always revoke before an interest is perfected in the donee." 1 And Chancellor Kent, in speaking of retrospective statutes, says that while such a statute, "affecting and changing vested rights, is very generally considered in this country as founded on unconstitutional principles, and consequently inoperative and void," yet that "this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy by curing defects and adding to the means of enfor cing existing obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights." 2

And it is because a mere expectation of property in the future is not considered a vested right, that the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner. No one is heir to the living; and the heir presumptive has no other reason to rely upon succeeding to the property than the promise held out by the statute of descents. But this promise is no more than a declaration of the legislature as to its present view of public policy as regards the proper order of succession,- a view which may at any time change, and then the promise may properly be withdrawn, and a new course of descent be declared. The expectation is not property; it cannot be sold or mortgaged; it is not subject to debts; and it is not in any manner taken notice of by the law until the moment of the ancestor's death, when the statute of descents comes in, and for reasons of general public policy transfers the estate to persons occupying particular relations to the deceased in preference to all others. It is not until that moment that there is any vested right in the person who becomes heir, to be protected by the Constitution. An anticipated interest in property cannot be said to be vested in any person so long as the owner of the interest in possession has full power, by virtue of his ownership, to cut off the expectant right by grant or devise.3

1 Merrill v. Sherburne, 1 N. H. 199, 213; s. c. 8 Am. Dec. 52. See Rich v. Flanders, 39 N. H. 304. And cases ante, p. 343, note 2.

21 Kent, Com. 455. See Briggs v. Hubbard, 19 Vt. 86; Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; Baugher v. Nelson, 9 Gill, 299; Gilman v. Cutts,

23 N. H. 376, 382; Foule v. Mann, 53 Iowa, 42.

8 In re Lawrence, 1 Redfield, Sur. Rep. 310. But after property has once vested under the laws of descent, it cannot be devested by any change in those laws. Norman v. Heist, 5 W. & S. 171. And the right to change the law of descents in

If this be so, the nature of estates must, to a certain extent, be subject to legislative control and modification. In this country estates tail have been very generally changed into estates in feesimple, by statutes the validity of which is not disputed. Such statutes operate to increase and render more valuable the interest which the tenant in tail possesses, and are not therefore open to objection by him.3 But no other person in these cases has any vested right, either in possession or expectancy, to be affected by such change; and the expectation of the heir presumptive must be subject to the same control as in other cases.4

The cases of rights in property to result from the marriage relation must be referred to the same principle. At the common law the husband immediately on the marriage succeeded to certain rights in the real and personal estate which the wife then possessed. These rights became vested rights at once, and any subsequent alteration in the law could not take them away. But other interests were merely in expectancy. He could have a right as tenant by the courtesy initiate in the wife's estates of inheritance the moment a child was born of the marriage, who might by possibility become heir to such estates. This right would be property, subject to conveyance and to be taken for debts; and must therefore be regarded as a vested right, no more subject to legislative interference than other expectant interests which have ceased to be mere contingencies and become fixed. But while this interest remains in expectancy merely, that is to say, until it becomes initiate, the legislature must have full right to modify or even to abolish it." And the same rule will

the case of the estate of a person named without his consent being had, was denied in Beall v. Beall, 8 Ga. 210. See post, pp. 465, 466, and notes.

1 Smith on Stat. and Const. Construction, 412.

2 De Mill v. Lockwood, 3 Blatch. 56. The legislature may by special act confirm a conveyance in fee simple by a tenant in tail. Comstock v. Gay, 51 Conn.

45.

8 On the same ground it has been held in Massachusetts that statutes converting existing estates in joint tenancy into estates in common were unobjectionable. They did not impair vested rights, but rendered the tenure more beneficial. Holbrook v. Finney, 4 Mass. 565; s. c. 3 Am. Dec. 243; Miller v. Miller, 16 Mass. 59; Annable v. Patch, 3 Pick. 360; Burghardt v. Turner, 12 Pick. 533. Moreover, such statutes do no more than either ten

ant at the common law has a right to do, by conveying his interest to a stranger. See Bombaugh v. Bombaugh, 11 S. & R. 192; Wildes v. Vanvoorhis, 15 Gray, 139.

4 See 1 Washb. Real Pr. 81-84 and notes. The exception to this statement, if any, must be the case of tenant in tail after possibility of issue extinct; where the estate of the tenant has ceased to be an inheritance, and a reversionary right has become vested.

