Action by Robert H. Hall against Margaret J. Johns and others to compel defendant Frank Johns to pay out of the community property of himself and wife the debt of the wife contracted by her for her own use and benefit and for the benefit of her separate property. Judgment for defendants, and plaintiff appeals. Affirmed.

SULLIVAN, C. J. This action was brought to recover judgment for a sum of money which the plaintiff was compelled to pay one William Hunter on three certain promissory notes which he signed as surety with the defendant Margaret J. Johns, the wife of the defendant Frank Johns, whereby she borrowed money from said Hunter for her own use and benefit, and while the defendants were husband and wife. The plaintiff prays for judgment against both defendants, and, further, that the court direct that said judgment be satisfied out of the separate property of the defendant Margaret J. Johns and the community property of said husband and wife. Margaret J. failed to appear or answer, and her default was entered. The defendant Frank Johns answered and denied his liability for the debts of his wife contracted after marriage, and demanded judgment against the plaintiff for his costs. The case was tried by the court without a jury, and findings and judgment were made and entered against Margaret J. Johns for the full amount of said notes and interest, and judgment entered in favor of the defendant Frank Johns for his costs. From the judgment in favor of the latter, the plaintiff has appealed.

The entering of judgment in favor of Frank Johns and in not directing the judgment entered to be satisfied out of the separate property of Margaret J. Johns and the community property of said Margaret J. and Frank Johns is assigned as error.

It is contended by counsel (1) that by the common law the husband was liable for any debt which his wife might legally contract, and, since that law constitutes the basis of our jurisprudence, rights and liabilities must be determined in accordance with its principles, except so far as they are modified by statute; (2) that the statute has modified the common law in so far as it renders the separate property of the wife liable for her debts and exempts the separate property of the husband from liability; (3) that the liability of the husband for the postnuptial debts of the wife to the extent of the community property still exists, for the reason that no statute has been enacted in this state exempting it from such liability.

The first two contentions above mentioned

of this state, the property of a husband and wife is divided into two classes, to wit, the separate property of each of the spouses, and the community property. Rev. Codes, §§ 2676, 2679, 2680. The title to the community property is in the husband, and during the existence of the community the wife's interest in the community property is a mere expectancy. During that period the husband's rights in reference to such property are active and hers merely passive; but, if he abandons his family or ceases to discharge his duties to them so far as supporting them is concerned, the wife's passive rights in the community then become active, and she may make contracts in regard to the support and maintenance of the family, which are collectible out of the community property. However, the interest of the wife is so vested in her that the husband cannot deprive her of it by voluntary alienation for the mere purpose of divesting her of her claim to it. Platt's Property Rights of Married Women, §§ 37, 38. See, also, Van Maren v. Johnson, 15 Cal. 308; Packard v. Arellanes, 17 Cal. 525; Greiner v. Greiner, 58 Cal. 115; Directors v. Abila, 106 Cal. 355, 39 Pac. 794; Spreckles v. Spreckles, 116 Cal. 339, 48 Pac. 228, 36 L. R. A. 497, 58 Am. St. Rep. 170; Ray v. Ray, 1 Idaho, 566; Wilson v. Wilson, 6 Idaho, 597, 57 Pac. 708; Bedal v. Sake, 10 Idaho, 270, 77 Pac. 638, 66 L. R. A. 60; Bank of Commerce v. Baldwin, 14 Idaho, 75, 93 Pac. 504, 17 L. R. A. (N. S.) 676. Section 2686, Rev. Codes, is as follows: "The husband has the management and control of the community property, with the like absolute power of disposition (other than testamentary) as he has of his separate estate; but such power of disposition does not extend to the homestead or that part of the common property occupied or used by the husband and wife as a residence." Under our statute the husband must maintain and support the wife and family. The wife is under no obligation to maintain the family out of her separate property except when the husband has no separate property and they have no community property, and the husband from infirmity is not able or competent to support himself. Rev. Codes, §§ 2688, 2674, 2685, 4479; Edminston v. Smith, 13 Idaho, 645, 92 Pac. 842, 14 L. R. A. (N. S.) 871, 121 Am. St. Rep. 294. The community property cannot be bound by postnuptial contracts of the

completion of transactions begun before the ing partner not only has the authority, but he death of the deceased partner, and the survivis bound, to expend firm means in protecting firm property.

