Cutting v. Bryan , 206 Cal. 254 ( 1929 )

I concur. I do so, however, with this explanation. As I read the opinion of Mr. Justice Richards, he in effect holds that whatever may be the rights of husband and wife inter se in and to the community real property, she was represented by him in the action in the federal court against the husband, which was made the basis for the dismissal of the action now under review. It is only upon this theory that the federal court acquired jurisdiction of the subject matter of the action, for if her interest is not represented by him, then the subject matter of the two actions cannot be said to be the same. Under this view the effect of the recent amendments (Stats. 1923, p. 29) giving the wife testamentary power over half of the community property is not necessarily involved.

It is true that the Washington courts have declared the wife a necessary party in any action respecting the community real property and that a judgment against the husband alone is void. But in view of the nature of the community estate and the difficulty in fitting it into our system of jurisprudence; in view of the fact that exclusive management and control, with the general power of disposition, is vested in the husband; in view of the fact that the wife may not by her own acts alone charge or bind the community estate; in view of the fact that her separate estate is free from the community obligations, and for other reasons that need not be enlarged upon, I am content to approve the rule that in all ordinary situations the wife is represented by the husband in suits by or against him involving the community real estate, and this, too, notwithstanding the provisions of section 172a of the Civil Code, requiring her signature to a transfer of such property, and notwithstanding the further fact that a judgment in such an action may have the practical effect of a conveyance. Such a holding, too, removes all reason for hesitation in declaring the right of the wife in the community property acquired since the effective date of the said amendments of 1923 to be a vested one, as is intimated in the recent case of Estate of Phillips,203 Cal. 106 [263 P. 1017].

Rehearing denied.

All the Justices concurred.