Hilton v. Thatcher

FRICK, J. This action was commenced by the appellant, as the widow of John R. Park, deceased, to recover a widow’s interest in the lands of her husband, conveyed by him without her consent while the marriage relation existed. The material allegations of the complaint are, in substance, that appellant and one John R. Park,.rfow deceased, were married in Salt Lake City, Utah, December 5, 1872, and that said Park and appellant were and continued to be husband and wife until the death of said Park, which occurred on the 30th day of September, 1900; that said Park, subsequent to said marriage become seised and possessed of certain real estate situate in Salt Lake City, describing the same; that said Park on or about the 9th day of March, 1888, sold and conveyed to the respondent, George W. Thatcher, the lands above mentioned; that appellant at no time sold, conveyed, or relinquished her right or interest in and to said real estate, or any part thereof, and that she never received any consideration for said interest ; that she is entitled to a one-third interest in value of ,said premises in fee, or a one-third interest therein as a life estate as the surviving widow of said John R. Park, deceased; that said Geopge W. Thatcher died pending this action, — 364 — and the other respondents succeeded to said real estate, as tbe heirs of said George W. Thatcher; and that the appellant afterwards made demand for her interest in said real estate, upon the respondents herein; and that she has continually, since her marriage with said Park, resided in Salt Lake City, TJtah. Upon substantially the foregoing facts appellant-prayed judgment that she might be declared to be the owner of one-third in value in fee, or that her interest in said real estate may be ascertained by the court and the same set apart for her as her separate estate, or that, in lieu thereof, she might recover the value of her interest in a money judgment against the claimants of said real estate, and for general relief. To this complainant a demurrer was interposed by respondents, upon two grounds: (l)That the complaint did not state facts sufficient to constitute a cause of action; and (2) that the action was barred by the provisions of section 2859, Revised Statutes Utah 1898. The lower court sustained the demurrer, and, the appellant electing to stand upon her complaint, a judgment dismissing the action was duly rendered, from which she prosecutes this appeal. As the action is clearly not barred, the only error to be considered is whether the court erred in sustaining said demurrer and entering judgment dismissing the action upon the first ground. The action being instituted to recover a widow’s share in a deceased husband’s lands alienated by him while appellant was his wife> did the court err in view of the facts stated in said complaint, all of which are admitted by the demurrer? The answer to this question must be sought for and found by having recourse to the statutes of the territory and state of Utah, which are now in force, and such as were in force during the time stated in the complaint, so far as such statutes affected or fixed the rights of the wife in her husband’s real estate. Some of the statutes upon that subject have been amended, and others superseded by the -enactment of others from time to time. During all the time since the approval of what is known as the “Organic Act Establishing a Territorial Government for Utah,” the common law has been in force in the territory and state of Utah. — 365 — That the same was put in force by section 17 of said act, the Supreme Court of the territory of "Utah expressly decided in the case of People v. Green, 1 Utah 11. The Constitution of Utah was adopted by the people on November 5, 1895, and Utah became a state by virtue of the proclamation of the the President of the United States on the 4th day of January, 1896. By section 2 of article 24 of the • Constitution, all laws of the territory of Utah then in force were continued in force until they expired of their own limitation or were regularly repealed. The common law respecting dower thus remained in force all the time while Utah remained a territory, and continued in force after it became a state, except as modified by statutory enactment. Such a modification took effect by virtue of an act passed by the territorial Legislature in February, 1872 (Comp. Laws Utah 1876, p. 342), in which act it was provided, among other things, that “no right of dower shall exist or be allowed in this territory.” The common law upon the subject of the right of dower was thus abrogated. In March, 1887, the Congress of the United States, by virtue of its legislative powers over territories, restored the common-law right of dower in the territory of Utah, in the following words: “A widow shall be endowed of a third part of all the lands whereof her husband was seized of an estate of an inheritance at any time during the marriage unless she shall have lawfully released her right thereto.” (Comp. Laws Utah 1888, p. 119.) If we concede that this act ceased to have any force when Utah entered into the Union as a state, we nevertheless cannot avoid the conclusion that, inasmuch as the statute of 1887 was declaratory of the common law only, it was tantamount to restoring the common law upon the subject of dower. The law is well settled that, when the common law is abrogated by a statute, as was done by the statute of 1872, and such statute is expressly, or by implication, repealed, as was done by the statute of 1887, then the common law is again put in full force and effect. This rale is well stated in section 294 of 1 Lewis’ Sutherland Stat. Const., where the author says: — 366 — “The repeal of a statute which abrogates the common law revives the common law, even though there is a statute that the repeal of a repealing act shall not revive the act repealed. So the repeal of an act declaratory of the common law leaves the common law in force.” This text states the