In effect, the majority opinion holds that appellant is estopped from prosecuting this action by reason of conduct. The answer to the claim of estoppel is not that the estoppel doesnot exist, but that it cannot exist. There can be no divorce by estoppel. The contract of marriage is one which may not be dissolved other than as prescribed by the statute. An interlocutory order of divorce does not have the effect of dissolving the marriage of the parties until final judgment is entered. Rem. Rev. Stat. (Sup.), § 988.
Where an investment is made by the husband during coverture, if not made with funds obtained prior to his marriage, or if not made with property or money acquired by him after marriage, by gift, devise, or inheritance, such investment is community property. Rem. Rev. Stat., § 6892; In re Brown's Estate,124 Wash. 273, 214 P. 10.
"All property, with certain exceptions not pertinent here, acquired after marriage by either husband or wife, or both, is community property. Our community property system conclusively determines that everything that is produced by either spouse, whether it be by toil or talent, is earned by the community and belongs to the community. It is true that the husband is the manager of the community property, but as such he acts as trustee for the community and cannot use community property of any kind for any purpose except for the good of the community." Small v.Bartyzel, 27 Wash. 2d 176, 180, 177 P.2d 391.
An interlocutory order of divorce abates on death of either party, and becomes a nullity in its entirety. McPherson v.McPherson, 200 Wash. 365, 93 P.2d 428; *Page 855 Dougherty v. Dougherty, 24 Wash. 2d 811, 167 P.2d 467; 21 Wash. L. Rev. 178.
In Dougherty v. Dougherty, supra, the wife sued for divorce and prayed that certain property be awarded to her for the reason that it was her separate property. Her husband, by cross-complaint, prayed for a divorce and alleged that the property was community property. The trial court found the property to be the wife's separate property and awarded it to her. The husband appealed. Pending the appeal, the wife died, and, on motion of the husband, we dismissed the appeal on the ground that the interlocutory order became a nullity in its entirety on the death of the wife, and, as the status of the property involved was fixed in the interlocutory order, the award to the wife would not stand.
We are committed to the rule that, during the term of an interlocutory order of divorce, the marital relationship exists in law, as well as in practical effect, and that an interlocutory order of divorce abates and becomes a nullity for all purposes on the death of one of the parties prior to the entry of the final decree.
The right of appellant wife to the property involved in this action was in no way changed by the entry of the interlocutory order in the divorce proceeding, for the reason that the marital status did not change. See California-Western States Life Ins.Co. v. Jarman, ante p. 98, 185 P.2d 494.
The majority opinion disregards the community property law of this state and overrules many of our opinions, a few of which are cited as follows:
In re Brown's Estate, 124 Wash. 273, 214 P. 10; In reMartin's Estate, 127 Wash. 44, 219 P. 838; In re Coffey'sEstate, 195 Wash. 379, 81 P.2d 283; Lavigne v. Hughes,199 Wash. 285, 91 P.2d 560; McPerson v. McPherson, 200 Wash. 365,93 P.2d 428; In re Towey's Estate, 22 Wash. 2d 212,155 P.2d 273; Small v. Bartyzel, 27 Wash. 2d 176,177 P.2d 391; Crockett v. Crockett, 27 Wash. 2d 877, *Page 856 181 P.2d 180; and California-Western States Life Ins.Co. v. Jarman, ante p. 98, 185 P.2d 494.
The judgment should be reversed.