From the foregoing, we conclude that the community property is not subject to the payment of said indebtedness, and for that reason the judgment of the trial court must be sustained, and it is so ordered. Costs are awarded to respondent.

STEWART and AILSHIE, JJ., concur.

WEISS v. HAMILTON. (Supreme Court of Montana. Dec. 2, 1909.) 1. APPEAL AND ERROR (§ 841*)-APPEAL IN EQUITY CASE-REVIEW.

The rule that, on appeal in an equity case, the Supreme Court will determine whether the evidence preponderates against the findings of the trial court, is applicable only where there is a controversy as to the facts, and it has no application where the facts are admitted by defendant submitting the case without introducing any evidence, as there are then only bare legal questions arising from the facts.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3315; Dec. Dig. § 841.*] 2. PARTNERSHIP (§ 5*)-ELEMENTS-SHARING PROFITS.

Rev. Codes, §§ 5466, 5469, 5482, defining a "partnership" as the association of two or more persons to carry on a business together and divide the profits, and providing that the interest of each member of a firm extends to every portion of its property, and that every general partner is agent for the firm in the transaction of its business, etc., are declaratory of the rule that, to constitute a partnership, there must be such community of interest as empowers each partner to make contracts, incur liabilities, and dispose of the property, and it is essential to a partnership that there is community of ownership in the profits; but the sharing of profits is not a conclusive test of a partnership.

[Ed. Note. For other cases, see Partnership, Cent. Dig. § 15; Dec. Dig. § 5.*

EXISTENCE EVI

For other definitions, see Words and Phrases, vol. 6, pp. 5191-5202; vol. 8, pp. 7746, 7747.1 3. PARTNERSHIP (§ 52*) DENCE-SUFFICIENCY. Evidence held not to establish a partnership because of the failure to prove a community of title, or a community of ownership in the profits, and because of the failure to prove the essential element that either of the alleged partners assumed any authority to dispose of the interest of the other in any of the property standing in their names.

[Ed. Note. For other cases, see Partnership, Cent. Dig. § 75; Dec. Dig. § 52.*]

4. PARTNERSHIP ($ 255*) DISSOLUTION RIGHT OF SURVIVOR.

[Ed. Note. For other cases, see Partnership,

Cent. Dig. § 552; Dec. Dig. § 255.*]

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by Matilda Weiss, as administratrix of R. A. Weiss, deceased, against Julia F. Hamilton. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to enter judgment for defendant.

Mattison, Cavanaugh & Poore, for appellant. Binnard & Rodger, for respondent.

HOLLOWAY, J. This is a suit for an accounting. The plaintiff recovered judgment, and the defendant appealed from the judgment and from an order denying her a new trial.

The complaint alleges: That the plaintiff is administratrix of the estate of R. A. Weiss, deceased; that on or about January 1, 1900, R. A. Weiss and this defendant entered into a copartnership, under the firm name of "Weiss & Hamilton"; that such copartnership continued until the death of Weiss, which occurred on January 21, 1906;

that during the continuance of such copartnership valuable properties were acquired and were owned by the partnership at the time of the death of Weiss; that the defendant has had the exclusive possession of such properties and has refused to account to the plaintiff. The answer admits that Weiss died on January 21, 1906, and that the plaintiff is the administratrix of his estate. It denies every other allegation of the complaint. Upon the trial the plaintiff called the assistant cashier of the bank of W. A. Clark & Bro., who testified: That in 1903 an account was opened with the bank in the name of "Weiss & Hamilton"; that the account was continued until January 18, 1906, when the sum of $2,545 was withdrawn, which balanced the account. A. F. Greene testified for plaintiff that he purchased from

the defendant a one-fourth of her undivided one-half interest in certain mining claims located south of Butte, for which he paid her $1,000. W. I. Lippincott testified: That he was secretary of the Butte Crude Petroleum Company; that the records of the company show that originally certain shares of stock had been issued to Weiss, and certain other shares had been issued to Mrs. Hamilton; that, of the snares originally issued to Weiss, 4,500 had thereafter been canceled, and a like number issued to Mrs. Hamilton at the J. H. McDonald testified that