law as we believe it to be, and is, so we think, supported by the following authorities: Mathewson v. Phoenix Iron Foundry (C. C.), 20 Fed. 281; Gray v. Obear, 54 Ga. 231: Lowenberg v. People, 27 N. Y. 336; City of Chippewa Falls v. Hopkins, 109 Wis. 611, 85 N. W. 553; Hanlon v. Partridge, 69 N. H. 88, 44 Atl. 807. The law upon the subject of dower thus stood as above indicated until April, 1896, when the first state Legislature re-enacted the section of the • congressional act of 1887 above quoted. Laws of Utah, 1896, p. 356, c. 118. The law of 1896 remained in force until the 1st day of January, 1898, when section 2826 of the Revised Statutes of Utah went into effect. Section 2826 for the first tipie departed from what is commonly designated “common-law dower,” and what, for convenience, we have called and will call it in this opinion. At the time section 2826 went into effect, section 2832 also became effective in this state. Section 2826, so far as material here, reads as follows: “One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple, if she survive him.” Section 2832 reads as follows: “There shall be neither dower nor curtesy in this state.” The foregoing constitutes a brief history of the law upon the subject of dower in the territory and state of Utah from 1850, when the organic act went into effect, to the time of the death of John R. Park, the husband of appellant. The contention between the appellant and respondents is based entirely upon' the different views entertained by them respecting the effect to be given to the law .in force at the death of the deceased, Park, in view of the foregoing history. Appellant contends that the congressional act of March, 1887, was declaratory of the common law merely, and thus that law — 367 — was in force in respect to dower until tbe territory of TJtab was created into a state at which time the congressional act became dormant, and in this state the common law was at once revived; that the act of 1896 did no more than to declare the common law in force which would have been in force without that act, and thus the common law was practically in force all of the time from March, 1887, until Jan-' uary 1, 18.98, when the Revised Statutes of IJtah, 1898, containing section 2826, went into effect. The respondents contend that the common law respecting dower did not remain in force continuously from 1887, but that it vpas cut off when the territory of IJtah was created into a state and so remained until April, 1896, when it was, re-enacted. But they contend further that, if the common law of dower was in force during all of said time it was abrogated on the 1st day of January, 1898, when section 2832, which we have quoted, went into effect. Further, that section 2826 created a new right in favor of the widow and therefore cut off the common-law right as the same Avas- prior to January 1, 1898; that, inasmuch as Mr. Park did not die until more than two years after the new law went into effect, his widow cannot legally be endowed out of the land alienated by him prior to the time the law of 1898 went into effect. It is conceded upon all sides that dower is a subject that is entirely within the control of the legislative power until it becomes vested by the death of the husband, and, until vested, the Legislature may modify, abrogate, increase, or diminish it at pleasure, at least as it affects the Avife. It is further conceded that the right of dower is governed by the law in force at the death of the husand while the measure of the right is determined by the law in force at the time of the husband’s conveyance where the Avife did not relinquish her right. This, beyond peradventure, is the settled law, and we so hold. (14 Cyc. 887.) The question therefore is, did the Legislature by the adoption of the Revised Statutes of 1898, in which are contained both sections 2826 and 28.32, entirely abrogate the dower right of the wife theretofore in force, and thereby create' in its stead a new and independent right in favor of the Avidow ? — 368 — It must be remembered tbat the adoption, of the revised statutes had the effect, only, that a revision of laws usually 'has, which is now well settled in our jurisprudence. As to all laws upon any subject that are retained in the revision, whether in substance or form, the law so retained remains, notwithstanding that the old is repealed. The law upon this subject is well stated in 1 Lewis’ Suth. Stat. Const, section 269, where the text is amply supported by the authorities. If we are right, therefore, in the conclusion that the common law giving the widow a dower right in her husband’s lands was in force continuously from 1887 to the 1st day of January, 1898 — and we think the authorities sustain our conclusion — then the only question that remains for solution is, was this right cut off by the adoption of section 2832 as part of the Revised Statutes of 1898 % Section 2832 must necessarily be construed in connection with section 2826, and both of these sections must be given- effect in the light of the preceding history of the law upon the subject to which they pertain. To do otherwise might lead us away from rather than to the true legislative intent. Section 2826, as we view it, did not create a new right. It simply enlarged a right that was continuous since 1887, when the common-law right of dower was reinstated in the territory of Utah. The law of 1896 created no new right. It simply was declaratory of the already existing right. The same prerequsites which gave and vested the right are necessary under section 2826 as were necessary at any time since 18.87 and as are necessary under the common-law dower as the same is applied in most of the states of the Union, namely, marriage, seisin by, and death of, the husband, Moreover, the amount or quantity given to the widow is the same in the one as in the other. The only difference being the extent of its use. Under the law prior to the enactment of section 2826, the use was limited during the life