The opinion
MOBGAN, C. J.,
Concurring. — While I concur in the conclusion reached in the foregoing opinion, I do so for reasons that are entirely foreign to those therein expressed.
At the time Marietta Glover died, and during the time an attempt was being made to probate her estate, Bev. Stats., sec. 5712, was in force and contained the following provision: “Upon the death of the wife, the entire community property, without administration, belongs to the surviving husband, .... ”
.The record before us discloses that the probate judge, in his decree of distribution, found the heirs to the estate of Marietta Glover to be her husband and her son; also that the land, title to which is here in litigation, was community property, which he thereupon assumed to distribute to the husband.
It is clear the land in question was the separate property of the decedent and that the probate court had jurisdiction of it.' It is also clear that tribunal did not have jurisdiction of the community property because it did not belong to the wife’s estate but, upon her death, belonged, without administration, to the husband. That court, having found the land to be community property, did not, in purporting to make distribution of it, deal with the estate of the wife, but assumed to distribute to the husband property which already belonged to him, not because he inherited it, but because he owned it. This was beyond the jurisdiction of. the court and that portion of the decree is a nullity.
“In addition to jurisdiction of the parties and the subject matter, it is necessary to the validity of a judgment that the court should have jurisdiction of the question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant, .... ” (23 Cyc. 684; Munday v. Vail, 34 N. J. L. 418; Waldron v. Harvey, 54 W. Va. 608 , 46 S. E. 603 ; Standard Savings & Loan Assn. v. Anthony Wholesale Grocery Co. (Okl.), 162 Pac. 451 , L. R. A. 1917D, 1029; Sharp v. Sharp (Okl.), 166 Pac. 175 .) “‘Jurisdiction of the subject matter’ means, not only authority to hear *443 and determine a particular class of actions, but authority t:o hear and determine the particular questions the court assumes to decide.” (Sache v. Gillette et al., 101 Minn. 169 , 118 Am. St. 612, 11 Ann. Cas. 348, 112 N. W. 386 , 11 L. R. A., N. S., 803.)
It was beyond the jurisdiction of the probate court to distribute community property to the surviving husband because it was not a part of the deceased wife’s estate. Although it had jurisdiction to do so, that court did not distribute to him the separate property of his wife; it failed to find she had separate property. That which it attempted it was without jurisdiction to do; that which it had jurisdiction to do it did not attempt.
The decree did not confer title upon George S. Glover and it is not available to appellants in support of their contention that they are innocent purchasers and encumbrancers. A prospective purchaser of this land from Glover, or his guardian, would discover, upon examination of the record, that it had been distributed to him by the probate court as community property of himself and his wife. Such a purchaser, being presumed to have knowledge of the provision of sec. 5712, supra, would know the decree was a nullity; that it could neither add to nor detract from the title Glover had, and would be put upon his inquiry as to the nature and condition of that title, which inquiry would disclose all its infirmities.
I dissent from that portion of the opinion which holds a decree of a probate court distributing property other than as directed by statute to be in excess of its jurisdiction and void; also from that portion which holds this action to be a direct, and not a collateral, attack upon the judgment (O’Neill v. Potvin, 13 Ida. 721 , 93 Pac. 20, 257 ); and from that portion which announces that “the validity of probate proceedings may be attacked for fraud and the jurisdiction of a court of equity to compel restoration of lands or proceeds fraudulently acquired by such proceedings is clear,” unless that rule is limited by a statement to the effect that decrees of probate courts in probate matters are subject to *444 attack in like manner and to like extent only as are judgments and decrees of other courts of record in matters within their jurisdiction.