Richards v. Bellingham Bay Land Co.

• Decision Date: 16 January 1893
• Docket Number: 58.
• Citation: 54 F. 209
• Parties: RICHARDS v. BELLINGHAM BAY LAND CO.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F. 209

RICHARDS v. BELLINGHAM BAY LAND CO.

No. 58.

United States Court of Appeals, Ninth Circuit.

January 16, 1893

Alfred L. Black and E. B. Leaming, for appellant.

William Lair Hill, for respondent.

Before McKENNA, Circuit Judge, and KNOWLES and HAWLEY, District judges.

KNOWLES District Judge.

Plaintiff instituted an action in equity in the United States circuit court for the district of Washington, asking for an assignment of dower in certain lands held by the defendant on Bellingham bay, state of Washington, the same being known as the 'Morrison Donation Claim.' The bill of complaint sets forth that one Charles E. Richards, in his lifetime, was the husband of plaintiff, and that they continued to live together and cohabit as such up to the time of his death, on the 19th day of May, 1889; that prior to said marriage said Charles E. Richards became seised of an estate in fee in said lands; that subsequent to said marriage he sold the same to one Robert H. Vance; that plaintiff did not join in the conveyance of said lands to said Vance, and has never in any manner relinquished her right of dower therein and that she is now the widow of said Richards. As it appears from the bill that the said defendant now holds the legal title in fee to said lands, the court is led to infer that it must have derived the same in some manner through mesne conveyances from said Vance. The defendant demurred to this bill on the ground that it appears by plaintiff's own showing therein 'that she is not entitled to the relief prayed by the said bill, or to any relief in the premises ' The court sustained this demurrer, and entered in words as follows:

'That it be adjudged and decreed that said complainant is not entitled to relief upon or on account of the matters alleged in her said bill of complaint, and that this cause be and is dismissed, at the costs of the said complainant, Henrietta C. Richards.'

From this judgment plaintiff appealed to this court.

The question presented is as to whether the bill states facts sufficient to show that plaintiff is entitled to dower in the land described, under the laws of the territory of Washington, at the date of her husband's death. The territory enacted several statutes bearing upon the question of dower. I do not think it necessary to go into the history of this legislation. Suffice it to say that at the time of the death of Richards the following statutes existed:

'The provisions of section fourteen hundred and eighty-(one) of this volume of General Statutes, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents, and take the place of tenancy in dower and tenancy by the curtesy, which are hereby abolished.' 1 Hill's Ann. St. & Codes Wash. Sec. 1482.

'No estate is allowed the husband, as tenant by curtesy, upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. ' Id. Sec. 1405.

The first of these statutes seems to have been one of the provisions of an act of the legislative assembly entitled 'An act to regulate the descent of real estate, and the distribution of personal property. ' The latter was a part of an act defining the property rights of husband and wife. There was a statute of said territory upon the subject of dower, which was substantially declaratory of the common law upon that subject existing at the time of the marriage of plaintiff with said Charles E. Richards, and at the time of the conveyance of said lands to Vance. Appellant urges that the law upon the subject of dower at the date of the alienation of said lands to Vance should control, and not the law upon that subject at the date of the death of Richards. This presents for consideration the nature of dower rights. In the case of Dolton v. Cain, 14 Wall. 472, in speaking of the wife's right of dower in the estate of her husband, the supreme court said, 'she had no present title to the land, either legal or equitable. ' Washburn, in his work on Real Property, (volume 1, p. 301), says of a dower right during the life of the husband, 'Nor is her right, in any sense, an interest in real estate, nor property of which value can be predicated. ' To the same effect is the rule expressed in Moore v. City of New York, 8 N.Y. 110. In the case of Randall v. Kreiger, 23 Wall. 137, the supreme court after speaking of the different kinds of dower known to the common law, and the abolition of two of them by St. 3 & 4 of Wm. Iv., c. 105, said:

'The dower given by law is the only kind which has since existed in England, and it is believed to be the only kind which ever obtained in this country. During the life of the husband the right is a mere expectancy or possibility. In that condition of things the lawmaking power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave may increase, diminish, or otherwise alter it, or wholly take it away.'

Other authorities might be cited to the same effect.

We find from these that dower is not an estate in land, vested or otherwise. It is a right without value, unless by some modern methods a possibility may be valued. A possibility or contingency is not an estate. It may be affirmed generally where a right is given by law, until that right becomes vested in some way in property the law may be changed or repealed, and the right taken away. Suth. St. Const. Secs 163, 164; People v. Livingston, 6 Wend. 526; Van Inwagen v. City of Chicago, 61 Ill. 31; Marks v. Borum, 25 Amer.Rep. 764. This rule is enforced in the cases of Frisbie v. Whitney, 9 Wall. 187; Rector v. Ashley, 6 Wall. 142. Dower does not become a vested right in the wife until the death of her husband. A possibility of dower is no vested right in the estate of dower, or anything the law recognizes as property. The legislative power of the territory of Washington had the right 'to wholly take it away' then, to use the language of the supreme court. The cases cited from the decisions of the supreme court of Iowa (Davis v. O'Ferrall v. Simplot, 4 Iowa, 381-400; Pierce v. O'Brien, 29 F. 402) are not in point upon the issue here presented. In the first three of these, parties purchased real estate when there was a possibility, under the laws of the state, that there might be dower in the same to the extent of a life estate of one third thereof. Burdened with this possibility, the title to this real estate became vested in the purchaser. The court held that it was not competent to enlarge this dower possibility to an estate in fee, to the extent of one third thereof, or more. There can be no doubt of the correctness of these decisions. If they did maintain the rule contended for by appellants, they would be contrary to the weight of authority upon this subject. The rule is that dower must be measured and allotted according to the law at the time of the death of the husband, and not, as contended,...