, provided they would pay the debts and the expenses of administration out of it. I do not think such is really the effect or meaning of the agreement of compromise. But such is the claim of the trustees. Having been permitted to inventory it as assets of the estate, and administer it as such, the executor could not return the surplus to the trustees. To do so would be to assume the responsibility of maintaining the title of the trustees against the estate. The executor was not at liberty to assume such a position.

He

But appellant contends that the claim of the wife to a share of the funds, as community property, is a claim adverse to the estate, and that the probate court has no power to distribute her share of the community property, since, as he claims, she does not take by succession, but as survivor of the community. Counsel argue correctly that the probate court, in the matter of the administration of estates, has jurisdiction of the estates of dead men, and can distribute only to heirs, devisees, or legatees, or to those claiming through them. And the decree of distribution is conclusive only as to the succession or testamentary rights. Chever v. Ching Hong Poy, 82 Cal. 68, 22 Pac. 1081. The probate court, therefore, has no jurisdiction or power to deal with the wife's portion of the community property at all, unless she takes, upon the death of the husband, as heir. It could not, then, determine what is community property or what is separate property, and could not authorize a valid sale of community property to pay debts. The fact that the proposition is so novel and so startling raises a very strong

presumption against it. To hold with the appellant would upset titles all over the state. A proposition more destructive of property rights could not be imagined. Fortunately, it has not sufficient plausibility to excite alarm. The estate of the wife in the community property is a creature of the statute, and is, of course, just what the statute has made it. It has always been pretty much what it now is, though formerly, upon the dissolution of the community by the death of the wife, one-half of the property descended to her heirs. Even then, however, it was held that the title was in the husband, and the wife's interest in it was a mere expectancy. In Packard v. Arellanes, 17 Cal. 525, it was said: "It is true the wife is a member of the community, and entitled to an equal share of the acquests and gains; but, so long as the community exists, her interest is a mere expectancy, and possesses none of the attributes of an estate either at law or in equity." The legal title to the community property is in the husband. He has the absolute dominion and control of it, and the wife has no right or title of any kind in any specific property, but a possible interest in whatever remains upon a dissolution of the community otherwise than by her own death. This cannot be classified as any species of estate known to the law. Civ. Code, $ 700. Part 4 of the Civil Code treats of the acquisition of property, and section 1000 defines five modes in which property is acquired: (1) Occupancy; (2) accession; (3) transfer; (4) will; or (5) succession. Each of these modes is treated under a title specifically devoted to the subject, laying down rules for the acquisition of property in the particular mode treated of. The last two relate to the acquisition of property from deceased owners. Title 6 treats of the acquisition of such property through testamentary disposition. The next is title 7, which treats of succession. The first section under this title is section 1383: "Succession is the coming in of another to take the property of oue who dies without disposing of it by will."

The learned amici curiæ, who, by permission, presented an argument upon this subject, argues, from this section, that only property which the deceased owner might have disposed of by will can be inherited. But this is an unauthorized addition to the statute. Property which belonged to a decedent, which he could not dispose of by will, is property not disposed of by will, and within the words of the statute. Suppose the previous provisions in regard to testamentary disposition of property had limited the right to one-half of a testator's estate, and this section had remained as it now is; would not the moiety, which he could not dispose of by will, pass by succession? Infants and insane people die owning property, and they cannot exercise the testamentary power. The section follows the provisions in regard to wills, and means that the only

