The contest in this casé is virtually between a creditor of the community and the heirs of such portion of the community as they may be entitled to, in the right *147of their mother; for, that the claim of Herndon is a debt against the community, will not admit of a question; 'it was contracted during the existence of the matrimony, and though the wife died before the debt became due or payable, that did not make it the less a debt against the conjugal partnership. Nor is there any proof that it was contracted for the special benefit of the husband, or of his separate property, or in fraud of the rights of the wife, in the acquets and gains.
This debt stands as an established claim against the estate of the husband, who survived the mother of appellees, (but has now departed this life,) and is entitled to satisfaction out of the community property not yet sold, provided the claim of appellees, as heirs of their mother, be not superior in right or equity.
To determine the issue, it will be essential that the character and extent of the legal right of the appellees, as heirs of their mother, to the ganancial property, should be clearly understood. On the death of the wife, her estate became entitled to one-half of the community property, but her heirs, the appellees, can claim and finally hold only such portion as may remain after payment of all just demands against this community. Febrero, in treating of the division of inheritances, declares that there must be deducted all legitimate debts, which the husband, or wife with his permission, or both jointly, may have contracted on account of the conjugal partnership, and which must be paid out of the ganancial property, and that the residue only is divisible, and is what, is called the inheritance. (Febrero Novissimo, Vol. 6, p. 124 ; L. 14, Tit. 20, Lib. 3 Fuero Real ; L. 207 del Estilo ; 17 La. R. 238 ; 1 Rob. R. 378 ; 7 Id. 387.)
The debts, then, of the partnership, have priority of claim to satisfaction out of the community estate; and the residue, after the discharge of such debts, is the only portion which is subject to division between the survivor and the heirs of the deceased partner.
*148Nor can it be said that the creditor has lost his right to satisfaction out of the ganancial property, for the reason that no administration has been taken out on the estate of the deceased wife, nor have her heirs been sued on their liabilities fixed, and that they are now protected by the Statute of Limitations. The ganancial estate remained in the hands of the surviving husband. As survivor he had competent authority to discharge the debts of the partnership ; and whether the discharge of debts, or any act which he might lawfully do as survivor, be done in his own name simply, or in his name as survivor, is immaterial. The law, for the preservation of rights, would look to the substance and not the form. In fact no such form has been adopted in practice, nor is it essential that it should. The judgment against the husband in his own name, and revived against his administrator, is just as effectual against the partnership property, as if it had been rendered against the husband as surviving partner. If proceedings were had, at Common Law, to reduce the claim of the creditor to judgment, or if the rules of procedure at Common Law were alone to govern, then suit could be brought alone against the surviving partner. But under the Spanish Law as it existed in 1838, when judgment was first recovered against the surviving husband, there is no doubt that had administration been taken out on the estate of the wife, such administrator might have been joined in the suit, and so might such administrator be now, under the rules of Equity, jointly sued with the surviving partner. (Henderson v. Kissam, 8 Tex. R. ; Story on Partnership, p. 496, 506.) But this joinder is not necessary, nor will the want of such joinder impair the force and efficacy of the judgment against the assets of the partnership. Nor can the fact that the husband, since the death of his wife, has disposed of a large portion of the community property, affect the right of the creditor to satisfaction out of that which has not been sold. What were the motives or inducements to the various sales, made by the survivor, we are not informed. *149They may have been made to discharge contracts made prior to the death of the wife, or to satisfy legitimate demands against the community. If so, it is apprehended they could not be disturbed. At all events, they cannot be assailed by the creditor Herndon. There is no pretence that they were made to defraud creditors, and consequently he would be left without redress, if his demand could not be enforced against the property which has not been alienated.
We are of opinion that the judgment against the surviving husband and his estate is a valid claim against the community property which the appellees now claim for division, and that the judgment below, in favor of appellees, is erroneous.
The defendant, by cross-petition, which he misnames cross bill, claims that a judgment of the County Court, some years since, by which a portion of this land was set apart as a homestead for the widow and children of the deceased, should be disregarded, and the land included in the homestead declared liable in the hands of the administrator for the discharge of of the claim of the creditor. This objection to the judgment of the County Court, by the creditor or administrator, should have been made in the Court which had jurisdiction of the subject matter, and in due season. The judgment cannot, years afterwards, be collaterally attacked and set at naught. Judgment reversed and cause dismissed.
Reversed and dismissed.