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could apply to all the property of those already named, who have had no children, capable of inheriting the estate. And while the birth of issue and its death before the acquisition of the property by the wife will be a sufficient performance of this condition, to enable the husband's tenancy by the curtesy to attach, as soon as the property is acquired by the wife ;' yet until the property is acquired, the right to the tenancy by the curtesy in such property is so far an interest in expectancy, that it may be taken away by statute.
On the other hand, the wife's dower is inchoate until the death of her husband. Neither he nor his creditors can by any act deprive her of her dower during coverture ;? and it is so far a mere expectant interest, that she can neither assign, release, nor extinguish it, except by joining in the deed of her husband. It cannot during coverture be considered even a chose in action; and it is not affected by any adverse possession, although such possession is sufficient to bar the husband's interest in the land. Although the authorities are not altogether unanimous, the overwhelming weight of authority recognizes the dower during coverture as being so far inchoate and an interest in expectancy, that it may be changed, modified, or altogether abolished by statute. There is no unconstitutional interference with vested rights, as far as the dower right is concerned, whether it is hy statute increased, diminished, or completely abolished, But where the dower estate is enlarged in the lands already possessed by the husband, there is a clear violation of his vested rights, because the incumbrance upon his estate has been increased. It would be the same, in respect to the wife's property, if the husband's tenancy by curtesy or other marital rights in her property were enlarged by statute, after the property had been acquired. It is unquestionably the prevailing rule of construction, that the widow's dower right in the lands, which her husband has conveyed away during his lifetime, is governed by the law in force at the time of alienation. But since the dower right in all cases is inchoate during the coverture, even in the lands which have been aliened by the husband, it is in this case as much subject to legislative change, as long as it is not enlarged, as if the property was still in the possession of the husband, and while the presumption of law may be against the application of a statute, regulating dower, to estates which have already been conveyed away, there is no constitutional objection in the way of its application to
1 Tiedeman on Real Prop., § 108; Williamson Real Prop., 228, Rawle's note; Dubs v. Dubs, 31 Pa. St. 154; Lancaster Co. Bk. v. Stauffer, 19 Pa. St. 398.
3 Tiedeman on Real Prop., $$ 115, note, 126.
3 Tiedeman on Real Prop., $ 115; Durham v. Angier, 20 Me. 242; Moore v. Frost, 3 N. H. 127; Gunnison v. Twitchell, 38 N. H. 68; Learned v. Cutler, 18 Pick. 9; Moore v. New York, 8N. Y. 110; McArthur v. Franklin, 16 Ohio St. 200. But see Somar v. Canaday, 53 N. Y. 298 (13 Am. Rep. 523); White v. Graves, 107 Mass. 325 (9 Am. Rep. 38); Buzick v. Buzick, 44 Iowa, 259 (24 Am. Rep. 740), in which the inchoate dower is considered as a vested interest, so far as to enable a wife for its protection to secure in equity a cancellation of a deed, containing her renunciation of dower, which had been procured by the fraud of the purchaser.
4 Barbour v. Barbour, 46 Me. 9; Merrill v. Sherburne, 1 N. H. 199 (8. Am. Dec. 52). See Ratch v. Fianders, 29 N. H. 304; Jackson v. Edwards, 7 Paige, 391; 8. C. 22 Wend. 498; Moore v. City of New York, 4
Sandf. S. C. 456; 8. C. 8 N. Y. 110; Melizet's Appeal, 17 Pa. St. 449; Phillips v. Disney, 16 Ohio 639; Weaver v. Gregg, 6 Ohio St. 547; Noel 0. Ewing, 9 Ind. 37; Logan v. Walton, 12 Ind. 639; May v. Fletcher, 40 Ind. 575; Carr v. Brady, 64 Ind. 28; Pratt v. Tefft, 14 Mich. 191; Guerin v. Moore, 25 Minn. 462; Bennett v. Harms, 51 Wis. 25; Henson 0. Moore, 104 Ill. 403, 408, 409; Lucas v. Sawyer, 17 Iowa, 517; Sturdevant v. Norris, 30 Iowa, 65; Cunningham v. Welde, 56 Iowa, 369; Ware o. Owens, 42 Ala. 212; Walker v. Dearer, 5 Mo. App. 139; Magee v. Young, 40 Miss. 164; Bates v. McDowell, 58 Miss. 815. Contra, Royston v. Royston, 21 Ga. 161; Moreau v. Detchmendy, 18 Mo. 522; Williams o. Courtney, 77 Mo.587; Russell v. Rumsey, 35 III. 362; Steele v. Gellatly, 41 Ill. 39. See Dunn v. Sargent, 101 Mass. 336, 340. In Indiana, it has been held that dower may be increased, as well as diminished, in the lands owned by the husband at the time when the statute was enacted. Noel v. Ewing, 9 Ind. 37. A contrary conclusion has been reached in North Caro. lina. Sutton v. Asken, 66 N. C. 172 (8 Am. Rep. 500); Hunting v. Johnson, 66 N. C. 189; Jenkins v. Jenkins, 82 N. C. 202; O'Kelly v. Williams; 74 N. C. 281.