other mode of coming to the estate of a deceased owner is by succession, and must be construed as applying to all cases which the language is broad enough to cover. Section 1400 provides that the preceding sections as to the inheritance of husband and wife from each other only apply to separate property. This clearly implies other succeeding sections which apply to property of husband and wife which is not their separate property. Otherwise, instead of "preceding sections," the language would have been "of this title." The next section gives the entire community property to the husband on the death of the wife, "without administration." What was the necessity of this provision, "without administration," if it does not go by succession? The following section (1402) disposes of the community property upon the death of the husband. As to the disposition of one-half of it, no one disputes that it is succession; but the language is the same in regard to the moiety given to the wife. It "goes" to her just as it "goes" to the descendants. This section is referred to in section 1274, Civ. Code, and it seems to be there expressly determined that both husband and wife take some interest in the community property by succession. All property, "to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will, except as otherwise provided in sections 1401 and 1402." This is an express legislative declaration that the disposition of the community property made in sections 1401 and 1402 is succession. Another consideration makes this equally clear so far as the succession of the wife is concerned. In section 1402 it is provided that, upon the death of the husband, her share is equally subject to his debts, the family allowance, and the charges and expenses of administration. In the Code of Civil Procedure ample provision is made for the payment of all these charges from the estate of the deceased. There is no provision for calling upon the widow to contribute. Estates composed of what was community property in whole or in part are certainly common. If it had not been intended that the entire community property should be administered as estate of the husband, so important a matter could not be overlooked. Yet the probate laws only authorize the administrator to take charge of the property of the deceased (sections 1443, 1581), and the final settlement of the accounts of the administrator is conclusive only upon those interested in the estate, and the decree of distribution only upon heirs, legatees, or devisees. The Codes are in pari materia and must be construed as This plain intent that the title of the wife to one-half of the community property shall be administered as part of the estate of the husband, added to the continuous and uniform practice of near half a century, must place this matter beyond all doubt. "The suggestion that the husband takes from

one.

the wife her share of the community property upon her death by succession may seem inconsistent with the proposition that, during her life, she had no estate of any kind in the property. That she had no estate in the community property, vested or contingent, was held by this court, when the law was that, upon her death, one-half of the community property was inherited by her next of kin. The change was made by amendments which are codified in sections 1401 and 1402, Civ. Code, and which merely change the succession. It was competent for the legisla ture to provide the mode in which the wife's expectancy should pass to the husband. It might have done this by creating a right by survivorship as an incident to the estate, but it has done this by providing for a succession. Since the wife could not incumber it or contract with reference to it, there can be no essential difference.

A. W. Burdick and A. M. Sutton as trustees, and A. W. Burdick in his own right, have taken appeals from the entire decree. Obviously, the appeal taken by the trustees must be dismissed. They are not named in the will and claim no rights under it, and have presented no claim against the estate. They are not, and could not have been, aggrieved persons. The order refusing to postpone the decree of final distribution was not appealable. The application was to "suspend the order of final distribution," because it was claimed that the money belonged to a trust fund. A. W. Burdick, as legatee under the will of Steven Powell Burdick, had no interest in such a contention, and, as legatee, was not injured. As trustee he cannot be heard here. The court found the money in the hands of the executor to be community property, and distributed it accordingly. There is no evidence in the record which tends to show that the finding of the court was erroneous, and the bill does not show that it contains all the evidence which was before the probate court

The appeal of the trustees is dismissed, and as to the other appellants the decree is affirmed.

We concur: MCFARLAND, J.; VAN FLEET, J.; HENSHAW, J.

HARRISON, J. (concurring). The wife's interest in the community property upon the death of the husband has many incidents similar to those of an heir, but I do not think that, under the language and spirit of the laws of this state, she can be said to be his heir to her share of that property, or that her interest therein comes to her by virtue of a "succession" to the property of her husband. The property that is acquired by the labor of the wife during the marriage, equally with that acquired by the labor of the husband, becomes community property; and, although section 172, Civ. Code, gives to the husband the management and control of the

