JJ., concur.

2. HUSBAND AND WIFE 276-COMMUNITY PROPERTY DISTRIBUTION FINDINGS CONSTRUCTION.

A finding that deceased left an estate consisting of the rents, issues, and profits of the community property owned by him and his wife at the time of her death, and of property purchased with moneys derived from the sale of such community property, precludes the idea that any part of the increase in value of the property after the death of the wife was from the management of the survivor.

[Ed. Note.-For other cases, see Husband and Wife. Cent. Dig. §§ 1032-1045; Dec. Dig. 276.]

3. HUSBAND AND WIFE ESTATE.

274-COMMUNITY

Civ. Code, § 1401, declares that upon the death of the wife the entire community property, without administration, belongs to the surviving husband. Section 1386, subd. 8, declares that if deceased is a widow or a widower and leaves no issue, and the estate or any portion was common property of such decedent and his deceased spouse while such spouse was living, one-half of the property shall go to the heirs of such deceased spouse. After the death of his wife, the intestate reinvested considerable of the community estate and property also accumulated. Held, that notwithstanding the change in the form of the property the heirs of the intestate's deceased wife were entitled to take.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. 274.]

In Bank. Appeal from Superior Court, Los Angeles County; Chas. Wellborn, Judge.

In the matter of the estate of William Brady, deceased. From the decree of distribution, the State of California appeals. Affirmed.

U. S. Webb, Atty. Gen., George Beebe, Deputy Atty. Gen., Mott & Dillon, Henry T. Gage, W. I. Foley, O'Melveny, Stevens & Millikin, J. Wiseman Macdonald, Haas & Dunnigan, and Hunsaker & Britt, all of Los Angeles, for the State. Oscar Lawler and Porter & Sutton, all of Los Angeles, for respondents. Lewinsohn & Kline, of Los Angeles, amici curiæ.

ANGELLOTTI, C. J. This is an appeal by the state of California from the portion of the decree of final distribution of the estate of William Brady, deceased, which adjudges

predeceased wife of said William Brady. The other half of said property was distributed to the state of California, subject to the provisions of title 8, part 3, of the Code of Civil Procedure, and all other provisions of the statutes of the state relative to the escheat of estates. It is claimed on behalf of the state that, upon the facts, all of the property should have been so distributed to the state; . said William Brady having left surviving him no kin whatsoever. This claim concededly is well founded, unless the disposition of the property is controlled by subdivision 8 of Section 1386 of the Civil Code. The lower court treated all of the property of deceased as being controlled in its devolution by said subdivision 8 of section 1386, and distributed it accordingly.

Mrs.

[1-3] There can be no dispute on this appeal as to the material facts. The findings of the lower court declare those facts, and these findings are conclusive for all the purposes of the appeal; the evidence not having been brought before us for review. Brady, the predeceased wife of deceased, died July 22, 1894. At the time of her death there was certain property, consisting of two parcels of land, two notes secured by mortgage, and certain money, of the aggregate value of $20,238.50, which was community property of Mr. Brady and his said wife; all of the same having been acquired by them during their marriage, and none of the same having been acquired by gift, bequest, devise, or descent. Mr. Brady died intestate on October 28, 1909. In the meantime he had sold the land and collected the amounts due on the notes, and had reinvested the proceeds in stocks and bonds. He left an estate exceeding in value $70,000, all of which "consisted of rents, issues and profits of the community property owned by" him and his said wife "at

the time of the death of the latter, and of

property purchased with moneys derived from the sale of said community property and the satisfaction of said mortgages." This finding precludes the idea that any part of the increase in value of said property was other than that which had "arisen naturally and without the active engagement by the husband of his capital in some business or employment" (Estate of Cudworth, 133 Cal. 462, 65 Pac. 1041) from the common property existing at the time of death of the predeceased spouse, that any part of said increase was due to the personal activity, ability, or capacity of the surviving husband (Pereira v. Pereira, 156 Cal. 1, 103 Pac. 488, 23 L. R. A. [N. S.] SS0, 134 Am. St. Rep. 107; Estate of Gold, 151 Pac. 12).

Subdivision 8 of section 1386 of the Civil Code, the section prescribing, in nine subdi

"8. If the deceased is a widow, or widower, and leaves no issue, and the estate, or any portion thereof, was common property of such decedent and his or her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one half of such common property goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such decedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such deceased spouse and to the descendants of any deceased brother or sister by right of representation."

