(concurring).
I agree with the majority holding on the jurisdictional question. However, I contend that the Probate Court was without jurisdiction for an additional reason. The majority does not reach this additional ground. The case involves a title question. The State filed in the District Court a plea to the jurisdiction of the Probate Court on the ground that certain property belonging to the estate was the separate property of M. G. Perry, deceased, rather than the community estate. The plea to the jurisdiction points out that the assertion by the executors that such property is community property and subject to the claim of Mrs. Perry raises a title question affecting real property located within the State which the Probate Court has no jurisdiction to determine.
Because of the fact that the State did not file its plea to the jurisdiction until the cause reached the District Court on appeal, the respondents insist that the plea to the jurisdiction has been waived. I cannot agree. The pleadings in the Probate Court clearly show that an issue was presented requiring the trial of title to land to determine whether such land was separate or community. The opposition of the Attorney General of Texas to the final account describes certain specific items of real property and alleges that such items “ * * * listed and claimed by the executors herein in the final account as community property are in fact separate property belonging to the Estate of M. G. Perry, deceased.” The Attorney General pleaded that the separate property should be set over in full to the trustees of the testamentary trust.
The question of the jurisdiction of the Probate Court was raised by proper assignments of error in the Court of Civil Appeals. However, this being a question of jurisdiction which presents fundamental error, the question can be considered on appeal in the absence of an assignment. See Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404, (1942) ; McCarty v. Duncan, Tex.Civ.App., 330 S.W.2d 899, (1960), no wr. hist.
. The Attorney General has taken the position from the beginning of this case in the Probate Court that the final account should not be approved because a number of items described in that account were separate property. It has been pointed out that the facts show that it would be unfair to take the separate property of the deceased and divide it up fifty-fifty as if it were community. Unquestionably, a substantial portion of the property involved is separate property. The property designated as the “Big Farm,” (2480 acres) was acquired by M. G. Perry before marriage. The status of this property is fixed as separate property under the “inception of title” rule. See Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943). So long as separate property can be definitely traced and identified it remains separate property regardless of the fact that the separate property may undergo mutations and changes. See Norris v. *208Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953).
It may well be that since some of the property was purchased on credit before marriage, the community estate would be entitled to reimbursement as a matter of equity for such sums as are shown to have been applied on the prenuptial debts. This, too, is a question involving title and the final determination of the rights of the respective parties is to be determined upon equitable principles as to the amount of reimbursement. See Norris v. Vaughan, supra; Col-den v. Alexander, supra. As was said in Colden v. Alexander, a claim for reimbursement would not create an equitable claim, unless it is shown that the expenditures by the community are greater than the benefits received. The Probate Court definitely cannot give complete relief. Where the Probate Court cannot give complete relief the District Court has jurisdiction. See Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, 196 S.W. 501 (1917); Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980 (1933).
The judgment in this cause should be reversed and the cause either dismissed without prejudice to the rights of the respondents to file an original suit in the District Court to determine the title to the property, or the cause should be remanded to the District Court for trial in accordance with the views herein expressed. Under no circumstances did the Probate Court have jurisdiction to lump the separate and community property together and order the same equally divided.
Respondents have gone into the Probate Court under Section 150 of the Probate Code requesting that that Court assume jurisdiction and decree to whom the estate should be distributed. They have urged that everything ought- to be divided fifty-fifty, and have stated that treating the property as being all community would be agreeable both to the executors and to Mrs. Perry. They do not say that such an arrangement would be agreeable to the Foundation. Even if they did the agreement between the executors and Mrs. Perry was completely void under Article 4412a, Vernon’s Annotated Civil Statutes. While I am in agreement with the Court in its holdings, I insist that the only law question in the case is one of title, hence neither the Probate Court nor the District Court on appeal had jurisdiction. Under the law, M. G. Perry was entitled to will all of his separate property, owned by him before marriage, plus one-half of his community property. Mrs. Perry seeks, in the Probate Court, to thwart the will of her late husband insofar as the separate property is concerned and to have all of the property declared community property. It may be very difficult, if this case is tried according to law, for the respondents to discharge their burden of establishing the credits, if any, to which the community estate is entitled. However, the burden must be discharged in a court of competent jurisdiction. Mrs. Perry elected not to take under her husband’s will. She cannot establish that the property is all community by merely filing a final account and agreeing to treat all the property as community. In this connection, it should be pointed out that the Foundation Trustees did not agree in the waiver they signed to the correctness of the final account, they only agreed not to contest the account.