ing the doctrine of "a use upon a use," and convert into legal estates all uses that remain unexecuted in consequence of this doctrine. It may possibly be claimed that in active trusts the trustee has a vested right to the compensation which the law allows him for the performance of his duties under the trust. But the claim is manifestly untenable. If the performance of his duties is rendered unnecessary by the transfer of the legal estate to the cestui que trust, he has not earned his compensation. One cannot be said to have a vested right to earn compensation by the performance of duties which have by law become unnecessary.1

Under the English Statute of Uses, which has been adopted without change in most of our States, the separate use to a married woman cannot be executed into a legal estate, because she cannot hold the legal estate free from the control of the husband, as she can the use or equitable estate. A statute which converted such an existing estate into a legal estate, without providing for its remaining her separate property, would clearly be unconstitutional, as being in violation of vested rights. On the other hand, if a statute is passed, which declares that married women shall hold their legal estates as well as equitable estates free from the control or attaching rights of the husband, the use to a married woman which remained unexecuted by the statute, only on account of her disability to hold the legal estate independently of her husband, would at once become executed into a legal estate under the old Statute of Uses, without any express legislation to that effect.

Some additional illustrations of what are vested rights in real estate, which may not be infringed by subsequent legis

1 See Adams v. Adams, 64 N. H. 224; In re Heinze's Estate, 46 N. Y. S. 247; and contra to the text, Oviatt v. Hopkins, 46 N. Y S. 959; 20 App. Div. 168.

2 Tiedeman on Real Prop., § 469.

See Sutton v. Aiken, 62 Ga. 733; Bratton v. Massey, 15 S. C. 277; Bayer v. Cockerill, 2 Kan. 292.

lation, may be added. Where, on the seashore, the bulkhead line for wharfs and piers is once established by law, and wharfs and piers are constructed in accordance with such law; the riparian owners have acquired a vested right in the privilege accorded by the law, which may not be interfered with or restricted by subsequent legislation, except in the exercise of the right of eminent domain, and upon payment of full compensation. The same conclusion was reached in a case, where a certificate of purchase of swamp and overflowed lands was assigned to a non-resident purchaser, and a subsequent constitutional provision prohibited the grant of public lands to any but citizens and residents of the State. It was held that the rights, acquired by the assignee of the certificates of purchase, was vested, and could not be impaired by this subsequent constitutional prohibition.2

But inasmuch as the ultimate property in all lands which are held by private owners is in the State, and the private owner holds his estate subject to the superior claim of the State against the land for the payment of taxes which are levied against the land; the lien for taxes on the land takes precedence to the lien of a mortgage or judgment, even though the taxes, for which the lien may be enforced, may have been levied and have become due, after the execution of the mortgage or the filing of the judgment. This principle, in its application to general taxes, is too well settled and unquestioned to require citation of authorities.

But, in a recent case, the applicability of the principle to the lien for special assessments for public improvement has been questioned in Indiana. But the Supreme Court of that State held that a law did not interfere with the vested rights of a mortgagee, which provided that the lien

1 Classen v. Chesapeake Guano Co., 81 Md. 288. See, to the same effect, Roberts v. Brooks, 71 Fed. 914.

2 McCabe v. Goodwin, 106 Cal. 486.

for such a special assessment shall take precedence to the liens of existing mortgages.1

A State has not the power, by subsequent law, to release a grantee and his title from a condition which has been imposed by the grantors. But where the State itself imposes such a condition, it may remove it by subsequent legislation: As, where a corporation is authorized to hold land for a specified purpose only, this restriction may be removed by subsequent legislative enactments.2

A curious question of vested rights has arisen in connection with the effect on real estate values of the presence of certain institutions, public or semi-public, in a town or city. The location in a town of a State penitentiary, hospital, asylum or university, does not give to the property owners of the town any vested right in their continued location in the town, if the original location of the institution was not bartered for with the express agreement that it shall never be removed. In a recent case, the question was raised and answered in the negative, whether the property owners had a vested right in the continued location in their town of the seat of the State government. The same answer was given in the case of a sectarian college, where it was understood, but not expressly agreed to by a valid contract, that the first location of the college would be permanent. A law authorizing its removal was held not to be an interference with any vested right of the property owners of the town.