5 Westervelt v. Gregg, 12 N. Y. 202. See Mr. Bishop's criticism of this casewhich, however, does not reach the general principle above stated — in 2 Bishop, Law of Married Women, § 46, and note. Rights under an ante-nuptial contract, which become vested by the marriage, cannot be impaired by subsequent legis lation. Desnoyer v. Jordan, 27 Minn. 295.

6 Hathon v. Lyon, 2 Mich. 93; Tong

apply to the case of dower; though the difference in the requisites of the two estates are such that the inchoate right to dower does not become property, or anything more than a mere expectancy at any time before it is consummated by the husband's death. In neither of these cases does the marriage alone give a

v. Marvin, 15 Mich. 60. And see the cases cited in the next note. The right of a tenant by the courtesy initiate is vested, and it cannot be taken away to the injury of the husband's creditors. Wyatt v. Smith, 25 W. Va. 813. See Hershizer v. Florence, 39 Ohio St. 516. But see to the contrary, Breeding v. Davis, 77 Va. 639; Alexander v. Alexander, 7 S. E. Rep. 335 (Va.).

1 When dower is duly assigned it becomes a right not to be devested by subsequent legislation. Talbot v. Talbot, 14 R. I. 57. The law in force at the death of the husband is the measure of the right of the widow to dower. Noel v. Ewing, 9 Ind. 37; May v. Fletcher, 40 Ind. 575; Lucas v. Sawyer, 17 Iowa, 517; Sturdevant v. Norris, 30 Iowa, 65; Melizet's Appeal, 17 Pa. St. 449; Barbour v. Barbour, 46 Me. 9; Magee v. Young, 40 Miss. 164; Bates v. McDowell, 58 Miss. 815; Walker v. Deaver, 5 Mo. App. 139; Guerin v. Moore, 25 Minn. 462; Morrison v. Rice, 35 Minn. 436; Ware r. Owens 42 Ala. 212; Pratt v. Tefft, 14 Mich. 191; Bennett v. Harms, 51 Wis. 251. But if we apply this rule universally, we shall run into some absurdities, and most certainly in some cases encounter difficulties which will prove insurmountable. Suppose the land has been sold by the hus band without relinquishment of dower, and the dower right is afterwards by statute enlarged, will the wife obtain the enlarged dower at the expense of the purchaser? Or suppose it is diminished; will the purchaser thereby acquire an enlarged estate which he never bought or paid for? These are important questions, and the authorities furnish very uncertain and unsatisfactory answers to them. In Illinois it is held that though the estate is contingent, the right to dower, when marriage and seisin unite, is vested and absolute, and is as completely beyond legislative control as is the principal estate. Russell v. Rumsey, 35 Ill. 362; Steele v. Gellatly, 41 Ill. 39. See Lawrence v. Miller, 2 N. Y. 245. But it

is also held that after marriage a new
right corresponding to dower may be con-
ferred upon the husband, and that his
homestead right depends on the law
in force at the wife's death. Henson v.
Moore, 104 Ill. 403. In North Carolina
before 1867, the wife had dower only in
the lands of which the husband died
seised; the statute then restored the
common-law right to dower. Held to be
inapplicable to lands which the husband
had previously acquired. Sutton v. As-
ken, 66 N. C. 172; s. c. 8 Am. Rep. 500;
Hunting v. Johnson, 66 N. C. 189; Jen-
kins v. Jenkins, 82 N. C. 202; O'Kelly v.
Williams, 84 N. C. 281. In Iowa it is
held that when the law of dower is
changed after the husband has conveyed
lands subject to the inchoate right, the
dower is to be measured by the law in
force when the conveyance was made.
Davis v. O'Ferrall, 4 Greene (Iowa), 168;
Young v. Wolcott, 1 Iowa, 174; O'Fer-
rall v. Simplot, 4 Iowa, 381; Moore v.
Kent, 37 Iowa, 20; Craven v. Winter, 38
Iowa, 471. In Indiana, on the other hand,
a statute enlarging the right of dower to
one-third of the land in fee simple was so
applied as to deprive the widow, in cases
where the husband had previously con-
veyed, of both the statutory dower and
the dower at the common law, thereby
enlarging the estate of the purchaser.
Strong v. Clem, 12 Ind. 37; Logan v.
Walton, 12 Ind. 839; Bowen v. Preston,
48 Ind. 367; Taylor v. Sample, 51 Ind.
423. See May v. Fletcher, 40 Ind. 575.
A provision that upon a judicial sale of
the husband's property the inchoate dower
right shall vest does not apply to a me-
chanic's lien resting on the whole prop-
erty before the act passed.
Shepard, 107 Ind. 417. In Missouri it
is held that the widow takes dower ac-
cording to the law in force at the hus-
band's death, except as against those who
had previously acquired specific rights
in the estate, and as to them her right
must depend on the law in force at the
Tennedy r.
time their right

Buser v.

vested right. It gives only a capacity to acquire a right. The same remark may be made regarding the husband's expectant interest in the after-acquired personalty of the wife; it is subject to any changes in the law made before his right becomes vested by the acquisition.1

Change of Remedies.