The principal claim of the Attorney General and of amici curia who have filed briefs herein is that none of the property left by Mr. Brady was "common property" of Mr. and Mrs. Brady at the time of the death of Mrs. Brady, and that consequently said subdivision 8 is not applicable to the facts of this case. The section is applicable only to such property left by a deceased as was "common property of such decedent and his or her deceased spouse while such spouse was living," and this has been held to mean only such property as was common property at the moment of the death of the predeceased spouse. Estate of McCauley, 138 Cal. 546, 71 Pac. 458. The theory underlying this claim is that the statute by its very terms includes only the identical property held as common property at the time of the death of the predeceased spouse, does not include other property for which the same may have been exchanged, and in no event includes the rents, issues, or profits of such property or of the property into which it has

been converted.

In the opinion filed when this case was decided in department, prepared by Mr. Justice Shaw, it was said in regard to this claim:

"It must have been foreseen by the Legislature that many years would usually elapse between the deaths of the respective spouses. The apparent object of subdivision 8, where both spouses die without lineal descendants, is to provide for the inheritance of the property equally by the respective families of the two spouses by whose efforts it was accumulated. The construction contended for would defeat the main object of the subdivision in every case where the property was sold or exchanged by the survivor in his lifetime, and in all cases with regard to the ordinary income or increase thereof. It is a familiar doctrine in this state that property does not lose its character or status as separate or community property, by a mere change in form or identity, because of a substitution of other property in the usual manner of sale or exchange, and that interest, rents, or profits therefrom retain the character in this respect of the property from which they are derived. Ramsdell v. Fuller, 28 Cal. 42 [87 Am. Dec. 103]; Schuyler v. Broughton, 70 Cal. 286 [11 Pac. 719]; Rich v. Tubbs, 41 Cal. 34;

more reasonable conclusion is that the subdivi"In view of these considerations, we think the sion applies not only to the community property in kind, as it existed at the death of the wife, but also to that into which the husband may convert it during his subsequent life, and that it also applies to the rents, issues, and profits thereof. This was the effect of the de118 [131 Pac. 67], in which case this court decision in Estate of Davidson, 21 Cal. App. nied a petition for rehearing. A part of the estate there involved was the proceeds of the property derived by the wife from the predeceased husband. It is a precedent for the conclusion above stated, although the point was not expressly mentioned.

"It does not follow from this conclusion, that the heirs of the predeceased wife have anything more than an expectancy in the property, or its proceeds, during the subsequent life of the It may also be conceded that, if such commuhusband. It does not affect the husband's title. nity property is by the husband so mingled with his other property that it cannot be traced to its origin as a part of the community propWe have no such difficulty in this case. erty, subdivision 8 could not be applied. The prop erty has been traced, and the fact is established that it is the proceeds, issues, rents, and profits of the identical property existing at the wife's death."

A rehearing in bank was granted upon the urgent petition of the Attorney General and various amici curiæ for the purpose of giving further consideration to the question. While its determination is not entirely easy, we are of the opinion that what was said on the former decision correctly disposes of the question.

As is stated therein, this conclusion in no way affects the husband's title during his life. Under section 1401, Civil Code, providing that "upon the death of the wife, the entire community property, without administration, belongs to the surviving husband,” Mr. Brady, as is claimed by appellant, was, without administration, from the moment of the death of his predeceased wife, the absolute owner of all the community property (Estate of Klumpke, 167 Cal. 415, 419, 139 Pac. 1062), as fully as though it had been his separate property during coverture, with power to deal with it as he saw fit, even to the extent of effectually devising or bequeathing it by will; subdivision 8 of section 1386 of the Civil Code applying only in the event of intestacy. This, however, is entirely immaterial in determining the proper construction of the rule of succession prescribed by subdivision 8 of section 1386 of the Civil Code. The situation is the same in this regard whether the property remain in its original form, or is exchanged by the surviving spouse for other property. In each case we are dealing with property which during the life of the surviving husband was his absolute property, to do with as he wills. The Legislature has simply enacted a rule of succession in regard thereto in the event of his dying intestate, as it unquestionably had the right to do, and we are simply required to

merce. About 70 per cent. of the work of the switch engines in the Roseville yard is interstate commerce work. Seventy per cent. of the cars moved through the yard are used in connection with interstate commerce. At the time of the accident the petitioner was not using switch engine 1173 in interstate commerce. It had been withdrawn from service in the operating department on January 13th and was not returned to the operating department until January 19th, three days after the accident occurred. The yardmaster at Roseville Junction resumed control of the operation of the engine on January 19th, when it was restored to service. The industrial accident commission concluded from these facts that the deceased at the time he sustained his injury, while in the employ of petitioner, was not engaged in interstate commerce work.

