Morrison v. Rice

Yanderburgh, J. One John H. Morrison was seized of the land in controversy on and previous to the eighth day of June, 1866. The; plaintiff was then his wife. On that day he granted and conveyed, the premises to one Elias Moses, under whom, through mesne conveyances, the defendant claims title. Morrison died in April, 1877, leaving the plaintiff, his widow, him surviving. Plaintiff did not join in her husband’s deed to Moses; hence her inchoate right of dower was [437] not affected thereby. But before the decease of her husband the act of March 9, 1875, (Laws 1875, c. 40,) was passed, abolishing dower. This act gave the surviving wife a life-estate in the homestead, and one-third in fee of all other real estate of the husband of which he died seized. The plaintiff had then no certain or vested interest in her husband’s lands. Her estate was in expectancy merely, contingent on her surviving him. Dower is not the result of the marriage contract, but is a provision which the law makes, founded on public policy, for the benefit of the wife, as an incident to the marriage relation, and contingent upon the seizin and death of the husband. Before the right of dower becomes fixed and consummated by his death, it is therefore subject to legislative control, and may be modified or taken away. Guerin v. Moore, 25’ Minn. 462; Cooley, Const. Lim. 360; Moore v. Mayor, 8 N. Y. 110, (59 Am. Dec. 473;) Barbour v. Barbour, 46 Me. 9; Bennett v. Haines, 51 Mo. 260; Bailey v. Mason, 4 Minn. 430, (546.) After the passage of the act of 1875 the land in question no longer remained subject to plaintiff’s contingent right of dower, and the grantee of her husband held the same divested of such claim. The legislature, in 1876, (Laws 1876, e. 37,) modified the act of 1875 by substituting, in the place of “one-third of all other lands of which the deceased died seized,” the words, “one-third of all other lands of which the deceased was at any time during coverture seized or possessed.” The act of 1876 was not intended to interfere with vested rights, and could not do so. By operation of law the estate of defendant in this land was, on the passage of the act of 1875, fully discharged of all claims of the plaintiff to dower. It was not competent for the legislature thereafter to interfere with or diminish his estate in the land, nor to grant her any new estate or interest therein. Taylor v. Sample, 51 Ind. 423; Dunwell v. Bidwell, 8 Minn. 18, (34;) Kipp v. Johnson, 31 Minn. 360, (17 N. W. Rep. 957;) Cooley, Const. Lim. *365, 366. The power of the legislature to regulate the descent of property, to create and secure dower and homestead rights and interests, for the better protection of the family, is undoubted. Such rules and provisions are founded in public policy, and are necessary for the [438] best interests of society. But no legislative changes could affect rights or estates previously vested in heirs or grantees. Cooley, Const. Lim. *'360. Judgment affirmed.