Tyson et ux. v. Postlethwaite et al.

is as manifest from the reading of the act as if it had stated in a preamble that, in the opinion of the legislature, the rights of widows in certain cases were too restricted; and that it was just and proper, in such cases, that, thereafter, the rights of the widow should be so extended as to allow her to elect to take, instead of her dower, the one half of the real estate of which her husband died seized, and which should remain after the payment of the debts, and that she should have a reasonable time after the settlement of the estate to make such election; and, in that case, the body of the law would as clearly indicate, as it now does, the intention of the legislature, to prescribe the limits of the widow's rights. It is true, that such a preamble might be resorted to, to aid in the construction of the law; but it is only for the purpose of ascertaining what considerations moved the legislature in its passage; and when those considerations can as well be ascertained from the body of the law, they are entitled to the same influence in its construction as if they had been stated in a preamble. In construing a statute, we must consider the mischief designed to be repressed, and the remedy intended to be given, and should so construe it as to repress the mischief and to advance the remedy, and not so as to increase the mischief and retard the remedy.

So,

In the case of the servants already referred to, while the convention, supposing they were bound to serve their masters from twenty-eight to thirty years, thought best, instead of abolishing the service altogether, to cut it down to eighteen or twenty-one years; it by no means follows that, had the convention been aware of the fact, that they were bound to no service, they would have imposed one, to the same extent to which they were willing to allow a supposed existing service to continue. in the case of the law fixing the price of wine,—supposing that the law would expire sooner, parliament was willing, when called upon to act affirmatively, to extend it to the end of the parliament, yet it did not follow that, had the lawmakers observed that the law was already perpetual, they would have been willing to limit its operation to the same term to which they affirmatively extended it. And the same remark may be made in the case of the revenue granted out of strong liquors. So, in this

Tyson et ux. v. Postlethwaite et al.

case, while the legislature, feeling called upon to extend the rights of the widow, were only willing to go so far as to allow her to take, in lieu of dower, a certain portion of the husband's estate absolutely; it by no means follows that, had they been aware that, by the existing laws, she had even greater rights than this proposed to be secured, they would have been willing to abridge those preëxisting rights to the measure prescribed in the law which did pass under a misapprehension of those previous rights. The legislature will often refuse to take away existing rights, which they would not be willing to grant if they did not exist. The legislature may, no doubt, take away rights of the existence of which they are not aware; as if, in this case, they had said, the widow shall have so much, and no more; but there would have been a manifest intention either to abridge or to extend, as the case might be, and to fix the rule of right irrespective of previous provisions. We have an example of this in the 9th section of the dower act, which provides that, where a jointure has been provided for a wife, in lieu of dower, she may elect which she will take, "but she shall not be entitled to both." But here, the legislature have granted the widow certain rights which she already possessed, but have not said she shall have no others. As in the case of the children of the registered servants, and the other cases referred to, the design of the law was to confer a benefit; and it should not be so construed as to work an injury, there being no restrictive words cutting off other rights than those granted.

But, should we take a different view of this subject, and find an intentional conflict between these two sections, found in different chapters, the rule of construction prescribed by the Revised Statutes would lead to the same practical result, admitting, as insisted by the defendants, that no election was made. The 23d section of the 90th chapter provides as follows: "If the provisions of different chapters of the Revised Statutes conflict with or contravene each other, the provisions of each chapter shall prevail as to all matters and questions growing out of the subject-matter of such chapter." The 109th chapter of Revised Statutes, entitled "Wills," embraces the whole subject of the disposition of estates of deceased persons, whether testate

Tyson et ux. v. Postlethwaite et al.

or intestate, except only the subject of dower, which is provided for in the 34th chapter, entitled "Dower," which treats of that subject alone, except where others are incidentally introduced as inseparably connected with dower. The subject-matter of this suit is the inheritance, and not dower, and, therefore presents a question growing out of the subject-matter of chapter 109; and by the rule, as above quoted, we are required to adopt the rule of right, which is given in the 46th section of that chapter, and are not allowed to adopt a rule to be found in another chapter, treating of another subject-matter. By the rule prescribed in the 46th section, the widow inherited the one half of the real and the whole of the personal estate, with the right of dower in the remainder of the real estate. When called upon to determine a question of inheritance, it is plainly written that it shall be determined by this rule. Were this suit for dower, then, according to the above rule, we should look to the provisions of the 34th chapter for the governing rule; and, by the 15th section of which, she would be entitled to dower without any election whatever, which would accord with the provisions of the 46th section of the 109th chapter, where the subject of dower is incidentally mentioned, merely for the purpose of declaring, that the taking of the rights previously granted in that section should not deprive the widow of the right of dower. In the absence of an election, which the defendants insist has not been made in this case, the widow is entitled to dower, which it is said shall govern when a question as to the right of dower is depending; and which would also be the rule under the statute of wills. Under the same circumstances, is she entitled to her inheritance by the statute of wills, which is required to govern when a question of inheritance is involved. So we see, that by adopting the rule of construction given in the Revised Statutes, we arrive at the same result, and leave the 15th section of the dower act without any practical operation different from that given in the other law.