community property,-that acquired by her labor as well as that acquired by his,-yet by the terms of the same section he cannot give away, or convey without valuable consideration, any portion of this property, unless she gives her written consent thereto. While a voluntary or fraudulent conveyance is binding upon his heirs, and, in the absence of creditors, cannot be questioned by the administrator of his estate, yet he cannot by such act deprive the wife of her share of the community property. Only one-half of the community property is subject to the testamentary disposition of the husband, and, if the bonds of their marriage are dissolved by a judicial decree which makes no mention of property, the wife becomes the absolute owner of one-half thereof, as co-tenant with the husband. De Godey v. Godey, 39 Cal. 157. It was said in this case: "The theory upon which the right of the wife is founded is that the common property was acquired by the joint efforts of the husband and wife, and should be divided between them if the marriage tie is dissolved either by the death of the husband or by the decree of the court. Her mere right in the community property is as well defined and ascertained in contemplation of law, even during the marriage, as is that of the husband. It is true that the law confers upon the latter the authority to manage and control it during the existence of the marriage, and the power to sell it for the benefit of the community, but not, as we have seen, so as to defraud the community of it. In the case at bar, then, the right of the respondent to a share of the property in question, if it be proven to be community property, is clear. It accrued to her as having been acquired in part by her own efforts before the decree of divorce was rendered. That decree, as rendered, did not deprive her of it." Although this interest of the wife in the community property may not fall within the common-law definition of an "estate," it is not to be classed as a "mere possibility," like the expectancy of an heir. It is true that, in Van Maren v. Johnson, 15 Cal. 311, it was, by way of illustration, termed a "mere expectancy," and this illustration was again used in Packard v. Arellanes, 17 Cal. 525; but, as was said in De Godey v. Godey, supra: "While, perhaps, no other technical designation would so nearly define its character, it is at the same time an interest so vested in her as that the husband cannot deprive her of it by his will, nor voluntarily alienate it for the mere purpose of divesting her of her claims to it." That her interest in the community property is more than a mere possibility is also shown by section 167, Civ. Code, by which the community property is exempted from liability from the contracts of the wife made after marriage; but it is not exempt, by the Code, from liability for her contracts made before marriage.

v.44P.no.7-47

It is a misapplication of terms to say that the property which the wife has "acquired," during the marriage, by her skill or labor, and of which her husband had not in his lifetime any power of voluntary conveyance, except with her consent, or of testamentary disposition, is inherited from him; and to refer her rights in the community property to "succession," under the language of section 1383, Civ. Code, begs the entire question. "Succession," by the terms of that section, can be applied only to a case where the property succeeded to belonged to the decedent, whereas the entire provisions of the Civil Code are at variance with treating the husband as the owner of the community property. If he were the owner, he would have the absolute dominion over it, with the right to use it or dispose of it according to his pleasure (Civ. Code, § 679); but, as above seen, these attributes of ownership are denied. him. Section 682, Civ. Code, specities the community interest of husband and wife as one species of property which is owned by several persons. The necessary implication therefrom is that the husband and the wife are the "several persons" in whom is vested this ownership of the community property. This ownership is not absolute in either, but in each of them is qualified by reason of its being shared with the other. Civ. Code, § 680. This interest of the surviving wife in the community property, instead of being adverse to the administrator of the estate of her husband, is subordinate thereto for all purposes of administration, and is subject to the supervision and control of the court in which the administration is pending. By section 1452, Code Civ. Proc., the executor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate during the administration; and section 1402, Civ. Code, declares: "In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration." Theller v. Such, 57 Cal. 447, and kindred cases have, therefore, no application, as the property involved in those cases was held not to be subject to the administration or to the debts of the decedent. The husband has the sole management and control of the community property in his lifetime, and alone can render that property chargeable with debts. Upon his death the entire community property, as well as his separate property, is subject to the control of the court for the purposes of administration of his estate, and is taken into the possession and management of his administrator for these purposes, and at the close of the administration the wife receives, at the hand of the court, in the same manner and at the same time as does the heir, her share of the community property,-the one

half of the surplus after paying the debts and expenses of administration. She receives it, however, not as the heir of her husband, but in her own right, as her half of the property which was acquired by herself and her husband during the marriage, but freed from all restrictions in its use and enjoyment, and with the same title as if the marriage had been dissolved by a decree of divorce.

As the court which had control of the administration, and of the community property for that purpose, is also authorized to aetermine what charges, debts, and expenses are to be paid out of this property, and the amount thereof, it must follow that the judgment of that court, determining the amount of the property which she is entitled to receive at the close of the administration, is binding upon her, and may also be invoked by her as a determination of her right to the same. Whether this be called a decree of distribution, or a judgment or order fixing the amount or extent of her interest in the estate and her right to receive the same from the administrator, is immaterial. It is the final determination of the court upon a subject within its jurisdiction, and is as binding upon her as if she had been specifically named in section 1666, Code Civ. Proc. If a court has jurisdiction to take the management and control of property, and to determine the amount of charges thereon, and direct their payment out of the property, and return the surplus to the parties entitled thereto, its judgment in determining the amount of such surplus, and designating the persons to whom it is to be given, is necessarily conclusive upon them; and they take their portions of the sulplus under and by virtue of the judgment, and not adversely thereto.

