Summary
In Hinton v. Hinton, 61 N.C. 410, this act was held to cover the act (Rev. Code, chap. 118, sec. 1. 1) by which widows were limited to six months after probate of the husband's will, within which to dissent therefrom, and the plaintiff was allowed to have the benefit of a dissent made after that time.
Summary of this case from Donoho v. PattersonOpinion
(January Term, 1868.)
1. The act of 1784 (R. C., ch. 118, sec. 1), giving widows of testators six months in which to dissent from wills, is not a statute conferring a right of dower, but a `statute of limitations' upon that right, as it existed at common law.
2. The act of February, 1866, giving widows further time for dissenting, is constitutional, and applies to a case in which at its passage the widow was barred under the act of 1784.
3. All retroactive legislation is not unconstitutional.
4. Retroactive legislation is competent to affect remedies, but not to affect rights.
( Mitchener v. Atkinson Phil. Eq. 23; Morris v. Avery, ante, 238; Neely v. Craige, ante, 187; Phillips v. Cameron, 3 Jon., 390, cited and approved.)
PETITION for dower, heard by Fowle, J., at Fall Term, 1867, of the Superior Court of WAKE.
Moore, contra.
The petition had been filed at May Term, 1866, of the County Court of Wake, and alleged that the husband of the petitioner had died previously to November Term, 1864, leaving a will which was proved at that term, and that she had dissented at the term at which the petition was filed, etc., etc.
The answer of the heirs (infants) relied upon the fact that the husband's will had been proved (with previous notice to her) as stated in the petition, for a bar to her power to dissent and claim dower, etc.
Upon the case being carried by appeal into the Superior Court, his Honor dismissed the petition, and the petitioner appealed to the Supreme Court.
Haywood, for petitioner, cited and commented upon the statutes contained in Rev. Code, ch. 118, sec. 1; Acts of 1861 (11 Sept.), ch. 4, sec. 18; 1863 (16 Feb.), ch. 34, sec. 1; 1866 (21 Feb.), ch. 50, sec. 1; 1866 (22 Feb.), ch. 53, secs. 1, 2, 3; Ordinance of 23 June, 1866 (411) (ch. 19, sec. 20), and of 16 June (ch. 26, secs. 1, 2, 3), and upon Morris v. Avery, ante, 238; Neely v. Craige, ante, 187; Frost v. Etheridge, 1 Dev., 30; Pettijohn v. Beasley, 1 D. B., 254; Craven v. Craven, 2 Dev. Eq., 338, and Mitchener v. Atkinson, Phil. Eq., 23.
The act of 22 February, 1866, under which petitioner claims, divests vested rights; for, under the law which exists at a man's dissolution, death fixes the rights of the survivors; and subsequent legislation affecting those rights, disseizes some of them "of his freehold, liberties and privileges," or deprives him of his "property." The rights of heirs or devisees just after their ancestor's or testator's death, are conferred by law, and are as if they existed by a special grant from the State. The State, therefore, cannot take them away or diminish them in favor of another citizen.
In maintaining these propositions the following authorities were relied upon: 2 Bl. Com., 199 et seq.; Fletcher v. Peck, 2 Curt., 328; Pawlet v. Clarke, 3 Curt., 358; Terret v. Taylor, ibid., 259; Williamson v. Leland, 8 Curt., 228; University v. Foy, 2 Hay., 310; Allen v. Peden, 2 Repos., 638; Robeson v. Barfield, 2 Mur., 390; Hoke v. Henderson, 4 Dev., 1; Stanmire v. Welch, 3 Jon., 214; S. v. Glenn, 7 Jon., 324; Smith v. Whedbee, 1 Dev., 160; Caldwell v. Black, 5 Ire., 463; Burgwyn v. Devereux, 1 Ire., 583.
If a legacy be given to A., provided he applies for it in six months after the death of the testator, otherwise it shall go to B., and A. does not apply within the time, the title becomes vested in B., and the Legislature has no power to extend the time; for the reason that the testator, by the words of condition and the limitation over to B., makes a compliance with the condition a part of the essence of the gift, and being a condition precedent, it is not saved, even (412) although the condition becomes impossible by the act of God, or by the act of law, and the title of B. is absolute.
But we do not think this principle applies to the right of dower, or that that right is created by the act of 1784, with a condition precedent that when a husband by his will makes a provision for his wife, she shall within six months, after the probate of the will, enter her dissent to the provision made for her, and that a compliance with this condition is made a part of the essence of the right of dower. On the contrary, we are entirely satisfied that the right existed at common law, and was not created by the act of 1784, and that the effect of the act is to prescribe a limitation in respect to the time in which the right shall be claimed, when the husband has by will made a provision for the wife; in other words, it is a "statute of limitations," which in such cases bars the right to a writ of dower, but does not extinguish the preexisting common-law right of dower.
The right of the widow of every freeholder to have dower in all of the lands and tenements, of which her husband was seized at any time during the coverture, of an estate to which she might by possibility have had issue capable of inheriting, not only existed at common law, but it was paramount to all other rights, save those of the crown. Dower attached at the time of the marriage. It was superior to the title of the heir or devisee. It was superior to the claim of creditors, or of purchasers for value. It was superior to the right of the lord claiming by escheat and by the statute 6 Edward VI it is made superior to the right of the crown by forfeiture, except in the case of high treason. There was no statute of limitations in respect to the right of dower, and after the "statute of uses" it was necessary to pass the "statute of jointures" to prevent widows from keeping their jointures, and (413) also claiming their common-law dower.
