The San Francisco call., 1896-08-29

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the Legislature in its wisdom may protec.s
Is 1t true that the husband is the sore OWL 20
that property as he is OF his own! Is ~ u @ uo
that these delegations of power whlch haEe
been conferred upon him are simply the enuH- !!
cation of elemental rights OF properly % na
own, and that they are not powers ,,roI 0urII and
upon MIN as an agent or trustee ~ w.. oom nosed
manage the property for that entity coln npoe.U Pc f
OF himself and wife, which In tne ians uass M %
the constitution holds the properly III erair, eur
mon such construction MS tIav t c-ra,,,a a
springs from loose dicta made py tue ouPi Ps Slne
Court at an early day, and mas no more y iouh, ~
dation IN sound Jurisprudence tnan IL mas III
natural justice
What is this community of which we speak
The husband and wife after their marriage, or
upon their marriage, constitute III .ue poup 10y
polltlc new unit different from .nen wv wv
separate entities, new unit Wnicn Is IIad
OF that other and broader unit OF society caleu
the family. So far as this new unit OF associa,
ZION is concerned it starts OUT IN ene WIZ ~
Wthout any property OF lts own, sad peIauae ,o
property which has heretofore Deiongeu 10
each one OF the component parts OF the unit ~
and continues to be their separate properly
ana does not form any part OF the Iunu, .reas
nry or property of this new compound unle
The husband and WIFE, constituting this new
community, this new association, are cnaIgea
by the policy of our law with tne equal uuty
OF ia5orlng with industry ana Saying WIN ,ba
frugality property for the perpetuatlon OF the
purposes of that union, and the euucAtl0n,
sustenance and protection OF oHsPrlng. Inc
wi1e equally with the HUSBAND tolis, equaliy
order to swell the growing heap oil thls CON-
munity.
The fruits of her labors equally with the
fruits of the labors of the husband belong to
the community and your Honors and your
Honors' predecessors have carried the ooc,
Urine still farther when you nave eeclueo
mat compensation made to the WlIe lot IN
lurles which she had sustained are also COM
mun1ty property, so that, II the vile IN an
accident shall be crippled and mangled out OF
shape shall be made sufferer Tor the balance
dnt hot
wrongdoer TO restore to her as lar as money
can do that peace and happiness and health
which has been destroyed, becomes COM
munlty property. If she loses an eye, II she
loses limb aud she is awarded $4,000 or
$4,000 by the law, the justice OF the law In
compensation OF her loss belongs TO the COM
munlty. And shall we be told at TINS DAY tnat
the money earned by the wife by the sweat OF
her brow, the economy which has enabled her
to protect her own offs pring, it may be to in
sure her peace and comfort In oid age, the
ceived for her own physical Impairment,
manning and suffering = is 1t such that
she has no proprietary interest In itT That
the husband has an absolute constitutional,
vested and inalienable right to do with that
money as he pleases, to give 1t to whom ne
pleases, to squander it as he pleases, and the
wife cannot be heard in court OF justice TO
complain? That he can bestow 1t upon such
objects of his bounty, charity or caprice as ne
pleases, and she has no voice in court OF
justice to be heard to complain?
OF disposition of the husband in the COM
munity property, 1t was not certainly so far
reaching as that which he had OF his own, for
OF his own he could dispose as he pleased,
and could defraud no one, however foolish or
1mprovident the gift might be. But 1t was set
tied in the jurisprudence OF this state that as
to the community property the husband could
not dispose of it with intent to defraud his
wife OF her just rights. The Legislature would
have had the undoubted power to enact the
substance OF those decisions into statute, ana
fn &c Il 70 iC
yided that husband shall make no disposition
of the property with intent to defraud his
wife, and we would then have statute s1m1-
lar to the general one which has existed, the
statute OF Charles, that no person should
make conveyance with intent to defraud his
creditors.
Go one step farther, and as under the statute
of Charles the courts had repeatedly held that
there were certain badges which accompanied
fraudulent transactions, and which were con-
elusive evidence OF intent to defraud, the Leg
islature might by statute have said, taking up
the wisdom of the courts and crystallizlng
these decisions into a statute, that certain
acts, or the abseEce OF certain tormal1tles IN
the transfer of property, should be held con-
itors.
The Legislature did so, and we have the
statute that conveyance OF that kind or
transfer shall be conclusivcly deemed to have
been intended TO defraud creditors unless 1t
be followed by an immediate delivery and
continued change of pos session.
law OF this State that the husband has no right
to transfer community property, with intent
to defraud his wife, assume a statute OF that
kind enacted, and the decisions are equivalent
to a statute-it was perfectly competent for the
Legislatu as a rule of evidence TO prescribe
that certain things done, or the absence OF GER
tain things undone, should be conclusive evil
dence OF intent on The part of the husband to
defraud the wife. Now the power OF the hus-
band 10 give away community property, the
right, assuming the equal proprietary right of
the wife, was never based upon anytning but
the presumed assent of the wife and could not
be, justly or philosophically The statute has
but enacted rule of evidence upon this sub
ject, when it has said in substance that the
gift of the community property by the hus-
band shall be conc-usively presumed to be in
fraud of the wife, unless her written assent
there TO has been procured.
In. answering Mr.. Ash contended that it
would be impracticable as we'll as impos-
sible for man to secure the consent of
his wife to all transfers of property. Such
law or such a construction of the code,
he said, would seriously interfere with
business and create endless trouble. At
the close OF his argument the case was
submitted.