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vested in the survivor, the co-tenant had the power to defeat the right of survivorship by his own conveyance of his undivided interest. The conveyance of a joint tenant's share in the joint tenancy converts it into a tenancy in common, as between the assignee and the other joint tenants. It is, therefore, not difficult to justify on constitutional grounds the statute of Massachusetts which converted existing joint-tenancy into tenancies in common. In the same way the enactment of a statute, converting existing trusts, which could not be executed by the English Statute of Uses, into legal estates, could not be considered unconstitutional, except where the effect would be to materially change the beneficial character of the rights of the cestui que trust.

. The title of the trustee is not a vested right which would be protected by these constitutional limitations. He holds it in trust for the cestui que trust, and if the latter has not been harmed by the transfer of the land to him, the trustee can not complain. A law may be passed, abolishing the doctrine of “a use upon a use," and convert into legal estates all uses that remain unexecuted in consequence of this doctrine. It may possibly be claimed that in active trusts the trustee has a vested right to the compensation which the law allows him for the performance of his duties under the trust. But the claim is manifestly untenable. If the performance of his duties is rendered unnecessary by the transfer of the legal estate to the cestui que trust, he has not earned his compensation. One cannot be said to have a vested right to earn compensation by the performance of duties which have by law become unnecessary.

1 Tiedeman on Real Prop., $ 238; 1 Washb. on Real Property, 647, 648; Co. Lit. 2736. And the right of survivorship will pro tanto be defeated b.y a mortgage of a joint tenant's interest in a joint tenancy. York o. Stone, 1 Salk. 158; 1 Eq. Cas. Abr. 293; Simpson v. Ammons, 1 Binn. 175.

2 Holbrook v. Finney, 4 Mass. 565 (3 Am. Dec. 243); Miller 0. Miller, 16 Mass. 59; Annable v. Patch, 3 Pick. 360. See Bombaugh o. Bombaugh, 11 Serg. & R. 192.

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Under the English Statute of Uses, which has been adopted without change in most of our States, the separate use to a married woman cannot be executed into a legal estate, because she cannot hold the legal estate free from the control of the husband, as she can the use or equitable estate. A statute, which converted such an existing estate into a legal estate, without providing for its remaining her separate property, would clearly be unconstitutional, as being in violation of vested rights. On the other hand, if a statute is passed, which declares that married women shall hold their legal estates as well as equitable estates free from the control or attaching rights of the husband, the use to a married woman which remained unexecuted by the statute, only on account of her disability to nold the legal estate independently of her husband, would at once become executed into a legal estate under the old Statute of Uses, without any express legislation to that effect.?

$ 117. Interests in expectancy. - Interests in expect

ancy, when distinguished from vested rights, are held not to be under the protection of the constitution, and may, therefore, be modified, changed, or completely abolished by subsequent legislation. A purely contingent interest, to which there cannot be any present fixed title, cannot be considered a vested right. Where the vesting of a right depends under existing laws upon the future concurrence of certain circumstances or facts, the repeal of those laws will operate to defeat the expectant interest. has no property, no vested interest, in any rule of the common law.

Rights of property, which have been created by the common law, cannot be taken away without


66 A person due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim of the legislature, unless prevented by constitutional limitations.” 1

1 Tiedeman on Real Prop., $ 469.

3 See Sutton v. Aiken, 62 Ga. 733; Bratton v. Massey, 15 S. C. 277; Bayer v. Cockerill, 2 Kan. 292. 3 Cooley Const. Lim. 440.

For the reason that an interest in expectancy is not to be considered a vested right, it is the universally recognized rule of constitutional law that the right of inheritance of the heir presumptive is liable to be modified or entirely defeated by a legislative change in the law of descent. The law of descent varies according to the civil polity of each State, or, as Blackstone bas it, it is "the creature of civil polity and juris positivi.Independently of positive law, the heir acquires no rights whatever in his ancestor's property. For public reasons, and with an incidental recognition of the moral right to the inheritance of those who stand in the most intimate blood relationship with the deceased owner, the law declares that property, which the owner leaves at his death undisposed of by grant or demise, shall descend to those named by the statute and in the order given. The expectant heir's right of inheritance rests altogether upon this command of positive law. A repeal of the law before the death of the ancestor would take away all authority for his claim of inheritance. It is, therefore, a well recognized and undisputed rule of law that the statute of descent, in force when the ancestor dies, determines the right of inheritance : nemo est hores viventis.? But when the ancestor dies, and under the then existing statute of descent, the property is cast upon a particular individual as heir, the right of property becomes a vested right, and like all other vested rights, however acquired, it cannot be affected by subsequent legislation.