But we choose to place our decision on what we consider higher and more substantial grounds, and hold that, as the last act was passed under a misapprehension of the rights of the widow, already secured under existing laws, and with the inten

Granger v. The Board of Trustees of the Illinois and Michigan Canal.

tion of conferring more rights than were supposed already to exist, the legislature have not, without intending so to do, repealed or restricted the operation of the former law. The old law remains unaffected by the new, and according to its provisions the rights of the parties must be enforced. The widow inherited one half of the real and the whole of the personal estate of her deceased husband, which remained after the payment of his debts, as her individual and absolute estate; and as such, upon her decease, it descended to the complainants, who are her only heirs at law, according to the provision of our statute regulating descents. Such was the decree of the Circuit Court, Judgment affirmed.

which must be affirmed.

TREAT, C. J., dissented.

ELIHU GRANGER, Appellant, v. THE BOARD OF TRUSTEES OF THE ILLINOIS AND MICHIGAN CANAL, Appellees.

APPEAL FROM COOK.

A party who leased improved canal lots from the canal commissioners in 1841, and made reparations and improvements thereon prior to the 1st of December, 1842, has not a right to purchase the lots at their appraised value, under the provisions of the 13th section of the act of the 21st of February, 1843, and the 2d sect. of the act of the 4th of March, 1843.

1851, of the Cook The bill was dis

THIS cause was heard at the May term, Circuit Court, before H. T. DICKEY, Judge. missed, and an appeal taken to this court. The facts of the case are fully stated in the opinion of the court.

E. W. TRACY, for the appellant.

N. H. PURPLE & E. C. LARNED, for the appellees.

TREAT, C. J. This was a suit in chancery, brought by Elihu Granger against The Board of Trustees of the Illinois and Michigan Canal. The bill was filed in May, 1849, and alleged,

Granger v. The Board of Trustees of the Illinois and Michigan Canal.

in substance, that complainant, in May, 1841, took possession of lots two, three, four and six, in block four, in the original town of Chicago, and has ever since had the exclusive possession of the same; that during the spring and summer of that year, he built a soot-house on lots three and four, also a large wooden building on lots two and three, and placed therein an engine and other machinery, and put in operation a foundery and finishing shop, also a building of wood on lot two, and put two forges therein, and has since used it as a blacksmith's shop; that during the year 1841, he put lots three and four in cultivation, and has since continued to cultivate the same; that he inclosed lot six, which he has since used as a yard for horses, and for stacking hay and piling lumber; that he took up his residence on lots three and four, in 1841, and resided there till 1847, since which time he has used the dwelling-house standing thereon, as a boarding-house for his workmen; that prior to December, 1842, he built a large out-building on the lots, an addition to the stable, an out-door oven, an aqueduct to the soothouse, repaired and painted the dwelling-house, added a portico and kitchen thereto, made new fences, and sunk a well and constructed an aqueduct from the river to the same; that he entered on the lots with the intention of becoming the purchaser thereof, and has expended large sums of money in making permanent improvements thereon; that the lots form a part of the lands granted by the United States to the State of Illinois, to aid in the construction of the Illinois and Michigan Canal, and were included in the grant made by the State to the board of trustees, and have been appraised at the sum of $11,450; that complainant has the right to purchase the lots at their appraised value, by virtue of the 13th section of the act of the 21st of February, 1843, and the 2d section of the act of the 4th of March, 1843; that, on the 10th of May, 1849, he made application to the trustees to purchase the lots, presented full proof to his right of preemption, and tendered the amount of the appraisement, but the trustees refused the application, and are about to sell the lots at public auction. And the bill prays, that the trustees may be compelled to convey the lots to the complainant, on payment of the appraised value. An injunction was granted, restraining the trustees from otherwise disposing of the lots.