Noel v. Ewing
| Decision Date | 26 May 1857 |
| Parties | Noel and Wife v. Ewing and Others |
| Court | Indiana Supreme Court |
From the Allen Court of Common Pleas.
The judgment is affirmed, with costs.
John B Howe, Joseph E. McDonald, and Samuel C. Wilson, for appellants.
Robert Brackenridge, Horace P. Biddle, and Jeremiah Sullivan, for appellees.
This cause is brought here on a reserved question. The record is made up under the 347th section of the practice act. 2 R. S. p. 116.
That question is, whether, under the act regulating descents, and the apportionment of estates, approved May 14, 1852, the widow of W. G. Ewing is entitled to one-third of her husband's real estate in fee?
The facts and dates out of which this question arises, are briefly these:
William G. and Esther Ewing were married in Detroit, Michigan, in 1826. From their marriage till 1854, they resided in Fort Wayne. In the meantime, Mr. Ewing accumulated a large landed estate. In contemplation of a journey, he made his will, dated August, 1849, disposing of all his property. Among other things, testamentary provision was made for the widow, in lieu of dower. The particular land in controversy was purchased in 1830. He died July, 1854, without children or the descendants of children. The will of 1849 was admitted to probate August 10th, 1854. In January, 1855, Mrs. Ewing filed her renunciation under the will, and her election to take under the statute. 1 R. S. p. 250, secs. 17, 27, 35.
Mrs. Ewing claims that, by the law in force at her husband's death, she is entitled to one-third of his real estate in fee. The devisees insist that she is entitled only to the dower allowed by the statute in force at the time the property was acquired; and that it was not competent for the legislature to substitute a fee of one-third, instead of dower, in any case where the marriage and seizin transpired prior to the taking effect of the new law. In brief, the contest is this: Where the law of the marriage or seizin and the law of the husband's death conflict, which shall govern?
The Court below decided that Mrs. Ewing was entitled to one-third in fee. The devisees appeal.
To elucidate the question, it will be proper to inquire--
1. What has the legislature enacted in the premises? and--
2. Was it competent for the legislature to so enact?
Many other points, intimately connected with the main question will be noticed, incidentally, as they arise.
1. What has been enacted? The provisions of the law will be found in 1 R. S. p. 250. The first fourteen sections regulate descent under various contingencies. The fifteenth section provides that every rule of descent and distribution shall be subordinate to the provisions made in behalf of the surviving husband or wife.
The sixteenth section is thus expressed: "Tenancies by curtesy and in dower are hereby abolished."
By the seventeenth section, "If a husband die, testate or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors."
The rights of the widow are further extended by the twenty-seventh section, to all the lands of which the husband was seized at any time during the coverture, and in the conveyance of which she may not have joined.
These several sections are to be taken together, and in connection with the saving clause of the repealing act, are to be construed as one entire provision.
The act itself provided that it should take effect on the first day of August, 1852. 1 R. S. p. 255. But as it was not published on that day, agreeably to the constitution (art. 4, sec. 28), and no emergency was declared (Hendrickson v. Hendrickson, 7 Ind. 13), it did not take effect till May 6, 1853. From that day the new act speaks.
Dower at common law was in substance our own, and the only species to which we need allude. Its object was the maintenance of the widow, and the nurture and education of the children. Co. Lit. 30, b.--1 Cruise, tit. Dower, sec. 6.--2 Black. Com. 130.--1 Toml. L. D. 587.-- Rank v. Hanna 6 Ind. 20. Upon the marriage and seizin, dower was said to be inchoate; on the death of the husband, consummate.
Keeping the purpose of dower in view, let us resume the inquiry--What has been enacted?
Primarily, the act itself is its own best interpreter. The best evidence of what the law givers intended, is what they have said. The language of the sixteenth section is not that of a legal expert, nor is it remarkably perspicuous. Indeed, it may be doubted whether the Courts can give it any meaning or effect; for tenancies in dower, which it assumes to abolish, can only exist where the dower has become consummate, and is assigned. While inchoate, it is a mere claim--a contingent expectancy. Lawrence v. Miller, 2 N.Y. 245; Blain v. Harrison, 11 Ill. 384. Even when consummate by the death of the husband, she is still not a tenant in dower till assignment. She has no right of entry; for, until assigned, she may not know on what particular land to enter. The sixteenth section assumes that dower consummate actually assigned and the widow in possession, should be and is abolished.
