Temple, J.
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 demand, refused to pay the same to the executor; that thereafter the claimants executed a certain paper, the contents of which are given, and then the executor was permitted to take the money. A decree was entered settling the final accounts of the executor, and finding that he had in his hands, subject to distribution, the sum. of sixteen hundred and fifty-seven dollars and ninety-four cents. A decree was thereupon entered distributing said money as community property, one-half to 1 Alice H. Burdick, widow of the deceased, and one-half j^o Arthur W. Burdick, who was sole legatee of deceased; [391]*391or, rather, at the request of said Arthur W. Burdick, to certain trustees for his benefit.
Appeals are taken from the decree by the executor, by Burdick and Sutton, as trustees, and by A. W. Burdick individually.
The executor appeals, as he states in his notice, from the whole of the decree, “ except so much of said decree as settles the account of said executor, from which last-named portion he does not appeal.”
The claim of the trustees to the five thousand dollars was- set out by the executor in the petition accompanying his final account, but, so far as the bill of exceptions shows, no action was asked in regard thereto. But if action had been solicited in regard to it, I do not see how it could affect the matter here, for the executor has not appealed from the decree which settles his final account and determines how much remains in the hands of the' executor belonging to the estate. This determination was clearly within the jurisdiction of the court. That decree is not before us on this appeal, and whatever errors we may suppose were committed by the probate court in reaching the conclusion, we cannot interfere with it. To attempt to do so would be an arbitrary proceeding without authority.
The probate court has jurisdiction as between the executor and those claiming the estate to determine what belongs to the estate. This is implied in the power to settle the final account, and, by its decree, determine what remains in the hands of the executor to be distributed. Still, since the probate court has no jurisdiction to determine the rights of those claiming adversely to the estate, if serious questions upon such claims arise, the duty of the court might be to delay the final decree until such claims can be determined in another forum. Where there is in the hands of the executor money ' which the executor claims does not belong to the estate, he should himself take steps to test the right, if serious question exists; and, if he is improperly charged, his remedy is to appeal from the decree settling his [392]*392final account. I know of no other way in which it can be reached. His counsel says the probate court exceeded its jurisdiction in determining that this money belonged to the estate; I do not think so; but, if it did, the decree affected by the error was the decree settling the final account of the executor, and determining that he had in his hands sixteen hundred dollars belonging to the estate after full administration. Since we cannot change or modify that decree on this appeal, no relief in that direction can be afforded. If we could here determine that the money belonged to the trustees, it would only establish another claim against appellant. It would not vacate the finding that he also had sixteen' hundred dollars belonging to the estate which must be' distributed to the heirs or legatees.
The executor had an opportunity to test the right of the estate to the money in question. He claimed that it was assets of the estate, and the trustees that it was not. It was his duty, if he deemed his claim just, to get it for the estate, and he had no right to compromise the claim of the estate by consenting that the trustees should have it, provided they would pay the debts and the expenses of administration out of it. I •do not think such is really the effect or meaning of •the agreement of compromise. But such is the claim ■of the trustees. Having been permitted to inventory it as assets of the estate, and administer it as such, the executor could not return the surplus to the trustees. To do so would be to assume the responsibility of maintaining the title of the trustees against the estate. The executor was not at liberty to assume such a position.
But appellant contends that the claim of the wife to a share of the funds, as community property, is a claim adverse to the estate, and that the probate court has no power to distribute her share of the community property, since, as he claims, she does not take by succession, but as survivor of the community.
Counsel argue correctly that the probate court, in the matter of the administration of estates, has jurisdiction [393]*393of the estates of dead men, and can distribute only to heirs, devisees,' or legatees, or to those claiming through them. And the decree of distribution is conclusive only as to the succession or testamentary rights. (Chever v. Ching Hong Poy, 82 Cal. 68.) The probate court, therefore, has no jurisdiction or power to deal with the wife’s portion of the community property at all, unless she takes upon the death of the husband as heir. It could not, then, determine what is community property, or what is separate property, and could not authorize a valid sale of community property to pay debts. The fact that the proposition is so novel and so startling raises a very s.trong presumption against it. To hold with the appellant would upset titles all over the state. A proposition more destructive of property rights could not be imagined. Fortunately, it has not sufficient plausibility to excite alarm.
The estate of the wife in the community property is a creature of the statute, and is, of course, just what the statute has made it. It has always been pretty much what it now is, though formerly, upon the dissolution of the community by the death of the wife, one-half of the property descended to her heirs. Even then, however, it w;as held that the title was in the husband, and the wife’s interest in it was a mere expectancy. In Packard v. Avellanes, 17 Cal. 525, it was said: “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.”
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Temple, J.
