Magee v. Young

HaNdy, C. J., delivered the opinion of the court. This was a petition in the Court of Probate for the allotment — 168 — of dower to tlie widow of James Young, deceased, in Ms real estate. It appears by tbe petition and the answer of the appellee, the administrator of the deceased husband, that the appellant and the deceased were married prior to November, 1857, and that, prior to that time, he acquired the lands in which dower was sought to be recovered, and that he died seized thereof in the year 1860, and intestate; that his personal estate was insufficient to pay his debts, and that his lands had been decreed, by the Court of Probate, to be sold for that purpose; that, at the time of his death, his widow had separate property in her own right, equal in value to what would be her lawful portion of her husband’s real and personal estate, which portion would not exceed $2,500, and her separate estate, so owned and held by her, was of the value of $6,000 — and upon these grounds, the administrator resisted the application for dower, and, on the hearing, the petition was dismissed. It appears that the marriage and the seisin of the husband of the lands in question, took place before the provisions of the Revised Code touching the subject went into operation on the first day of November, 1857, but that his death took place after that time. And it has been held by this court, that, both in cases of testacy and intestacy, where a husband dies leaving a widow with a sepa/rate estate, her light to dower in the real estate is controlled by the provisions of article 30, Rev. Code, 337 — and this in virtue of the provision in article 176, Rev. Code, 470. Whitley v. Stephenson,, 38 Miss. 113. The result is, that, in cases embraced in these statutes, the widow is not entitled to dower in the real estate of her husband where she had a separate property, at the time of his death, equal in value to what would be her portion of her husband’s real and personal estate. But it is contended in behalf of the widow, that these provisions of law cannot affect her, because her right of dower became a vested interest in consequence of her marriage and the seisin of the husband during the coverture, which took place before these provisions were enacted,1 and that it was not competent for the legislature to interfere with her right — 169 — thus vested. And tbe question presented is, whether it is competent for the legislative to modify and change the laws in relation to dower, to have effect upon cases where the marriage and seisin have taken place before the passage of the act, but the title has not been consummated by the death of the husband; and this depends upon the nature and character of the right of dower before the husband’s death. It is unquestionably true that the concurrence of marriage and seisin constitutes the foundation of the right of dower; but they do not of themselves vest the title in the wife. Park on Dower, 7. They give rise to an inchoate right, which does not become complete until the death of the husband. 4 Kent’s Com. 50. And an inchoate right of dower is a mere possibility, and not an estate. 1 Hilliard on Real Property, 601, section 28; because it is liable at any time to be defeated by the death of the wife, the husband surviving. From the death of the husband, the incipient title, which existed in the wife during coverture, becomes consummated and perfected. Park on Dower, 247; 1 Cruise Dig., title vi., section 1; and until that time, it is not a vested estate, but a mere contingent interest or a chose in action. 4 Kent’s Com. 61. This right appears to be analogous to that of a husband to his wife’s personal property and choses m action not reduced to possession by him during the coverture. That is a qualified right, upon the condition that he reduce them to possession during coverture — a condition precedent that must be performed before the right becomes vested. So in this case, the right of dower depends, for its substantial exercise, upon the contingency that the wife survive the husband; and until that occur, no interest becomes vested in the wife. It is settled by this court, that such right of the husband to the wife’s choses m action is not a vested right; and that, before such right becomes vested by the husband reducing the choses m action to possession, the legislature has power, as a matter of public policy, to provide that all property thereafter acquired by the wife during coverture, or coming to her possession, shall inure to the sole and separate use of the wife, excluding any right on — 170 — tbe part of tbe busbancL — and this to apply to cases of marriage contracted before, as well as after, tbe passage of tbe act. Clark v. McCreary, 12 S. & M. 317. Tbe power of tbe legislature over tbe inchoate and contingent right of tbe wife to dower in tbe husband’s lands during bis life, appears to stand upon tbe same principle, and to be equally well founded in justice to secure a correlative right in tbe husband. It appears, therefore, that tbe right of tbe wife, proceeding merely from tbe marriage and seisin, tbe husband living, was not such “ an immediate fixed right of present or future enjoyment” as is held to be necessary to constitute a vested interest. King v. Marshall, 24 Miss. 90 — but a mere possible and contingent interest. And hence, as a matter of public policy, it was not beyond tbe power of tbe legislature to make laws modifying and defining tbe enjoyment of tbe right on tbe ground that such legislation would divest vested rights. It is suggested that such legislation is obnoxious to constitutional objection, because it has tbe effect to impair tbe obligation of tbe contract of marriage, in consequence of which, tbe wife became entitled to her dower in all tbe lands of which her husband was seized during coverture. This question has been tbe subject of much difference of opinion in tbe courts of many of tbe States of tbe Union. Tbe view suggested here appears to be sanctioned in Missouri, Florida, and in part in New York. Gentry v. Fry, 4 Missouri, 120; Bryson v. Campbell, 12 Ib. 498; Ponder v. Graham, 4 Florida, 23; Kelly v. Harrison, 2 John. Cases, 29; Jackson v. Edwards, 22 Wend. 498; while a different rule is held in Kentucky, Maine, Connecticut, and in other cases in New York; Maguire v. Maguire, 7 Dana, 184; 16 Maine, 479; Starr v. Pease, 8 Conn. 548; Moore v. Mayor, etc., 4 Selden, 110; White v. White, 5 Barb. 474. It is to be observed that in most of these cases, tbe question was, whether tbe ma/rriage itself, as a personal relation between tbe parties, was a matter of contract within tbe meaning of tbe constitution, so as not to be bable to be dissolved by legislative act. Tbe view taken of tbe question in tbe latter class of cases — 171 — above cited, is that marriage was a matter pubTAei jwris, created by public law, subject to tbe public will and not to that of the parties, who could not dissolve it by mutual consent; that it was more than a contract, because it established fundamental domestic relations, affecting the welfare of the community; that it was an institution of the State, founded on reasons of public policy, and was, therefore, not embraced within the inhibition of the constitution. Maguire v. Maguire, 7 Dana; Moore v. Mayor, etc., 4 Selden. This view is sanctioned by Chancellor Kent, 1 Com. 417, note; and it appears to us to be well founded in reason and principle. But dower is not a matter of marriage contract. It is no more so than the right of the husband to the choses in action of his wife not reduced to possession during coverture; which right, aa we have seen, is settled by this court to be within the power of modification by the legislature. Clark v. McCreary and King v. Marshall. In both cases, the respective rights are incidents to the marriage, and result from it to the extent to which they go, but are not the subjects of positive contract. Dower is not a right founded in contract, but one resulting from the fact of marriage, as an incident to it, and as a matter of social and domestic policy of the State; and therefore it is that a widow is entitled to dower in England, though the marriage took place in a foreign country where the common law right of dower did not exist. Park on Dower, 21,22; 2 Bac. Abr., Title, Dower C. So, by the common law, dower was forfeited by the attainder of the husband for treason. 2 Bl. Com. 130. We are therefore of opinion that the provisions of the statute under consideration, with reference to the rights of married women whose husbands were living at the date of their enactment, werp a legitimate exercise of the power of the legislature. But we deem it proper to say, that we place this decision solely on the ground of - legislative power over a subject-matter of public policy, and do not intend to intimate that a widow’s right of dower is subject to be defeated or impaired by any other means, such as alienations of the husband (other than such — 172 — alienations as are authorized by tbe statute), incumbrances created or suffered by him, or by judicial sales of his real estate as now authorized by law. The judgment must be affirmed.