Field, C. J. and Baldwin, J. concurring.

The only question we propose to consider in this case is, whether upon the dissolution of a marriage by the death of the wife, one-half of the common property is subject to administration under the provisions of the act regulating the settlement of the estates of deceased persons. Section fifty-two of that act provides generally for the granting of administration of the estates of all persons dying intestate ; and section one hundred and ninety-four requires the administrator to take possession of all the property, real and personal, belonging to the estate. The solution of this question depends upon the construction to be given to certain provisions of the Act of April, 1850, defining the rights of husband and wife. The second section of this act declares what shall be common property; and section nine gives to the husband the entire control and management of such property, with the like absolute power of disposition as of his own separate estate. The eleventh section is as follows: “ Upon the dissolution of the community by the death of either husband or wife, one-half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased. If there be no descendants of the deceased husband or wdfe,- the whole shall go to the survivor, subject to such payment.”

Various difficulties suggest themselves in the construction of the eleventh section of this act. In Panaud v. Jones ( 1 Cal. 488 ) Mr. Justice Bennett remarked in reference to this section, that it was manifestly a deviation from the civil and Spanish law, unless the words “ debts of the deceased ” could be construed as including all debts .of the community contracted for the common benefit, whether by the deceased or by the survivor. “ If this construction may be put upon it,” said he, “ then it is consistent with the civil and Spanish law; and what is more, is consistent with reason and justice.” These suggestions were not called for by any question *537 involved in that case; but our opinion is that the view intimated as to the meaning of the words referred to, was based upon a correct interpretation of the intention of the Legislature, and we therefore adopt it as a just and reasonable construction of the section in this respect. Our whole system by which the rights of property between husband and wife are regulated and determined, is borrowed from the civil and Spanish law, and we must look to these sources for the reasons which induced its adoption, and the rules and principles which govern its operation and effect. The relation of husband and wife is regarded by the civil law as a species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of its debts. “ The law,” says Schmidt, in his work on the civil law of Spain and Mexico, “ recognizes a partnership between the husband and wife as to the property acquired during marriage.” The same doctrine is laid down by many other writers, and such seems to be the universal understanding of the nature of the marital relation in matters of property as viewed by the civil law. It is the well settled rule of that law that the debts of the partnership have priority of claim to satisfaction out of the community estate. (Jones v. Jones, 15 Tex. 143 , and authorities there cited.) Whether this rule prevails to its full extent under our statute it is unnecessary to determine, but it is certain that the Legislature intended to establish a similar relationship as to ¡iroperty to that existing in the civil law. The contracting of debts is one of the incidents of that relationship, and it would be unreasonable to suppose that the intention was to do away with so important a principle as that of the liability of the community property for their payment. We think that for all purposes connected with the administration of such property, the debts of the community are to be regarded, not as the mere private and individual debts of the husband, but as obligations involving the liability of each of the members of the community. It may become a question to what extent the property held in common can be subjected after the death of the wife to the payment of the separate debts of the husband, but this question is not before us, and it is unnecessary to express any opinion in regard to it. In Van Maren v. Johnson ( 15 Cal. 308 ) we held that the common property was lia *538 ble-, during the marriage for the debts of the wife contracted prior to the coverture; and, of course, similar debts of the husband would stand upon the same footing. But the statute provides, that upon the dissolution of the marriage by the death of one of the parties, the descendants of such party shall take one-half of the common property, “ subject to the payment of the debts of the deceased.” If the dissolution is caused by the death of the husband, there is no doubt that the whole property is liable for the payment of his debts, and we have expressly so held; but where the marriage is dissolved by the death of the wife, it is by no means clear that her descendants are not entitled to one-half of the property, free from any claim on the part of the creditors of the husband, unless they are also creditors of the community. It is, however, unnecessary to pursue this subject, as we do not propose to express any opinion upon the point. The property of the community is undoubtedly liable for the payment of its- debts; and the question is, by whom and in what manner such property is to be administered, upon the dissolution of the community by the death of the wife.