such cases, if the intention of the legislature is clearly manifested. It is true, as Mr. Cooley states:1 that if the dower is diminished, the purchaser will get a more valuable estate for which he had not paid an equivalent consideration. But if it is the wish of the legislature that this shall be done, no provision of the constitution has been violated, for there has been no infringement of vested rights. This proposition was carried to such a logical extreme in Indiana, that, in declaring a statute, abolishing the commonlaw dower, and giving the wife an estate in fee in one-third of her husband's land in lieu of dower, to apply to the lands granted by the husband to purchasers for value, it was held that her common-law dower in such lands was abolished by the statute; while she could not claim the enlarged dower in such lands, because the statute would then interfere with the vested rights of the purchaser. Thus, she was deprived of both the statutory dower, and the dower at common-law.? It may be doubted whether, in such a case, the legislatrue intended that the statute should operate in that manner; but if the intention to have the statute apply to such cases is established, judged by the principles of constitutional construction previously deduced, there can be no doubt that the statute can be made to apply to such cases, even when its application will have the effect of depriving the widow of her dower, at common law, without succeeding in vesting in her the greater estate, intended by the statute to take the place of the dower at common law. But a statute, which simply provided for the enlargement of the dower at common law into au estate in fee could not be construed, when applied to estates that
1 Cooley Const. Lim. 442, n. 4.
? Strong v. Clem, 12 Ind. 37; Logan v. Walton, 12 Ind. 639; Bowen v. Preston, 48 Ind. 367; Taylor 0. Sample, 51 Ind. 423. See Davis v. O'Farrall, 4 Greene, 168; O'Ferrall v. Simplot, 4 Iowa, 381; Moore v. Kent, 37 Iowa, 20; Craven v. Winter, 38 Iowa, 471; Kennedy v. Insurance Co., 11 Mo. 204.
have been granted away, so as to deprive the wife of her common-law dower; for the dower at common-law would be abolished inferentially from the enlargement of the estate by the operation of the statute ; and since the statute cannot apply to such cases, because it would infringe upon the vested rights of the purchaser, the wife's dower in the lands of the husband's purchaser would remain unchanged at common law. It is probable that the Indiana court was in error in not placing this construction upon the statute in question.
But every future interest in property is not an interest in expectancy. A vested estate of future enjoyment is as much a vested right as an estate in possession. Vested remainders and reversions are, therefore, vested rights, and cannot be changed or abolished by statute. We have already discussed the character of a remainder or reversion after an estate tail, and have concluded that they are vested rights not subject to legislative change or modification. If the remainder or reversionary interest were contingent, the conclusion would possibly be different.
But is a contingent remainder, a contingent use or a conditional limitation, so far an interest in expectancy, that it may be defeated by subsequent legislation? In those cases in which the interest is contingent, because the person who is to take the contingent estate is not yet born, it may be reasonable enough to claim that the interest is not a vested right. Until one is born, or at least conceived, he cannot be considered as the subject of rights under the law. He certainly cannot have a vested right in or to anything. A statute might very properly destroy such a contingent interest. This class of cases may
1 Cooley Const. Lim. 440. See ante, $ 116.
See ante, $ 116. 8 The term “conditional limitation " is here employed as a general term, including shifting uses and executory devises. See Tiedeman on Real Prop., $$ 281, 398, 418, 536, 537.
possibly include also those, in which the contingency arises from an uncertainty as to which of two or more living persons shall be entitled to take, as where the limitation is to the heirs of a living person. No man's heirs can be ascertained until his death, although one may be the presumptive or apparent heir of another. The heir presumptive or apparent cannot be said to have a vested right to such an estate, in the sense in which the termi “ vested right” is employed in the law of real property ; but the same may be said of any contingent interest, whether it be a remainder, a use, or a conditional limitation. The person, who is to take the estate upon the happening of the contingency, can in pone of these cases claim to have a vested estate in the land; but may not the expectant owner of the contingent interest claim to have a vested, indefeasible right to the estate, whenever the contingency happens? Even in the law of real property, where the term “ vested estate" is used in an extremely technical sense, the contingent remainderman, as well as the expectant owner of a shifting use or executory devise, is deemed to be so far possessed of vested rights in the estate as to be able, at least in equity, to make a valid assignment of the interest. It would seem, therefore, that the interest in such cases would be so far a vested right that it would be beyond the reach of legislative interference. Another reason may be assigned why a statute could not operate to destroy such contingent interests, viz. : that, being created by act of the owner of the property, instead of arising by operation of law, its subsequent taking effect in possession does not depend upon the continuance of the present laws. A change in the law can only operate to defeat the contingent estate, by imposing upon the owner a prohibition against doing with the estate, what he could do without the aid of law. In all the common examples of interests in expectancy, which have been changed or abol
1 Tiedeman on Real Prop., $$ 411, 530.