No question is here presented as to the finality of this last finding of the commission. But, indeed, that finding is not, in strictness, a finding of pure fact, but rather is it a conclusion of law drawn from a consideration of the admitted facts, to which consideration have been applied principles of law of more or less intricacy. In this respect it may be compared to a finding of ownership of land. It may be, and often it is said that it is, a mere statement of fact to declare that one owns a piece of land. But, after all, it is the ultimate conclusion arrived at from the consideration of many facts, such as written instruments and their recordation, which facts necessarily have to be considered in connection with principles and propositions of law often abstruse and difficult of determination, such as the sufficiency of the recordation and the legal meaning of the instrument asserted to convey title. Savings & Loan Society v. Burnett, 106 Cal. 514, 538, 39 Pac. 922. In this case all of the facts touching the nature of the deceased's employment, the character and use of the instrumentality in the repair of which he was engaged at the time of his death, being beyond controversy and fairly found by the commission, the one important legal question is that of the jurisdiction of the commission to retain and consider the application for relief. Phrasing it differently, if the deceased, an employé of the petitioner, who was and is engaged as a railroad corporation in interstate as well as intrastate business, was at the time the accident befell him engaged in interstate commerce, the state commission admittedly had no jurisdiction; the jurisdiction being exclusively vested in the federal authorities by virtue of the terms and provisions of the Common Carriers' Liability Act of the United States ("An act relating to liability of common carriers by railroad to their employés in certain cases," April 22, 1908, passed Public No. 100, c. 149, 35 Stats. U. S. 65).

It needs no citation of authority to show

in the purview of the federal act, the state accident board is without jurisdiction, and this proposition is of course conceded.

The federal act deals with common carriers by railroads engaged in interstate commerce. It deals with them only while engaged in interstate commerce, since of course Congress has no control over the purely intrastate operations of such roads. It provides that these common carriers "shall be liable in damages to any person suffering injury while he is employed by such carrier in such (interstate or foreign) commerce." Was the deceased at the time of his death so employed?

No fixed rule for the construction of this statute has been laid down by the Supreme Court of the United States. Perhaps none can. However that may be, in the present condition of the law, an intelligent answer to the question necessitates a consideration, at least, of the federal decisions bearing upon this statute. In Zikos v. Oregon, etc., Navigation Co. (C. C.) 179 Fed. 893, a section hand, injured while engaged in repairing a main-line track, used both for inter and intra state commerce, was held to come within the purview of the federal statute, and thus to have been engaged in interstate commerce. The Circuit Court there said:

"No doubt there may be situations, indeed we have the highest authority for it (Employers' Liability Cases, 207 U. S. 495, 28 Sup. Ct. 141, 52 L. Ed. 297), when instrumentalities that may be used for interstate or intrastate traffic, for either, as when engines or cars are underor both, but which at the time are not being used going repair, or in cases of clerical work when the acts or things done are not physically or otherwise directly connected with the moving of traffic, where there could be no ground for claiming liability under the act of Congress, even though the carrier in fact be engaged in interstate as well as local traffic. But where the to the more extended use and without which inemployment necessarily and directly contributes terstate traffic could not be carried on at all, no reason appears for denying the power over the one, although it may indirectly contribute to the other."

The reference here made to the decision of the Supreme Court of the United States in Employers' Liability Cases, 207 U. S. 495, 25 Sup. Ct. 141, 52 L. Ed. 297, is addressed to the following language from that decision: The court declares that it will not stop to consider the numerous instances "where, although a common carrier is engaged in interstate commerce, such carrier may, in the nature of things, also transact business not interstate commerce," but cites some examples, and amongst them the following: "Take, again, the same road having shops for repairs and it may be for construction work, as well as a large accounting and clerical force." In Darr v. Baltimore & Ohio Railroad (D. C.) 197 Fed. 665, plaintiff was employed by defendant to make what are called "running repairs"-temporary repairs made upon the rolling stock while in actual