The petition for rehearing is denied.
The opinion of the district court of appeal does not mention the decision given by the district court of appeal of the second district filed on October 30, 1919, in Gloyd v. SuperiorCourt, 44 Cal.App. 39, [185 P. 995]. In that case a petition for a rehearing was denied by the supreme court. It is claimed in the present petition for rehearing that the opinion in this case is directly contrary to that in the Gloyd case. We think there is a clear distinction between them and one which takes away any apparent conflict. In the Gloyd case the interlocutory decree of divorce was a simple declaration that the husband, who was plaintiff, was entitled to a divorce. It did not purport to adjudicate property rights of any character. It was there held that in such a case, upon the death of the plaintiff during the ensuing year, the superior court lost jurisdiction to proceed further in the case, because the death dissolved the marriage and extinguished the pre-existing marriage status which formed the subject matter of the action, leaving nothing upon which the only final decree that could be made could operate. *Page 204 [9] In the present case the interlocutory decree not only declared that the wife, who was cross-complainant, was entitled to a divorce, but also purported to confirm and provide for the performance of an agreement made by the husband and wife in open court dividing the community property between them and providing for the payment to the wife by the husband of a permanent monthly sum for her support. It was held that although the court may have lost jurisdiction to make a final decree, after the death of the husband, dissolving the marriage status, the property rights fixed by the agreement and confirmed by the interlocutory decree still remained in existence, and that as to them the court retained jurisdiction to enter the final decree in the manner specified in the interlocutory decree. Inasmuch as a husband and wife may, even if no divorce action is pending, make such contracts as they may choose respecting property (Civ. Code, sec. 159), such contracts, whether made in an action for divorce or otherwise, are valid, and the rights thereunder do not of necessity cease upon the death of either party. Consequently, the subject matter of the interlocutory decree, so far as such rights are concerned, was not extinguished by the death of Gould during the year succeeding the interlocutory decree and the court to that extent retained jurisdiction. This distinction is clearly indicated in the opinion of the district court and it was also intimated in the Gloyd case, although in that case it was not necessary to say what the result would be as to the property relations, inasmuch as none had been adjudicated by the interlocutory decree.
Shaw, J., Olney, J., Sloane, J., Lawlor, J., and Lennon, J., concurred.
Angellotti, C. J., and Wilbur, J., dissented from order denying hearing. *Page 205