I dissent. I cannot find authority or logic to support the proposition that the husband has a legal "right" to do something which the statute specifically prohibits him from doing, namely, give away the community property or any part thereof without the consent of the wife. If the statute prohibits it, it is voidable at the instance of the party injured, the wife. The "one-half" theory does not arise out of any right of the husband, but as a result of the fact that nearly all the cases were concerned with situations arising after the husband's death, where the wife'sright was less, prior to the 1923 amendments. At that time she could ordinarily not receive more than one-half of the community property; hence, giving her one-half fully protected her rights. To-day, giving her one-half does not protect the right which the statute expressly confers upon her: to take the whole of the community property, upon death of the husband, unless the husband give one-half away by will. A voidable conveyance by the husband is not a substitute for a will.
The majority opinion relies upon the decision in Dargie v.Patterson, 176 Cal. 714 [169 P. 360, 362], which has been followed in many subsequent cases and which should be accepted as a sound and adequate statement of the controlling principles. But an examination of that decision shows that it does not support the conclusion reached by the foregoing opinion. *Page 350
The rule, and the reasons for the rule, are thus stated inDargie v. Patterson, supra, at p. 720 of 176 Cal.: "The widow, upon showing the existence of the facts bringing a conveyance within the terms of the proviso of section 172, is entitled, so far as her rights are concerned, to treat that conveyance as a nullity. She has the right to avoid the conveyance so far as is necessary for the protection of her interest in the property conveyed. As to her, the case must beregarded as if there had been no conveyance, and the property had, accordingly, remained a portion of the community estate, ofwhich the husband had died seised. Upon his death, she succeeded to one-half of such community estate as heir of the husband." (Italics ours.)
It is at once obvious that the conclusion of the Dargie case to the effect that the wife could recover but one-half of the property, cannot determine the problem presented by the instant case. At the time of that decision the wife's right in community property upon the death of the husband was to receive one-half thereof, save in certain exceptional cases not relevant here. Since 1923, the wife has had the right to receive the whole of the property, in the event that the husband makes no other testamentary disposition thereof. Her interest, therefore, is greater than it was at the time of the Dargie decision, and, in accordance with the principles therein declared, her recovery must be greater. We must, in judging plaintiff's claim, regard this case "as if there had been no conveyance", and the property had "remained a portion of the community estate". (Dargie v.Patterson, supra.) The decedent made no testamentary disposition of his property save to his wife. Consequently she is entitled to succeed to the whole thereof.
Nor can there be any distinction between the two pieces of land on the ground that one was acquired prior to the 1923 amendment. It is settled that the right of inheritance is completely subject to legislative control, and that the statute enlarging the wife's right to succeed to community property upon the husband's death applies to property acquired prior to its enactment. (Estate of Phillips, 203 Cal. 106 [263 P. 1017].) The instant case falls within the rule of the last-mentioned decision. There is no attempted testamentary disposition by the husband to third persons. He has simply made a gift in violation of the statute prohibiting *Page 351 such gifts. The wife has the right, as explained in the Dargie case, to restore the property to the estate. Thereafter she is entitled to the share she would receive under the rules of succession, which, as we have seen, is in this case the entire property. (See McMurray, Community Property, California Jurisprudence 1930 Supplement, sec. 87, p. 126; Modern Woodmenof America v. Gray, 113 Cal.App. 729, 734 [299 P. 754].)Lahaney v. Lahaney, 208 Cal. 323 [281 P. 67], is not in conflict with this view, for in that case the wife was one of the grantees, and claimed under the deed. (See 18 Cal. Law Rev. 400.) But more important is the fact that the husband in said case died September 9, 1922, prior to the 1923 statute discussed herein, and the question could not, therefore, have been raised.
The judgment should be reversed.