Upon the other questions discussed by Mr. Justice TEMPLE in his opinion I concur with him, and I also concur in the judgment.

I concur: GAROUTTE, J.

(12 Cal. 437)

GOODNOW v. PARKER et al. (No. 18,340.) (Supreme Court of California. April 16, 1896.) EQUITY-POSSESSION OF REAL PROPERTY-RECOVERY-APPEAL-EXECUTION OF VERBAL AGREEMENT LIMITATIONS.

1. Alleged error in overruling a demurrer to a complaint cannot be urged on an appeal from an order denying a new trial.

2. A motion to strike out evidence because it appeared therefrom that "the action was barred by the statute of limitations as set out in the defendant's answer" did not go to the sufficiency of the complaint, but to the effect of the evidence.

3. An action to compel a conveyance in accordance with an agreement to partition lands is not barred after two years by Code Civ. Proc. § 339, because not in writing, where the agreement was in fact executed by a proper division of the land according to the intention of the parties.

4. T. and P. were tenants in common of certain land, described as lot 2 of a grant which by the calls contained 667 acres, but from which, after survey by the United States, 60 acres were excluded. They agreed to partition the lands by an east and west line; and, when the surveyor pointed out to them the mistake in the grant, a line was run, marked partly by a fence and partly by a furrow, dividing the land into equal parts of 303% acres each. Deeds of partition had already been executed, however, deeding to T. the south half, and P. the north half, of original lot 2. Shortly afterwards, T. deeded to plaintiff the south half, following the descrip tion of the partition deed; but the true dividing line was pointed out by T., and plaintiff bought and paid for 303% acres south of that line. The 60 acres which had been excluded by the govern ment survey were taken largely from the south half of the original grant. Plaintiff cultivated his land to the true division line for two years. P. then entered on the strip between the partition line and the line intersecting the original grant, and, within four years thereafter, plaintiff sued to compel a conveyance of the strip by P. Held, that the action was not simply to correct a mistake in the partition deeds, but, in equity, to recover possession of land, the legal title to which was in P., and therefore within Code Civ. Proc. § 318, barring an action to recover real property or the possession thereof, unless, within five years before the commencement of the action, plaintiff or those under whom he claims had been seized or in possession of the property in question.

Commissioners' decision. Department 1. Appeal from superior court, Yolo county; W. H. Grant, Judge.

Action by J. P. Goodnow against O. E. Parker and others to compel a conveyance and to quiet title. From a judgment in favor of plaintiff, defendant Parker appeals. Affirmed.

R. Clark, for appellant. J. C. Ball and J. W. Armstrong, for respondent.

HAYNES, C. Action to compel a conveyance and to quiet title. The land in controversy is within "block or lot No. 2 of Wm. Gordon's subdivision of the Rancho Canada De Capay, as laid down on the map recorded December 12, 1871, Records of Yolo County, Book M of Deeds, p. 2." At the time this subdivision was made, the grant had not been finally surveyed by the United States; but, by such final survey, a portion of the lands included in said block 2, as subdivided and platted by Gordon, was excluded from the grant. The precise date of the segregation of the grant does not appear, but from the testimony of Mr. Nurse it was as early as 1872. On June 4, 1872, Gordon conveyed said block 2 to William H. Troop by the above description, including the reference to the recorded plat, containing 667 acres. On October 11, 1872, Troop conveyed an undivided one-half of said block to R. H. Newton, by the same description, and on September 5, 1876, Newton conveyed his said undivided one-half to the defendant Parker. On December 14, 1876, Troop and Parker, in pursuance of a verbal agreement to partition the lands owned by them as tenants in common by an east and west line which should give to each

