I do not concur in the majority opinion of the court. My dissent relates solely to the point decided, that the surviving wife of the community lost her power to sell the effects of the community for the purpose of paying community debts after her second marriage. In other respects, I concur in the disposition made of the other questions discussed in the opinion.
The relationship of the husband and wife as to their rights in the community property is in the nature of a connubial partnership, of which the right of disposition and control is lodged in the husband during a continuance of the marital relationship. Upon his death these rights and powers, for the purpose of satisfying the liabilities created by the partnership, are vested in the surviving wife, and as the survivor of such partnership she can dispose of the partnership assets for the purpose of paying the community debts. The question is one of power. It is granted her upon the idea that she, being the survivor, has the right to wind up the affairs of the partnership to the extent of paying the common liabilities by the firm assets. It seems to me that the right is based upon this idea solely, and that the wife does not lose this power upon her second marriage. If it was the case that the power of the wife was lost or regulated by subsequent marriages, the power would revive when the second husband died and would be lost when the third husband took his place, and so on ad infinitum as often as she *Page 621 may enter into subsequent marriages. In other words, the power and right would fluctuate according to the subsequent marriages and release therefrom by divorce or death. I do not believe that the law rests the power upon such uncertain contingencies.
In these sales by the survivor for the purpose of paying the common debts of the spouses the law does not require that the purchaser shall see to the proper application of the purchase money. But it assumes that, the sale being for such purpose, it will be applied by the survivor to the payment of such debts; and the law can not assume that the second husband will undertake to defeat this purpose. The second husband, as said in the opinion of the court, has no interest in the property that is sold or the property arising therefrom except that given by law in the management of the wife's separate property. If this separate property of the wife is derived from her interest in the community estate of the former marriage, it is subject to the payment of the debts of such former community. So is also the interest of the heirs of her deceased husband in the community property subject to such debts. As to the interest of such heirs, the husband has no power over it whatever, either to receive, control, or dispose of. If such property is in the hands of the wife, the second husband does not control it, and does not acquire any sort of interest in it. There is nothing in the law that prohibits the wife from having possession of such property of the heirs that they received from the community estate of a former marriage.
Suppose that the wife prior to the second marriage had sold all the community property of the former marriage for the purpose of paying community debts, and before paying such debts she entered into the second marriage and had the funds, the proceeds of such sale, on hand at that time, and after such second marriage applied the money to the payment of the community debts of the former marriage. Could the heirs have recovered their interest in the funds so paid out, on the ground that the wife had no power to pay because she had contracted a second marriage? I think not. If this be answered by saying, that the money being actually applied to the discharge of debts the fund sought to be recovered was originally liable for, and for such reason the heirs would be precluded from recovery, the same reason can be given why the heirs should not recover in this case. It is true, that here there is no proof that the proceeds of the sale of the certificate was actually applied to the payment of community debts of the former marriage; but there is the presumption of law that such debts were paid, and in legal effect it is the same as if proof of payment was made, the case as it then stands being in effect an application by the surviving wife of the certificate to the satisfaction and discharge of debts that it was subject to. *Page 622
If the rule announced in the opinion of the court is correct, the power to make such payment by the wife after the second marriage would not exist in any case, and the heirs would be permitted to recover, notwithstanding the money was applied to the payment of legal debts for which the fund was liable. Because the reason in the opinion given why the surviving wife is deprived of such power is based upon the idea that by the second marriage she loses for all purposes her entity as a free agent, and as at common law is submissive to the dominion of her husband, she being covert and he baron. The property rights of the spouses under our system is opposed to this idea.
In my opinion the case should be affirmed.