Dissenting Opinion - DUNBAR, J.

[20 Wash. the expenses of the family, including the education of the children, shall be chargeable to the property of both husband and wife or either of them. While, for instance, a married woman might contract at a store a valid debt against the community and the husband for a sack of flour needed in the family, she could not, independently of any authority from the husband, buy out an entire establishment, amounting perhaps to thousands of dollars in value, for the purpose of engaging in a business, and thereby create a valid debt against the husband or the community.

No fraud was shown in this case, the facts regarding the purchase are conceded, and we are of the opinion that the property in question, at the time of its purchase by the wife at the execution sale, became her separate property, and it follows that the judgment of the lower court should be affirmed.

GORDON and REAVIS, JJ., concur.

ANDERS, J. (dissenting).-I am unable to assent to the proposition that Mrs. Scholl, by bidding in the stock in question at the execution sale, thereby made it her separate property, for the reason that the statute provides explicitly that all property acquired by either husband or wife, and not by gift, devise or inheritance, shall be community property. It is conceded that this stock was acquired by purchase, and hence I think it should be deemed the property of the community. In my opinion, the judgment should be affirmed, if affirmed at all, on the ground that the stock was originally purchased with the separate money of Mrs. Scholl, to establish which fact there was evidence introduced at the trial.

DUNBAR, J. (dissenting).-The testimony convinces. me that the purchase was not made with the separate money of Mrs. Scholl. I therefore think the profits aris

ing from the purchase became community property. The judgment should be reversed.

OPINION ON REHEARING, MAY 31, 1899.

GORDON, C. J.-For a former opinion in this case see 54 Pac. 1125. The principal question argued at the rehearing was whether property purchased by a married woman having no separate estate, with borrowed money, becomes her separate property or property of the community. The question was squarely decided in Yesler v. Hochstettler, 4 Wash. 349 (30 Pac. 398). The decision of that case was overlooked in the discussion of this question in the former opinion. In that case the question is exhaustively discussed and the authorities fully reviewed. In the course of the opinion the court say:

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There can be no doubt that if a married woman, under the act of 1881, borrows money entirely upon her personal credit, the money and whatever she buys with it becomes common property,

Without again attempting to review the authorities, we are disposed to think that the statute itself necessitates that conclusion. Sections 4488 and 4489, Bal. Code (1 Hill's Code, §§ 1397, 1398), define what is the separate property of husband and wife, § 4489 being as follows:

"The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise or inheritance, with the rents, issues and profits thereof, shall not be subject to the debts or contracts of her husband, and she may manage, lease, sell, convey, encumber or devise by will such property, to the same extent and in the same manner that her husband can, property belonging to him."

Section 4490 (1 Hill's Code, § 1399) provides that,

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Property, not acquired or owned as prescribed in the next two preceding sections, acquired after marriage by either husband or wife, or both, is community property."

If we are to accept the plain, statutory definitions of what is separate and what community property, it becomes at once evident that property purchased with the proceeds of a loan made by either husband or wife subsequent to marriage is community property, because it is not acquired in any of the ways enumerated by §§ 4488 and 4489, supra. It was the evident purpose of the legislature to place the spouses upon a footing of equality as nearly as practicable. Let us suppose that this transaction had been that of the husband. In that event it would scarcely be questioned that the property so acquired would have become community property. Is there any reason discoverable in the legislative enactment for regarding it differently because the wife instead of the husband is the operator? To depart from the plain letter of the statute is to embark upon a sea of uncertainty.

The decision in the case of Brookman v. State Insurance Co., 18 Wash. 308 (51 Pac. 395), was controlled by a state of facts different from that existing here. But it must be conceded that much that was said in that case conflicts with the view herein expressed, and with those expressly declared in Yesler v. Hochstettler, supra. To the extent of such conflict Brookman v. State Insurance Co. is overruled.

The judgment of dismissal in the present case is reversed and the cause remanded, with direction to the lower court to overrule the motion to dismiss and to proceed with the cause.

FULLERTON, ANDERS, DUNBAR and REAVIS, JJ., concur.

[No. 3026. Decided November 22, 1898.

THE STATE OF WASHINGTON, Appellant, v. GEORGIA PALMER, Respondent.

LARCENY OF MONEY-DESCRIPTION OF PROPERTY TAKEN.

In an information charging the stealing of money, no particular description of the money is necessary, under Bal. Code, $6859 (2 Hill's Code, § 1253), which provides that in an indictment or information for larceny or embezzlement of money, it is sufficient to allege the larceny or embezzlement to be of money, without specifying the coin, number, denomination or kind thereof.

Appeal from Superior Court, King County.-Hon. ORANGE JACOBS, Judge. Reversed.

James F. McElroy, Prosecuting Attorney, John B. Hart and Walter S. Fulton, for The State.

PER CURIAM.-This appeal was taken by the state from an order of the superior court of King county sustaining a demurrer to the following information, omitting title and formal parts:

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She, the said Georgia Palmer, in the county of King, state of Washington, on the 30th day of March, A.D. 1898, the personal goods and property of one Ebert Ora, consisting of one hundred and ninety-five ($195.00) dollars in lawful money of the United States, the same being of the value of one hundred and ninety-five ($195.00) dollars in lawful money of the United States, she the said Georgia Palmer then and there being, did then and there unlawfully, wilfully and feloniously take, steal and carry away, contrary," etc.

The reason which counsel assigns why the demurrer was sustained is that the description of the money alleged to have been stolen was considered by the lower court as insufficient. This question is settled by the statute

Argument of Counsel.

[20 Wash. (§ 6859, Bal. Code, 2 Hill's Code, § 1253), as has been frequently declared by this court. State v. Hanshew, 3 Wash. 12 (27 Pac. 1029); State v. Blanchard, 11 Wash. 116 (39 Pac. 377); State v. Johnson, 19 Wash. 410 (53 Pac. 667).

As was said in State v. Blanchard, supra, this statute (§ 6859, supra), by its terms, renders a particular description unnecessary when the property alleged to have been stolen is money. In view of the conclusion reached upon the demurrer, it becomes unnecessary to consider the other orders made by the lower court subsequent to the giving of the notice of appeal. The order must be reversed and the cause remanded, with direction to the lower court to overrule the demurrer.

]No. 3028. Decided November 22, 1898.]

L. H. HOLE, Trustee, Respondent, v. BYRON L. PAGE et al., Defendants, ISAIAH H. PAGE et al., Appellants.

DEFAULT JUDGMENT-VACATION-AFFIDAVIT OF MERITS.

Where a judgment of default is prematurely entered before the expiration of the time to plead, the defendants are entitled to have it set aside as a matter of right, without furnishing an affidavit of merits. (DUNBAR, J., dissents.)

Appeal from Superior Court, King County.-Hon. E. D. BENSON, Judge. Reversed.

Allen & Allen, for appellants:

It is true that, ordinarily, a default will not be vacated unless a meritorious defense is shown, but the appellants contend that this rule of law applies only where the parties are really in default, and where the default is attempted to be opened by showing some excusable neglect.