an equal number of acres, executed to each other deeds by which Parker acquired the north half and Troop the south half; but these deeds each followed the description above given, and referred to the recorded plat of Gordon's subdivision, each deed stating the number of acres to be 333%, while said block contained but 607 acres after excluding the lands outside of the grant as finally surveyed and patented, the lands thus excluded being public lands of the United States, in which neither party had any interest, and to which they had no title, though they were included in the conveyance from Gordon to Troop. Troop and Parker employed Mr. Nurse, a surveyor, to run the line separating their respective portions; and this was so done as to give each an equal number of acres of the land included in that part of block 2 which was within the grant as finally confirmed and surveyed, viz. 3031⁄2 acres each. On February 13, 1877, Troop conveyed the south half of said land to the plaintiff, Goodnow, but this deed followed the description contained in all the preceding deeds, and purported to convey the south half of block 2 according to the map of Gordon's subdivision and therefore the public lands above mentioned were included in the description. The court found that the description in these several conveyances, including the partition deeds, so far as they included lands outside of the grant, was the result of mutual mistake, and that, as to the partition deeds, it was the intention of both parties to divide only so much of block 2 as was within the grant as finally surveyed, the division to be so made as to give each an equal number of acres; that if the lands, as described in the deeds, and as delineated on Gordon's recorded map, were divided by an east and west line 30 as to leave an equal number of acres on each side of it, nearly or quite all of the public lands included in Gordon's survey would fall to the south half, so that Parker would have 333% acres, and Troop would have but 2731⁄2 acres, after deducting the public lands, while an equal division of the lot, after excluding the public lands, would give each 3031⁄2 acres. The court further found that the line made by Nurse equally divided the land within the grant. Troop and Parker built a fence upon part of the line (the remainder being marked by a furrow), and entered into possession of their respective portions according to said division. In addition to a general denial, which put in issue all the allegations of the complaint, the defendant pleaded in bar a judgment rendered in 1880, in an action wherein said Goodnow was plaintiff and said Parker was defendant, and alleged that all the matters at issue in this action were fully adjudged and determined adversely to the plantiff. He also pleaded several statutes of limitation, specifying section 318, subdivision 4 of section 338, subdivision 1 of section 339, and section 343, of the Code of Civil Procedure; and, as another defense,

alleged that the partition agreement was not in writing, and was therefore invalid, under subdivision 5 of section 1624, Civ. Code. These issues were also found against the defendant. The appeal from the judgment was taken too late, and is not pressed. Upon defendant's motion for a new trial, several rulings upon evidence are specified as being erroneous, and the specifications of particulars in which the evidence is insufficient to justify the findings include nearly, if not quite, all the facts found.

The first point made by appellant is that the complaint does not state a cause of action; · and one of his specifications of error is that the court erred in overruling his demurrer to the complaint. But that question is not reviewable upon an appeal from an order denying a motion for a new trial. Ashley v. Olmstead, 54 Cal. 616; Hayne, New Trials, p. 24, § 1, and cases there cited. It is said, however, that "objection was made at the trial to the introduction of any evidence on the pleading, for that it appeared from the evidence that more than three years had elapsed since the discovery of the mistake before suit was commenced." At the folio to which counsel refers, there appears to have been a motion made by defendant to strike out all of Mr. Troop's testimony, "on the ground that it appeared that the action was barred by the statute of limitations as set out in the defendant's answer, and that the action was res adjudicata." This motion was denied, and defendant excepted. The motion did not go to the sufficiency of the complaint, but to the effect of the evidence, and was properly denied; but, if the objection had gone to the sufficiency of the complaint, the ruling would still have been right.

Defendant's specification of particulars wherein he claims the findings are not jus tified by the evidence are very numerous, and cover almost every fact found. The general facts herein before stated were found by the court, and are amply sustained by the evidence, and only some special points stated in appellant's brief need be noticed.

It is claimed that the evidence does not justify the finding that Troop and Parker intended to divide only the land within the grant. It is clear that they owned no land outside of the grant as surveyed and patented and the presumption is that they intended to divide only that which they owned. The defendant expressly testified that that was their intention. It does not affect the question that, when they agreed to make the partition, they supposed they owned all within the calls of their deeds. The surveyor discovered and informed them of their error, and made the corrected line dividing equally that part of lot 2 within the grant, and that line was marked upon the ground with the knowledge and apparent consent of the defendant by participating in the erection of the fence. The fact that they supposed they owned all within the Gordon survey, when in fact it included about