¶1Heydenfeldt, J., and Bryan, J., concurred.
¶2The statute of this State, defining the right of husband and wife passed April 11,1850, provides, that “ all property, acquired by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property.” It is further provided, that the husband shall have the entire control of the common property, with absolute power to dispose of it, and upon the dissolution of the community by death, of either the husband or wife, one half of the common property shall go to the survivor, &c.
¶3The first question raised is, as to the power of the husband to convey the common property by devise or will, and thus defeat the rights of the surviving wife. This, we have no hesitation in saying, cannot be done. Our statute has done away with the common law right of dower, and substituted in place, a half interest in the common property. This liberal provision was intended for the benefit of the wife, and the intention of so humane and benificeut a law should not be defeated by adopting a rule of construction which would leave the future maintenance of herself and family entirely at the caprice of the husband.
¶4The words, “ with absolute power to dispose of,” ought not to be extended to a disposition by devise. The husband and wife, during coverture, are jointly seized of the property, with a half interest remaining over to the wife, subject only to the husband's disposal during their joint lives. This is a present, definite, and certain interest, which becomes absolute at his death, so that a disposition by devise, which can only attach after the death of the testator, cannot affect it, for such a conveyance can only operate after death, upon the very happening of which, the law of this State determines the estate, and the widow becomes seized of one-half of the property.
¶5The appellant relies on the words of the statute, “ shall reside and acquire property,” and seems to think that this provision was intended *257to give greater privileges to those wives actually living or residing in the State, than was conferred on those not actually resident. In Kashaw v. Kashaw, 3 Cal., 312, we held the domicil of the husband was the domicil of the wife in contemplation of law, and that it was not necessary that she should be an actual resident in the State. The reasoning of that case will apply with equal force to the present, and it can hardly be supposed that the Legislature intended to deprive the wife of all right to the husband’s estate, as a penalty for not residing in the State, which would be the necessary result, if the appellant’s construction was correct.
¶6But it is urged, that by accepting the legacy, the plaintiff is estopped from setting up a claim to one half of the estate.
¶7It is a familiar principle, that an heir cannot take as a legatee, and afterwards dispute the validity of the will; but this principle does not apply in the present case. The deceased had no authority to dispose of but one half of the property—this he might do to whomsoever he pleased. The plaintiff does not contest that right, but only seeks to withdraw her own property from the operation of a conveyance, which it is claimed has despoiled her of it. This she may do with the greatest propriety, as the legacy received by her was part of her husband’s estate, and not her own.
¶8The objection, that there is a non-joinder of parties, comes too late; it should have been taken advantage of by demurrer.
¶9The judgment of the District Court is affirmed, except as to the five hundred dollars, which it is directed to allow out of the estate of the deceased, and not out of the wife’s moiety.