Again: the right to a particular remedy is not a vested right. This is the general rule; and the exceptions are of those peculiar cases in which the remedy is part of the right itself.2 As a general rule, every State has complete control over the remedies which it offers to suitors in its courts.3 It may abolish one class of courts and create another. It may give a new and additional remedy for a right or equity already in existence. And it may

abolish old remedies and substitute new; or even without substituting any, if a reasonable remedy still remains. If a statute providing a remedy is repealed while proceedings are pending, such proceedings will be thereby determined, unless the legislature shall otherwise provide; 2 and if it be amended instead of repealed, the judgment pronounced in such proceedings must be according to the law as it then stands. And any rule or regulation in regard to the remedy which does not, under pretence of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation.4 But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference.5 Where it springs from contract, or from the principles of the common law, it is not competent for the legislature to take it away.

In Bolton v. Johns, 5 Pa. St. 145, the extreme ground was taken that the legislature might give a lien on property for a prior debt, where no contract would be violated in doing so. In Towle v. Eastern Railroad, 18 N. H. 546, the power of the legislature to give retrospectively a remedy for consequential damages caused by the taking of property for a public use was denied. On the ground that the remedy only is affected, a judgment against a principal on an existing bond may be made conclusive on the surety. Pickett v. Boyd, 11 Lea, 498. So a resale on mortgage foreclosure, if the purchase price is inadequate, may be allowed as to an existing mortgage: Chaffe v. Aaron, 62 Miss. 29; and a foreclosure of a tax lien, if the title fails. Schoenheit v. Nelson, 16 Neb. 235.

1 Stocking v. Hunt, 3 Denio, 274; Van Rensselaer v. Read, 26 N. Y. 558; Lennon v. New York, 55 N. Y. 361; Parker v. Shannohouse, 1 Phil. (N. C.) 209. An existing remedy may be modified and the modified remedy made applicable to existing rights. Phelps' Appeal, 98 Pa. St. 546.

2 Bank of Hamilton v. Dudley, 2 Pet. 492; Ludlow v. Johnson, 3 Ohio, 553; s. c. 17 Am. Dec. 609; Yeaton v. United States, 5 Cranch, 281; Schooner Rachel v. United States, 6 Cranch, 329. If an act is repealed without any saving of rights, no judgment can afterwards be taken under it. State v. Passaic, 36 N. J. 382; Menard County v. Kincaid, 71 Ill.

And every man is entitled to a

587; Musgrove v. Vicksburg, &c. R. R. Co., 50 Miss. 677; Abbott v. Commonwealth, 8 Watts, 517; s. c. 34 Am. Dec. 492. But it is well said in Pennsylvania that before a statute should be construed to take away the remedy for a prior injury, it should clearly appear that it embraces the very case. Chalker v. Ives, 55 Pa. St. 81. And see Newsom v. Greenwood, 4 Oreg. 119.

8 See cases cited in last note. Also Commonwealth v. Duane, 1 Binney, 601; s. c. 2 Am. Dec. 497; United States v. Passmore, 4 Dall. 372; Patterson v. Philbrook, 9 Mass. 151; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 22 N. Y. 95; State v. Daley, 29 Conn. 272; Rathbun v. Wheeler, 29 Ind. 601; State v. Norwood, 12 Md. 195; Bristol v. Supervisors, &c., 20 Mich. 95; Sumner v. Miller, 64 N. C. 688.

4 See ante, pp. 347-355; Lennon v. New York, 55 N. Y. 361. The right to a particular mode of procedure is not a vested right. A statute allowing attor ney's fees may affect pending causes. Drake v. Jordan, 73 Iowa, 707.

5 It is not incompetent, however, to compel the party instituting a suit to pay taxes on the legal process as a condition. Harrison v. Willis, 7 Heisk. 35; s. c. 19 Am. Rep. 604.

6 Dash v. Van Kleeck, 7 Johns. 477; s. c. 5 Am. Dec. 291; Streubel v. Milwaukee & M. R. R. Co., 12 Wis. 67; Clark v. Clark, 10 N. H. 380; Westervelt