of the widow, while, under that section, it is enlarged to a fee-simple estate’. The one was limited, the other unlimited, and this is the only difference between the right prior 1», and after,' the enactment of section 2826. Again, the right not only is the same — 369 — in quantity — one-tbird—under the law prior to 18.98, but it is extended to. tbe same class of. lands, namely to all that the husband owned during the. marriage. It was, therefore, not a creation of a new right, but simply an enlargement of a then existing right as restated in said section. Both in the new statute as well as the old one the common-law rule in respect to the vesting of the right and the distribution thereof has always been and must be applied. So far then, in view of what we have said, there would not seem to be any great difficulty in awarding the appellant her interest in lands alienated by her husand subsequent to 1887 and prior to January 1, 1898. But, as we have seen, section 2832 provides that “there shall be neither dower nor curtesy in this state.” This section, however, cannot, as we think, be construed so as to make it apply to the right of dower as a right. The right itself, as we have already pointed out, is retained in section 2826. If it should be held that the right was abrogated by section 2832, then it would be in direct conflict with what is stated in respect to that right in section 2826. Sappily a construction is'not only possible, but, to our minds, quite reasonable, which will give both sections' full force and effect. Since by section 2826 the widow’s right to a dower interest is not only retained but enlarged and there defined, it became, and, in the minds of the revisers of the law, undoubtedly was, unnecessary to longer retain the terms of “dower” and “curtesy” as the designation of that right. The estates and use of these terms were, therefore, abolished, while the right itself was continued. Some material light is obtained by a recourse to the difference in the wording between the act of 1872 abrogating the right of dower in the territory of Utah and of section 2832. In the act of 1872 the right of dower is taken away, while, by section 2832, nothing is said about the right but it simply abrogates dower and curtesy; that is, abolishes those estates-and the use or application of those legal terms in respect to the widow’s interest. Quite true, if the right did not exist otherwise in section 2826 the language employed in section 2832 might be sufficient to abolish the right. But when the right — 370 — is continued in force by another section, then, in order to harmonize the two, it is our duty to limit the one, if necessary to avoid a conflict with the other. If ye do otherwise, then ,we must say that the Legislature intended to destroy a right given in section 28.26 by what is said in section 2832. The rule of construction we seek to apply is well stated in 2 Lewis’ Suth. Stat. Const. section 376, where it is said: “The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legisature apparent by the statute, and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. 'While the intention of the Legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words.’ Words or clauses may be enlarged and restricted to effectuate the intention or to harmonize them with other expressed provisions. . . . The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they were intended to be used as they are found in the act.” Iu view that tbe Legislature was dealing with the subject of inchoate and contingent rights in adopting section 2826, is it reasonable to assume that while in the very act of enlarging the right it was thereby intended to destroy the lesser one then existing? Is it not more reasonable, in view of all the circumstances, that it was intended to continue in force the lesser right in respect to the past, while the enlarged right should apply prospectively. The Legislature could not make the enlarged right effective retrospectively. The Legislature knew the law in this regard, and made no attempt to ignore it. But neither was it attempted to cut off the right, and the Legislature is presumed to have known that, unless cut off in express terms, the lesser is included within the greater. To hold that it was intended to cut off the right altogether by section 2832 would, to our minds, lead to an absurd result. Assuming that A. and Bi had alienated all of their lands after March, 1887, and piflor to January 1, 1898, without their wives joining in their conveyances, or making relinquishment of their interest otherwise, what — 371 — would follow if the contention of respondents prevailed? Simply this: If A. had died on December 31, 1897, his wife would have received one-third interest in all his lands or the value of such third, while if B. survived till the 2d day of January, 1898 — two days thereafter — his wife wohld have obtained nothing. If the law were made to bring about this result, however unreasonable it might appear to be we should cheerfully enforce it, but, until and unless it'is made to read so, we cannot, by a loose construction, aid in bringing about such a result. Neither do we think the Legislature intended that the law should be given such effect, or they would have said so in terms. But happily we are not wholly without authorities sustaining the construction we have adopted. It is also conceded that there is authority that is contrary to our views. We will now briefly review these authorities, referring to those sustaining our views first. A brief outline of the history of dower-right legislation of the state of Iowa, so far as material here, may be stated as follows: By an act of 1852 common-law dower was restored in Iowa. In 1862 the right was enlarged to a fee-simple estate. In fact, section 2826, Devised Statutes Utah 1898, is taken from Iowa but was modified by the Legislature of Utah in minor details not material here. When the dower right was enlarged in 1862 in Iowa, the Legislature in the same act included the following words: “The estate by curtesy is hereby abolished.” It seems the act continued in this form until the adopting of what is known as the “Code of Iowa of 1873,” when the section passed in 1862 was substantially re-enacted with the words added as follows: “The estates of dowej.