The same rule as to the power of the government to change remedies, enlarging or restricting them, or providing new remedies, without interfering with vested rights, applies to vested rights in real estate, as what controls the power of the government to regulate the enforcement of contracts in general, and which is fully set forth in a

1 Murphy v. Beard, 138 Ind. 560.

2 Gump v. Sibley, 79 Md. 165.

3 Edwards v. Lesueur, 132 Mo. 410.

4 Bryan v. Board of Education, 151 U. S. 639.

subsequent section. As long as the change is made only in the remedy for the enforcement of the right, and a reasonable opportunity is afforded for the subsequent enforcement of the right, the constitutional provision is not infringed. Thus, a recent statute in Illinois changed the requirements of the notice to quit, in order to terminate a tenancy, or to recover possession, cutting down the period of notice in some cases, and requiring a notice in some cases in which theretofore no notice was required at all. It was held that, inasmuch as the statute only effected a reasonable change in the remedies, its enforcement against existing lessors and lessees did not impair any vested right. The same conclusion was reached, in regard to laws which made tax deeds conclusive or only prima facie evidence of title. These laws were held to change or affect only the remedy. So, also, a law, which requires sixty days' notice by purchaser of tax-title of the expiration of the period of redemption, affects only the remedy and may apply to sales made prior to its enactment.*

§ 135. Interests in expectancy. — Interests in expectancy, when distinguished from vested rights, are held not to be under the protection of the constitution, and may, therefore, be modified, changed, or completely abolished by subsequent legislation. A purely contingent interest, to which there cannot be any present fixed title, cannot be considered a vested right. Where the vesting of a right depends under existing laws upon the future concurrence of certain circumstances or facts, the repeal of those laws

1 See post, § 178.

2 Woods v. Soucy, 166 Ill. 407.

• Harris v. Haisch, 29 Oreg. 562 (46 P. 141); In re Douglass, 41 La. Ann. 765; Ensign v. Barse, 107 N. Y. 329.

Coulter v. Stafford, 56 F. 564; 6 C. C. A. 18; Heinrich v. Niesz (Wash.), 47 P. 414.

Cooley Const. Lim. 440.

"A person

will operate to defeat the expectant interest. has no property, no vested interest, in any rule of the common law. Rights of property, which have been created by the common law, cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim of the legislature, unless prevented by constitutional limitations."1

For the reason that an interest in expectancy is not to be considered a vested right, it is the universally recognized rule of constitutional law that the right of inheritance of the heir presumptive is liable to be modified or entirely defeated by a legislative change in the law of descent. The law of descent varies according to the civil polity of each State, or, as Blackstone has it, it is "the creature of civil polity and juris positivi." Independently of positive law, the heir acquires no rights whatever in his ancestor's property. For public reasons, and with an incidental recognition of the moral right to the inheritance of those who stand in the most intimate blood relationship with the deceased owner, the law declares that property, which the owner leaves at his death undisposed of by grant or demise, shall descend to those named by the statute and in the order given. The expectant heir's right of inheritance rests altogether upon this command of positive law. A repeal of the law before the death of the ancestor would take away all authority for his claim of inheritance. It is, therefore, a well recognized and undisputed rule of law that the statute of descent, in force when the ancestor dies, determines the right of inheritance: nemo est hores viventis. But when the

1 Waite, Ch. J., in Munn v. Illinois, 94 U. S. 113, 134.

2 Cooley Const. Lim. 441; Story on Confi. Laws, § 484; Tiedeman on Real Prop., § 664; Potter v. Titcomb, 22 Me. 300; Miller v. Miller, 10 Met. 393; In re Lawrence, 1 Redfield Sur. Rep. 310; Smith v. Kelly, 23 Miss. 167; Marshall v. King, 24 Miss. 85; McGaughey v. Henry, 15 B. Mon. 383; Jones v. Marble, 6 Humph. 116; Price v. Talley, 10 Ala. 946; Eslava v. Farmer, 7 Ala. 543; Sturgis v. Ewing, 18 Ill. 176; Emmert v. Hays, 89 Ill. 11; Cooley Const. Lim. 441.