The plaintiff herself testified that the defendant had not accounted. In support of the allegations of her complaint that a copartnership existed between Weiss and the defendant, and that such copartnership owned property which was in the possession of the defendant, it was apparently deemed necessary by plaintiff to make the defendant a witness in her behalf, and this was done. Mrs. Hamilton testified at some length with reference to the business relations which existed between herself and Weiss, from the time they first met in Spokane, in 1897, to the date of the death of Weiss, in 1906. It appears from her testimony that in 1897 she had $10,000 in cash, and that at that time Weiss was without any funds whatever. Some time later, at the suggestion of Weiss, Mrs. Hamilton furnished the necessary funds, and the two located certain oil and coal lands in Wyoming; every claim being located in the names of R. A. Weiss and Julia F. Hamilton. Later, under a similar arrangement, some 60 or more mining claims were located south of Butte, and each mining claim was likewise located in the names of R. A. Weiss and Julia F. Hamilton, locators. Mrs. Hamilton furnished all the funds necessary to make the locations and pay for the work done upon the claims. It appears from her testimony that in all these transactions it was understood between them that Mrs. Hamilton was to furnish all the money, Weiss to do the work of locating the claims, and each was to share equally in the profits, if any were realized. The oil claims were transferred to two corporations, the Butte Crude Petroleum Company and the Monumental Oil Company. Neither Weiss nor Mrs. Hamilton ever assumed to transfer joint or common property; but each apparently transferred an undivided individual interest. For her interest transferred to the Butte Company, Mrs. Hamilton received 60,000 shares of the capital stock of that company, and it appears that Weiss received, for his interest transferred to the same concern, 125,000 shares of the capital stock of the company. For her interest in the oil claims transferred to the Monumental Company, Mrs. Hamilton received $3,000 in cash, while Weiss received certain shares of the capital stock of that company for his interest. Later on Weiss became dissatisfied and exchanged his stock in the Monumental Company to Mrs. Hamilton for her interest in the coal land claims. It appears that these coal land claims were subsequently forfeited. Some of the mining claims which had been located south of Butte were sold to the Cleveland-Montana Company, a corporation. For her interest in the claims so sold, Mrs. Hamilton received $7,000 in cash, while Weiss received 300,000 shares of the capital stock of the Cleveland Company for

Weiss that he sold some of the stocks owned by him, but she did not know to whom or for what price they were sold. It also appears from her testimony: That she, and Weiss never had any common funds in which both were interested; that when property was disposed of each received a distributive share of the selling price, in money or stock; that when stock was taken by either it was controlled and disposed of by the individual owner without consulting the other. It also appears that the money deposited in the Clark bank in the names of Weiss & Hamilton was the individual money of Mrs. Hamilton, and that it was deposited in those names at the suggestion of Weiss himself. Mrs. Hamilton testifies positively that the remaining $2,545, which she withdrew from the bank on January 18, 1906, and which withdrawal balanced the account, was her individual money, in which Weiss did not have any interest whatever. During the year 1906 it was necessary to do the annual representation work on the mining claims then held by Mrs. Hamilton and the estate of Weiss, and, since the estate did not then have any funds, Mrs. Hamilton expended the $2,545, which she had withdrawn from the bank, and the $1,000 which she had received from the witness Greene, in having such representation work done. She testifies that during that year they were offered $24,000 for these mining claims; but, by reason of plaintiff's refusal to join in a sale, they were not able to dispose of them. During 1907 the representation work was not done for lack of funds, and the claims were forfeited.

The foregoing is, in substance, the whole of the material evidence introduced in behalf of the plaintiff. At the conclusion of plaintiff's case, the defendant interposed a motion for judgment in her favor. This motion was denied, and the defendant rested without introducing any evidence. The trial court found: (1) That Weiss and Mrs. Hainilton were copartners; (2) that the coal, oil, and mining claims were copartnership property; (4) that on January 18, 1906, there was on deposit in the Clark bank, to the credit of such copartnership, $2,545; (5) that Mrs. Hamilton withdrew this money and appropriated it to her own use; (6) that this money was the principal asset of the copartnership. From these and other findings, not material here, the court concluded that the plaintiff was entitled to a judgment against the defendant for $1,272.50, being one-half of the amount withdrawn by the defendant from the Clark bank on January 18, 1906.

The rule invoked by counsel for respondent that, on appeal in an equity case, this court will determine whether the evidence preponderates against the findings of the trial court, is applicable only in a case where there is a controversy as to the facts. It