* and curtesy are hereby abolished.” Section 2440, Code of Iowa, 1873. We remark here that it will be observed that in Iowa the estates of dower andi curtesy were abolished, while in Utah, by section 2832, it is provided that “there shall be neither dower nor curtesy in this state.” In Iowa those two estates known by that name were abolished, while in Utah a fair construction, in view of the other sections upon the subject, would be that the use — 372 — of these terms only was abolished. But even under the law as it stood in Iowa, which, for the purpose of this case, was both in fact and law precisely as in this case, the Supreme' Court of Iowa held that the enactment of 1862 enlarging the widow’s interest from a life estate to a fee simple did not affect her rights in lands alienated by the husband prior to the passage of that law although his death did not occur until many years subsequent to this enactment. It was further held that that portion of the section abolishing the estates of dower and curtesy did not cut off the widow’s right to an interest in the lands of the husband so alienated by him. Further, that the measure of her right in such alienated lands was to be determined by the law in force at the time they were alienated. The Supreme Court of Iowa in Moore v. Kent, 37 Iowa 22, 18 Am. Rep. 1, speaking through Mr. Justice Miller, clearly states the rules of construction applicable to the statutes such as are in question here. The reasoning there seems not only forceful, but unanswerable when applied to the subject-matter, which was precisely as it is in this case. (Purcell v. Lang, 97 Iowa 610, 66 N. W. 886; Kendall v. Kendall, 42 Iowa 464; Fetch v. Finch, 52 Iowa 563, 3 N. W. 570.) There are other Iowa cases upon the same subject, but as the foregoing sufficiently illustrate and support the reasons stated above we refrain from citing them. The Indiana Supreme court, on the other hand, with both the law and the facts substantially as they were in Iowa, and as present in this case, arrived at an opposite conclusion as is evidenced by the following cases: Strong v. Clem, 12 Ind. 37, 74 Am. Dec. 200; Harrow v. Meyers, Ind. 469; Bowen v. Preston, 48 Ind. 367; Taylor v. Sample, 51 Ind. 423; Carr v. Brady, 64 Ind. 28. The difference, however, between the Supreme Court of Indiana and that of Iowa is this: That, while the Iowa court has consistently and persistently insisted that its construction of the statute was the correct one, the Indiana court has, by some members of that court, from- first to last doubted and criticised both the correctness and justice of the construction adopted by the Indiana court. These criticisms will be found in almost every case above cited — 373 — after Strong v. Clem. The construction, therefore, as urged by the Indiana court was continued under protest by the very court which first promulgated it, and was finally adhered to only because the matter had become stare decisis. The force of the Indiana cases is, therefore, greatly impaired if not wholly destroyed as binding authority upon the question involved here. Respondents, however, cite and seem to rely on two other cases, viz.: Hamilton v. Hirsh, 2 Wash. T. 223, 5 Pac. 215, and Morrison v. Rice, 35 Minn. 436, 29 N. W. 168. Both of/these cases, however, are readily distinguishable from the ease at bar. In the Washington case the question presented was simply whether the Legislature could abolish dower in any event. The question was precisely as it would have been in the territory of Utah had it been presented after the law of 1872 went into effect and before the dower act of 1887 was passed. No one would seriously question that dower was abrogated in Utah between 1872 and 1887. The case from Minnesota presented the following question: After the husband had conveyed, and before his death, the Legislature of Minnesota abolished dower, and, in lieu thereof, gave the surviving widow a life estate in the homestead and one-third in fee of all other real estate of which the husband died seised. We thus have a case where the dower right was abolished and a different right substituted, and this was so declared in terms. Moreover, the Minnesota Legislature limited the wife’s interest to lands of which the husband died seised, not, as in Utah, to all possessed by him during the marriage. If section 2826 were in terms like the Minnesota statute upon which the Morrison Case rests, we would have had no difficulty in agreeing to respondent’s contention on this point. Neither of the eases last cited, therefore, is in point, and thus cannot be given any effect one way or the other. Prom the foregoing it is manifest, and we -SO' hold, that the right to the widow’s interest in the lands of her deceased husband in Utah was continuous from 1887 to the present time; that the appellant has an interest in all the lands owned by the deceased and conveyed by him without her consent — 374 — during the time aforesaid; that such interest is to be measured by, and limited in, its extent to the law in force at the time of the conveyance by the husband; and that her right, not having accrued until the death of her husband on September 30, 1900, is not barred. The appellant, therefore, has a legal cause of action, and the court erred in sustaining the demurrer and in entering judgment dismissing the action. The judgment is reversed, the^ cause remanded, with direction to the court below to vacate the judgment of dismissal, reinstate the case, overrule the demurrer with leave to respondents to answer if they are so- advised, and to proceed with the case in accordance with this opinion. Costs of this appeal to be taxed to> respondents. McCARTY, C. J., and STKAUP, J., concur.