Boyd v. Harrison

A. J. WALKER, C. J. The law existing at the husband’s death must govern the question of the widow’s right to dower. It is competent for the legislature to modify the law on the subject of dower, in a manner unfavorably affecting the wife, after her marriage, and after the acquisition by the husband of the land in which dower is claimed. In doing so, the legislature would neither impair the obligation of a contract, nor deprive the wife of any right of property vested in her. Dower by the common law, which, of the five species of dower known in the old English law, is the only one recognized in this country, does not result from a contract. It is given by the law to the widow, “for the sustenance of herself, and the nurture and education of her children;” and is called in the old law, udos mulieris secundum consuetudinem anglicanum.”' — 1 Thomas’ Coke, 655. It is an estate, which “ arises solely by operation of law7, and not by force of any contract, express or implied, between the parties; it is the silent effect of the relation entered into by them ; not as in itself incidental to that relation, or as implied by the marriage contract, but merely as that contract calls into operation the positive [538] institution of the municipal law.” — Park on Dower, 5, 130, et seq. The right of dower not existing by virtue of contract, the obligation of a contract is not impaired by the modification of the law which governs it. Indeed, marriage itself is not regarded as a contract, within the meaning of that article of the constitution which guards the obligation of contracts against legislative interference. It may be, that the alienee of the husband could not be affected by a statute, which, after his purchase, gave dower in the lands conveyed, or enlarged the dower, McCaferty v. McCaferty, 8 Blackf. 218; Given v. Marr, 27 Maine, 212. But wo can 'draw no analogy from such a case to govern this; for, in that case, the alienee takes under a contract which might be impaired, while dower is not the result of contract. The wife has no property in the husband’s lands, pending the coverture. Three things are necessary to the perfection of the right of dower. These three thiugs are, marriage, seizin, and the husband’s death. Before the husband’s death, the wife has not a contingent right. Her attitude is that of a party in whose favor two pre-requisites to the existence of a right have'occurred, and a remaining one is wanting. She has a mere expectancy, resting upon the probability that the remaining requisite may, at some future time, come into existence. The expectancy being clothed with the quality that no contract can defeat it without her assent, it is an incumbrance upon the husbaud’s title. This quality, -attached by the subsisting law, has given rise to some looseness of expression in describing the wife’s attitude in reference to the lands of a living husband, which is calculated to lead to the erroneous conclusion, that the wife has, before her husband’s ¿leath, a title. — Park on Dower, 237. If the wife basa right of property, depending upon the contingency other surviving, as some loose expressions would seem to indicate, then she would have a contingent remainder in all her husband’s lauds, and would be a necessary party in all suits pertaining to the husband’s title. Such a propo- • sition has no sanction in the law; but, on the contrary, [539] it is laid down that the estate of a dowress is a mere continuation of the husband’s estate. The question which we are considering, has been the subject of adjudication several times in this country; and it has been decided, in every case, that the wife has not, during her husband’s lifetime, an interest in his lands, which is beyond the control of legislation. We subjoin a list of the cases. — Moore v. Mayor, &c., 4 Seldon, 110; Reynolds v. Reynolds, 24 Wend. 193; Moore v. Mayor, &c., 4 Sandf. Sup. Ct. 456: Leavins v. Sleator 2 Iowa, 604; also, Sleight v. Read, 18 Barb. 159 ; Blood v. Humphreys, 17 ib. 660. In the case of Reynolds v. Reynolds, Judge Bronson, delivering the opinion of the court, said: “ While the husband lives, the wife has no right, interest, or estate in the land. She has nothing but a mere capacity to take in the event of her surviving her husband — she is dowable. It is not until she becomes a widow that she is entitled to dower.” The authorities and, arguments adduced fully sustain his position, and wo refer to that opinion for an able discussion of the entire subject. [2.] The complainant’s right of dower must be governed by the Code. Under that law, upon the facts before us, she is not entitled to dower, as was decided in a case between the same parties, at a former term. [3.] The administi’ator in this case is not estopped from denying that the estate of his iixtestate was of such character as to entitle the widow to dower. The point is so settled in Edmondson v. Montague, 14 Ala. 370. [4.] The decree of the probate court, allotting dower to the plaintiff, was not admissible evidence in this ease. The defendant, notwithstanding a decree for costs was rendered against him, was not a party to the proceeding, and can not be estopped by it. Judgment reversed, and cause remanded.