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 demand, refused to pay the same to the executor; that thereafter the claimants executed a certain paper, the contents of which are given, and then the executor was permitted to take the money. A decree was entered settling the final accounts of the executor, and finding that he had in his hands, subject to distribution, the sum. of sixteen hundred and fifty-seven dollars and ninety-four cents. A decree was thereupon entered distributing said money as community property, one-half to 1 Alice H. Burdick, widow of the deceased, and one-half j^o Arthur W. Burdick, who was sole legatee of deceased; [391]*391or, rather, at the request of said Arthur W. Burdick, to certain trustees for his benefit.
Appeals are taken from the decree by the executor, by Burdick and Sutton, as trustees, and by A. W. Burdick individually.
The executor appeals, as he states in his notice, from the whole of the decree, “ except so much of said decree as settles the account of said executor, from which last-named portion he does not appeal.”
The claim of the trustees to the five thousand dollars was- set out by the executor in the petition accompanying his final account, but, so far as the bill of exceptions shows, no action was asked in regard thereto. But if action had been solicited in regard to it, I do not see how it could affect the matter here, for the executor has not appealed from the decree which settles his final account and determines how much remains in the hands of the' executor belonging to the estate. This determination was clearly within the jurisdiction of the court. That decree is not before us on this appeal, and whatever errors we may suppose were committed by the probate court in reaching the conclusion, we cannot interfere with it. To attempt to do so would be an arbitrary proceeding without authority.
The probate court has jurisdiction as between the executor and those claiming the estate to determine what belongs to the estate. This is implied in the power to settle the final account, and, by its decree, determine what remains in the hands of the executor to be distributed. Still, since the probate court has no jurisdiction to determine the rights of those claiming adversely to the estate, if serious questions upon such claims arise, the duty of the court might be to delay the final decree until such claims can be determined in another forum. Where there is in the hands of the executor money ' which the executor claims does not belong to the estate, he should himself take steps to test the right, if serious question exists; and, if he is improperly charged, his remedy is to appeal from the decree settling his [392]*392final account. I know of no other way in which it can be reached. His counsel says the probate court exceeded its jurisdiction in determining that this money belonged to the estate; I do not think so; but, if it did, the decree affected by the error was the decree settling the final account of the executor, and determining that he had in his hands sixteen hundred dollars belonging to the estate after full administration. Since we cannot change or modify that decree on this appeal, no relief in that direction can be afforded. If we could here determine that the money belonged to the trustees, it would only establish another claim against appellant. It would not vacate the finding that he also had sixteen' hundred dollars belonging to the estate which must be' distributed to the heirs or legatees.
The executor had an opportunity to test the right of the estate to the money in question. He claimed that it was assets of the estate, and the trustees that it was not. It was his duty, if he deemed his claim just, to get it for the estate, and he had no right to compromise the claim of the estate by consenting that the trustees should have it, provided they would pay the debts and the expenses of administration out of it. I •do not think such is really the effect or meaning of •the agreement of compromise. But such is the claim ■of the trustees. Having been permitted to inventory it as assets of the estate, and administer it as such, the executor could not return the surplus to the trustees. To do so would be to assume the responsibility of maintaining the title of the trustees against the estate. The executor was not at liberty to assume such a position.
But appellant contends that the claim of the wife to a share of the funds, as community property, is a claim adverse to the estate, and that the probate court has no power to distribute her share of the community property, since, as he claims, she does not take by succession, but as survivor of the community.
Counsel argue correctly that the probate court, in the matter of the administration of estates, has jurisdiction [393]*393of the estates of dead men, and can distribute only to heirs, devisees,' or legatees, or to those claiming through them. And the decree of distribution is conclusive only as to the succession or testamentary rights. (Chever v. Ching Hong Poy, 82 Cal. 68.) The probate court, therefore, has no jurisdiction or power to deal with the wife’s portion of the community property at all, unless she takes upon the death of the husband as heir. It could not, then, determine what is community property, or what is separate property, and could not authorize a valid sale of community property to pay debts. The fact that the proposition is so novel and so startling raises a very s.trong presumption against it. To hold with the appellant would upset titles all over the state. A proposition more destructive of property rights could not be imagined. Fortunately, it has not sufficient plausibility to excite alarm.
The estate of the wife in the community property is a creature of the statute, and is, of course, just what the statute has made it. It has always been pretty much what it now is, though formerly, upon the dissolution of the community by the death of the wife, one-half of the property descended to her heirs. Even then, however, it w;as held that the title was in the husband, and the wife’s interest in it was a mere expectancy. In Packard v. Avellanes, 17 Cal. 525, it was said: “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.”
