In re the Estate of Burdick

December 12, 1892, the executor of the above estate filed his final account, and prayed for a settlement thereof, and for a distribution. The bill of exceptions stated “ that by said final account it appeared that, after payment in full of all claims against the said deceased and said estate, the expenses of the last sickness and all funeral charges, and all accrued expenses and charges of the administration of said estate, there remained in the hands of said executor a balance in money of eighteen hundred and fifty-five dollars and forty-one cents, from which said executor asked to be allowed a reasonable attorney’s fee, to be fixed by the court, together with such further expenses of administration as might thereafter accrue, and that the balance be distributed to the parties entitled thereto.” The hill of exceptions then proceeds to give an extract from the petition accompanying the final account,- in which, among other things, it is stated, in substance, that the executor found a deposit in a certain bank to the credit of Stephen Powell Burdick, as attorney, five thousand dollars of which was claimed by Arthur W. Burdick and A. M. Sutton, as trustees; that the bank, upon…

concurring.—The wife’s interest in the community property upon the death of the husband has many incidents similar to those of an heir, but I do not think that, under the language and spirit of the laws of this state, she can be said to be his heir to her share of that property, or that her interest therein comes to her by virtue of a “ succession” to the property of her husband. The property that is acquired by the labor of the wife during the marriage, equally with that acquired by the labor of the husband, becomes community property; and, although section 172 of the Civil Code gives to the husband the management and control of the community property—that acquired by her labor as well as that acquired by his—yet by the terms of the same section he cannot give away, or convey without valuable consideration, any portion of this property, unless she gives her written consent thereto. While a voluntary or fraudulent conveyance is binding upon his heirs, and, in the absence Of creditors, cannot be questioned by the administrator of his estate, yet he cannot by such act deprive the wife of her share of the community property. Only one-half of the community property is subject to the…