During the marriage the husband is the head of the community, and the law invests him with discretionary power in all matters pertaining to its business or property. In fact, its business is conducted and its property acquired in his name, and his authority in the administration of its affairs is exclusive and absolute. The wife has no voice in the management of these affairs, nor has she any vested or tangible interest in the community property. The title to such property rests in the husband, and for all practical purposes he is regarded by the law as the sole owner. It is true, the wife is a member of the community, and entitled to an equal share of the acquests and gains ; but so long as the community exists her interest is a mere expectancy, and possesses none of the attributes of an estate, either at law or in- equity. This was held in Van Maren v. Johnson , before referred to, where the interest of the wife was compared to that which an heir may possess in the property of his ancestor. The same doctrine prevails in Louisiana, and appears to be an established principle of the civil and Spanish law. In Guice v. Lawrence ( 2 La. Ann. 226 ) the Court said: “ The laws of *539 Louisiana have never recognized a title in the wife during marriage to one-half of the acquests and gains. The rule of the Spanish law upon that subject is laid down by Febrero with his usual precision. The ownership of the wife, says that author, is revocable and fictitious during marriage. As long as the husband lives and the marriage is not dissolved, the wife must not say that she has gananciales, nor is she to prevent the husband from using them, under the pretext that the law gives her one-half. * * The husband is, during marriage, real y verdadero dueño de todos, y tiene en el efecto de su dominio irrevocableUnder the civil and Spanish law, the estate of the wife, upon her death, becomes entitled to one-half of the ganancial property, and the same rule exists, by statutory enactment, in Louisiana and Texas, where the mode of administering the community estate is specially provided. We have in this State no statute of a similar import; and, in view of the legal position of the parties during marriage, we do not see upon what principle the intangible interest of the wife can be regarded as a part of her estate. It would be absurd to attribute to her death the effect of transforming this interest into a legal right, and impressing upon it the character of a title in her representatives. The interest secured to her by the statute only vests upon the death of her husband; and whether it is ever to assume a legal shape depends upon the contingency of her being the survivor. Where the marriage is dissolved by her death, her descendants succeed to the interest to which she would otherwise be entitled. They do not, however, succeed to such interest as a portion of her estate, but because it is vested in them by the statute. It is suggested that, in this respect, the statute is an unconstitutional infringement of the rights of the husband, but we do not perceive the force of this suggestion. It is true, the husband, so long as the marriage exists, is regarded as the owner of the whole property; but his rights of ownership are derived from the statute, and he holds the property subject to its provisions. We think the objection cannot therefore be sustained; but to what extent the rights of the husband are affected by a dissolution of the marriage, it is unnecessary to determine. There is no doubt that he is entitled to represent the community in the settlement of its affairs, and pos— *540 sesses the authority necessary to enable him to do so. He has the right, of course, to the possession and control of the property, and the power to make any disposition of it required for the purposes of the settlement. This appears to be the rule of the Spanish law, and even in Louisiana and Texas, where a different mode of administration is provided by statute, the authority of the husband, as survivor, to discharge the debts of the community, and to dispose of the community property for that purpose, has been repeatedly recognized. Thus in Jones v. Jones, the Supreme Court of Texas, after stating that the community debts had priority of claim to satisfaction out of the community estate, and that no administration had been taken out in accordance with the statute, proceeded to say : “ 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. *' * 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 and inducements to the various sales made by the survivor, we are not informed. They 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 that they could not be disturbed.” So in Primm v. Barton, the same Court, in referring to Jones v. Jones, said : “We have hitherto had no reason to be dissatisfied with these doctrines, and believe that such powers are fairly within the scope of the authority which, on reason and principle, must legitimately appertain to the survivor.” The Court adds, however, that “ these remarks refer to the power of the survivor prior to the grant of administration on the estate. After such administration under the present laws, the estate must take the course prescribed by the statute.” ( 18 Texas, 206 .) In the matter of the succession of McLean ( 12 La. Ann. 222 ) the Court said : “As the husband is responsible for the debts of the community, and must answer for the same out of his separate estate, if the community is insufficient, *541 and as the wife may renounce and claim that her paraphernal rights shall be paid out of his estate, the settlement of the community is a natural consequence of the settlement and payment of the debts of his succession.” It is evident that under our statute the husband has the exclusive right to administer the community estate, and we are satisfied that the only character in which he can do so is that of survivor. No other mode of settlement has been provided, and we think there is nothing sufficiently tangible in the interest of the wife to become the subject of proceedings in probate under existing laws. Such interest constitutes neither a legal nor an equitable estate, and there is, therefore, nothing in it for a Court of Probate to act upon. If, under the statute, the title of the husband, upon the death of the wife, is divested as to any portion of the property, such title passes directly to the descendants of the wife, and they take it subject to the liability of the property to be absorbed in the payment of debts. No special remedy exists for the enforcement of the claims of creditors, or the protection of persons interested in the preservation of the property; but the general powers of the Courts are sufficient to furnish any relief necessary for these purposes.

Judgment affirmed.