The legal title to the community property is in the husband. He has the absolute dominion and control of it, and the wife has no right or title of any kind in any specific property, but a possible interest in whatever remains upon a dissolution of the community otherwise than by her own death. This cannot be classified as any species of estate known to the law. (Civ. Code, sec. 700.) Part IV of the Civil Code treats of the acquisition [394]*394of property, and section 1000 defines five modes in which property is acquired: 1. Occupancy; 2. Accession; 3. Transfer; 4. Will; or 5. Succession. Each of these modes is treated under a title specifically devoted to the subject, laying down rules for the acquisition of property in the particular mode treated of. The last two relate to the acquisition of property from deceased owners. Title VI treats of the acquisition of such property through testamentary disposition. The next is title VII, which treats of succession. The first section under this title is section 1383: “ Succession is the coming in of another to take the property of one who dies without disposing of it by will.” The learned amicus curise, who, by permission, presented an argument upon this subject, argues from this section that only property which the deceased owner might have disposed of by will can be inherited. But this is an unauthorized addition to the statute. Property which belonged to a decedent which he could not dispose of by will is property not disposed of by will, and within the words of the statute. Suppose the previous provisions in regard to testamentary disposition of property had limited the right to one-half of a testator’s estate, and this section had remained as it now is, would not the moiety, which he could not dispose of by will, pass by succession? Infants and insane people die owning property, and they cannot exercise the testamentary power. The section follows the provisions in regard to wills, and means that the only other mode of coming to the estate of a deceased owner is by succession—and must be construed as applying to all cases which the language is broad enough to cover.
Section 1400 provides that the preceding sections as to the inheritance of husband and wife from each other only apply to separate property. This clearly implies other succeeding sections which apply to property of husband and wife which is not their separate property. Otherwise, instead of “preceding sections,” the language ■would have been “of this title.” The next section gives the entire community property to the husband, on the [395]*395death of the wife, “without administration.” What was the necessity of this provision “without administration,” if it does not go by succession?
The following section, 1402, disposes of the community property upon the death of the husband. As to the disposition of one-half of it, no one disputes that it is succession; but the language is the same in regard to the moiety given to the wife. It “goes” to her just as it “goes” to the descendants. This section is referred to in section 1274 of the Civil Code, and it seems to be there expressly determined that both husband and wife take some interest in the community property by succession. All property “ to which heirs, husband, widow, or next of kin might succeed might be disposed of by will, except as otherwise provided in sections 1401 and 1402.” This is an express legislative declaration that the disposition of the community property made in sections 1401 and 1402 is succession. Another consideration makes this equally clear, so far as the succession of the wife is concerned. In section 1402 it is provided that upon the death of the husband her share is equally subject to his debts, the family allowance, and the charges and expenses of administration. In the Code of Civil Procedure ample provision is made for the payment of all .these charges from the estate of the deceased. There is,no provision for calling upon the widow to contribute. Estates composed of what was community property in whole or in part are certainly common. If it had not /been intended that the entire community property should be administered as estate of the husband, so important a matter could not be overlooked. Yet the probate laws only authorize the administrator to take charge of the property of the deceased (Code Civ. Proc., secs. 1443, 1581), and the final settlement of the accounts of the administrator is conclusive only upon ¡those interested in the estate, and the decree of distribution only upon heirs, legatees, or devisees.
( The codes are in pari materia and must be construed one. This plain intent, that the title of the wife to [396]*396one-half of the community property shall be administered as part of the estate of the husband, added to the continuous and uniform practice of near half a century, must place this matter beyond all doubt.
The suggestion that the husband takes from the wife her share of the community property upon her death by succession may seem inconsistent with the proposition that during her life she had no estate of any kind in the property. That she had no estate in the community property—vested or contingent—was held by this court, when the law was that upon her death one-half of the community property was inherited by her next of kin. The change was made by amendments ■ which are codified in sections 1401 and 140.2, and which merely change the succession. It was competent for the legislature to provide the mode in which the wife’s expectancy should pass to the husband. It might have done this by creating a right by survivorship an an incident to the estate, but it has done this by providing for a succession. Since the wife could not encumber it or contract with reference to it, there can be no essential difference.
A. W. Burdick and A. M. Sutton, as trustees, and A. W. Burdick, in his own right, have taken appeals from the entire decree. Obviously, the appeal taken by the trustees must be dismissed. They are not named in the will and claim no rights under it, and have presented no claim against the estate. They are not, and could, not have been, aggrieved persons. The order refusing to postpone the decree of final distribution was not appealable.
The application was to “ suspend the order of final distribution,” because it was claimed that the money belonged to a trust fund. A. W. Burdick, as legatee under the will of Steven Powell Burdick, had no interest in such a contention, and, as legatee, was not injured, As trustee he cannot be heard here.
The court found the money in the hands of the executor to be community property, and distributed it ac - [397]*397cordingly. There is no evidence in the record which tends to show that the finding of the court was erroneous, and the bill does not show that it contains all the evidence which was before the probate court.
The appeal of the trustees is dismissed, and, as to the other appellants, the decree is affirmed.
McFarland, J., Van Fleet, J., and Henshaw, J., concurred.