But Courts will not presume that the legislature intended such an absurdity. When the context and the repealing act are considered, the purpose of the legislature is greatly relieved from obscurity. This mode of construction is in accordance with the statutory rule. 2 R. S. p. 339. The intention seems to be to leave dower consummate untouched, and instead of dower inchoate, to substitute a third in fee, where it can be done consistently with the rights of third parties. 1 R. S. p. 250. Thus, the law for the assignment of dower shall continue in force, etc. 1 R. S. p. 431, sec. 4. The significant word assignment, is the key to the intent. When dower becomes consummate, it only remains to be assigned. For the benefit of those widows whose dower had become vested--consummate by the death of the husband, but not assigned-- was the old law kept alive. Thus is full effect given to the substantial provisions of both acts, so far as applicable to this case.
That the law was intended to operate upon existing marriages, there can be no doubt. The first fourteen sections make death the contingency upon which the act is to apply. The subsequent provisions relate to the surviving widow or widower. Here, also, death is the future contingency. The seventeenth, eighteenth, and twentieth sections each begin--"If a husband die testate or intestate," etc. So the twenty-third, twenty-fourth and twenty-fifth sections--"If a husband or wife die," etc. What is intended? Does it mean only such as become husbands after the law takes effect? Or does it include all husbands, then existing or to become such thereafter? Clearly the latter. All who are husbands at their death, without regard to the date of the marriage, are included. Husbands, as a class, are embraced in the language used. So with the wife. It includes, in brief, all those who sustained the relation of husband or wife on the 6th of May, 1853, or might sustain that relation in future. Upon the dissolution of the marriage by death, the law applies.
In vindication of the statute, it should be observed that if she has the third of his real estate at his death, he has the same share of her realty at her death. Thus, the rights, which by that event are perfected to the survivor, are equal.
Had it been intended to except persons married before the law took effect, that intention could have been easily expressed. That such exception was not made, leaves the strongest presumption that it was not intended. Dwar. on Stat. 717.
It is, therefore, clear, that the legislature intended the statute to operate on marriages existing when the law took effect.
It is equally clear that the law is not retrospective. It establishes the death of one of the parties as the future event on which it is to operate. The relations and rights which had been determined by death prior to May 6, 1853, are not disturbed. They are expressly saved, and provision made to have them perfected. 1 R. S. p. 431, sec. 4. It simply determines the legal effect of death, as a future event, on the rights of the survivor.
In the exposition of these several acts, we can attach no importance to the term, vested, as found in some of the reports. It is confessedly used improperly by one of the judges in Osgood v. Franklin, 2 Johns. Ch. 1, and Lawrence v. Miller, 2 N.Y. 245, in opposition to other members of the bench. We must presume in favor of the legislature that, if they consulted books at all, they were better acquainted with the definitions of Blackstone, than with inaccuracies of state judges. Any other view of it, would greatly embarrass the Court and the legislature, and contravene the statute. 2 R. S. p. 339.
In the repealing act, the words limit the vested rights of dower to such as can be assigned. The wife cannot demand an assignment of dower inchoate. The widow can, of dower consummate. Dower inchoate does not import a vested estate; dower consummate does. For some purpose--for instance, as against the husband, his creditors, or vendees--the inchoate rights of the wife have always been protected. The husband cannot dispose of her inchoate dower; nor can his creditors subject it to execution. But it is not protected as a vested right against the operation of a general law providing a substitute--a point to be presently examined.
It is not necessary, in this connection, to say what the sixteenth section abolishes, or whether it abolishes anything. All consideration of creditors and purchasers, prior to May 6 1853, is also left out; because no such disturbing element enters into the case at bar. We have nothing to do with...
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