In the course of time courts of equity assumed jurisdiction to put widows to their election, when provision was made for them by the will of husbands and a claim to dower would disappoint the other provisions of the will, either to give up the right of dower or to release their right under the will. This doctrine of election is put on the ground that it is against conscience to claim under the will and also against it; but there is no limitation as to time, and the widow is entitled to a reference as to the condition of the estate in order to aid her in making the election. See Mitchener v. Atkinson, Phil. Eq., 23.
It was found in this State that the right of the widow to claim her common-law dower, especially after the estate had been settled up, caused great inconvenience, as well to creditors as to devisees and legatees, and for this reason, and also to avoid the expense of resorting to courts of equity, it was provided by the act of 1784 that a dissent should be entered within six months after probate, or the right of dower should be barred. This statute answered a good purpose, and there was no objection to it in ordinary times, treating it as a "statute of limitations," for, during the six months, the widow had ample opportunity to inform herself as to the condition of the estate of her husband, and, if she found that she was not as well provided for under the will as by the law, or that her husband's estate was likely to be insolvent, she could without any reproach to his memory, prefer to take by law, as her dower was not subject to debts. But during the extraordinary times which we have had since May, 1861, this statute of limitations, if enforced, would bear with extreme rigor upon widows. There has been an interruption of the courts, and such confusion generally, that no one could make a safe estimate (414) in regard to the solvency of estates. Moved by considerations of this nature, the Legislature in 1863 passed an act providing "that, in computations of time for the purpose of any statute limiting any action, or any right or rights, or making any presumption as to payment of bonds, or satisfaction or abandonment of any equity, etc., the time which had elapsed since 20 May, 1861, and which should elapse up to the close of the war, shall not be counted"; and in 1866, after the close of the war, it passed an act providing that in all such cases time should not be counted up to 1 January, 1867. We are inclined to the opinion, from the general wording of these two acts, and the obvious policy of legislation during the war and the troubled state of things which succeeded it, that the statute limiting the time in which widows were required to enter a dissent, comes within their operation, and that time should not be counted from 20 May, 1861, up to 1 January, 1867, in respect to widows who seek to set up a right of dower at common law; see Morris v. Avery, ante, 238, as to the abatement of suits; Neely v. Craige, ante, 187, as to dormant judgments, by which it is settled that such ordinances and statutes, during the war and since, "confer no new rights, but preserve existing ones." We are, however, relieved from the necessity of declaring an opinion upon that question of construction, for the Legislature in February, 1866, out of abundance of caution, passed an act by which, in express words, widows are allowed further time to dissent, and which embraces our case; and in June, 1866, the Convention by an ordinance gives further time for a widow to dissent, notwithstanding she may have qualified and acted as the executrix of her husband, thus by a plain and necessary implication recognizing and ratifying the act of February, 1866; for, if a widow who has qualified and acted as executrix has a right to enter her dissent and further time is given to her, a fortiori, such further time is given to widows who have not that objection to encounter.
So we take it to be clear that the act of 1784 was a "statute (415) of limitations," barring the right of dower, and that the act of February, 1866, expressly embraces our case, and will proceed to the last point: Did the Legislature have power to pass the act? putting out of view the effect of the ordinance of June, 1866, to prevent complication.
It is said the Legislature has not the power to interfere with "vested rights," and take property from one and give it to another! That is true; but these devisees took the land subject to the widow's common-law right of dower. The act of 1784, consulting public policy, limited the time in which widows should set up claim to dower. The power of the Legislature to do so is unquestionable. The act of February, 1866, consulting public policy, provides that the time from 20 May, 1861, up to the passage of the act, shall not be counted. Is not the power of the Legislature to do so equally unquestionable? There is in this case no interference with vested rights. The effect of the statute is not to take from the devisee his property and give it to the widow, but merely to take from him a right conferred by the former statute, to bar the widow's writ of dower, by suspending the operation of that statute for a given time; in other words, it affects the remedy and not the right of property. The power of the Legislature to pass retroactive statutes affecting remedies is settled. Suppose a simple contract debt created in 1859. In 1862 the right of action was barred by the general statute of limitations, which did not extinguish the debt, but simply barred the right of action. Then comes the act of 1863, providing that the time from 20 May, 1861, shall not be counted. Can the debtor object that this deprives him of a vested right? Surely not. It only takes from him the privilege of claiming the benefit of a former statute, the operation of which is for a season suspended.
So the act of 1784 does not extinguish the widow's common-law (416) right of dower, but simply bars her right of a action, unless she enters her dissent within six months and makes claim to her right of dower within that time. Then comes the act of February, 1866, providing that she shall have further time. Can the devisee object that this deprives him of his land? Surely not. It only takes from him the privilege of claiming the benefit of a former statute, whereby to bar the widow's common-law right.
In Phillips v. Cameron, 3 Jon., 390, the power of the Legislature to pass a retroactive statute is assumed, when the intention to give it a retroactive operation is plainly expressed, and that case went off on the ground that there such was not the intention. In our case the statute immediately bearing on it, although and the statutes referred to, express the intention as plainly as words can do it.
Judgment reversed. This opinion will be certified to the end, etc.
PER CURIAM. Ordered accordingly.
Cited: Blankenship v. McMahon, 63 N.C. 181; Johnson v. Winslow, ibid., 553; N.C. Donoho v. Patterson, 70 N.C. 655; Benbow v. Robbins, 71 N.C. 339; Pearsall v. Kenan, 79 N.C. 473; Durham v. Speeke, 82 N.C. 91; R. R. v. Commissioners, ibid., 266; Tabor v. Ward, 83 N.C. 294; Whitehurst v. Dey, 90 N.C. 545; Jones v. Arrington, 91 N.C. 130; Yorkly v. Stinson, 97 N.C. 240; Lowe v. Harris, 112 N.C. 501; Gillespie v. Allison, 115 N.C. 548; Dunn v. Beaman, 126 N.C. 770.
(417)