1 Waite, Ch. J., in Munn v. Illinois, 94 U. S. 113, 134.

? Cooley Const. Lim. 441; Story on Confl. Laws, $ 484; Tiedeman on Real Prop. § 664; Potter v. Titcomb, 22 Me. 300; Miller v. Miller, 10 Met. 393; In re Lawrence, 1 Redfield Sur. Rep. 310; Smith v. Kelly, 23 Miss. 167; Marshall v. King, 24 Miss. 85; McGaughey Henry, 15 B. Mon. 383; Jones v. Marable, 6 Humph. 116; Price v. Talley, 10 Ala. 946; Eslava v. Farmer, 7 Ala. 543; Sturgis v. Ewing, 18 Ill. 176; Emmert o. Hays, 89 Ill. 11. Cooley Const. Lim. 441.

Of the same character are the rights which the husband and wife acquire in the real and other property of each other, by virtue of the marital relation existing between them. By rule of positive law, for more or less public reasons, these rights are granted. They do not depend upon contract, and do not emanate from the marriage contract. The acquisition of these rights is merely an incident of the marriage, made so by law. If, therefore, the law upon which the claim to these marital rights of property rests, is repealed before the rights become vested, the expectant right would be defeated, because there would be no foundation for the claim of an existing right. The common law provided that the husband on his marriage would acquire an estate during coverture in all of the lands of the wife which she then owned, and, from the time of purchase, in all other lands which she may subsequently acquire. Until she acquires a title to the lands by pur

? chase or otherwise, the right to an estate in the lands is merely expectant. A law which provides that married women shall hold their lands and other property free from the attaching rights of the husband, would not be unconstitutional if made to apply to those already married, provided it was not allowed to affect the husband's vested rights in the property, acquired by the wife before the passage of the remedial statute. The statute can constitutionally cut off the husband's expectant interests in the property of the wife, acquired by her subsequently.! The same principles will apply to tenancies by the curtesy, and to dower. Until the birth of a child, who was capable of inheriting the estate, the husband's curtesy was merely an expectant interest. Upon the birth of the child, the tenancy became initiate. The title vests in him absolutely. His right of possession as tenant by the curtesy is postponed until the wife's death, but the estate is so far & vested right upon the birth of issue, that he may convey it away, and it is subject to sale under execution for his debts.? Any law which provided for the abolition of tenancy by the curtesy, could not constitutionally be made to apply to those cases, in which the tenancy by the curtesy has become a vested right by the birth of issue, and a concurrence of all the other conditions, which are necessary to the existence of the tenancy. For in such cases the tenancies by the curtesy have become vested rights. But the law

1 “Dower is not the result of contract but a positive institution of the State, founded on reasons of public policy. To entitle to dower, it is true, there must be a marriage, which our law regards in some respects as a civil contract. So the death and seisin of lands by the husband during the coverture are also necessary to establish a right to this estate. But they are not embraced by, nor are they the subjects of the marriage contract. The estate is by law made an incident of the marriage relation and the death and seisin of one of the parties are conditions on which it comes into existence. It stands, like an estate by the curtesy, on the foundations of positive law.” Moore v. City of New York, 8 N. Y. 110.

2 Tiedeman on Real Prop., $ 90; 1 Bla. Com. 442; 1 Washb, on Real Prop. 328, 329.

Westervelt v. Gregg, 12 N. Y. 202; Norris v. Beyea, 13 N. Y. 273; Pugh v. Ottenheimer, 6 Ore. 231 (25 Am. Rep. 513); Bishop Law of Married Women, $$ 45, 46. In Massachusetts it has been held that the husband's contingent interest as husband, in the right of property to which the wife is entitled subject to a contingency, is so far a vested right that it cannot be affected by remedial legislation. Dunn o. Sar. gent, 101 Mass. 336. See Plumb v. Sawyer, 21 Conn. 351; Jackson o. Lyon, 9 Cow. 664; Pritchard v. Citizen's Bank, 8 La., 130 (23 Am. Dec. 132.)

2 Tiedeman on Real Prop., $$ 108, 109; Mattocks o. Stearns, 9 Vt. 326; Roberts v. Whiting, 16 Mass. 186; Litchfield v. Cudworth, 15 Pick. 28; Watson v. Watson, 13 Conn. 88; Burd v. Dansdale, 2 Binn. 80; Lancaster Co. Bk. 2. Stauffer, 10 Pa. St. 398; Van Duzer 6: Van Duzer, 8 Paige 366; Day v. Cochrane, 24 Miss. 261; Canby v. Porter, 12 Ohio, 79. Equity will not interfere in behalf of the wife or children. Van Duzer 10. Van Duzer, 6 Paige, 366.

3 Hathon v. Lyon, 2 Mich. 93; Long v. Marvin, 15 Mich. 60. In Illinois, the husband's curtesy is by statute given the character of the wife's dower. It, is therefore, in that State, subject to change by statute, until the death of the wife makes it a vested right. Henson v. Moore, 104 ni. 403.

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