ancestor dies, and under the then existing statute of descent, the property is cast upon a particular individual as heir, the right of property becomes a vested right, and like all other vested rights, however acquired, it cannot be affected by subsequent legislation.

Of the same character are the rights which the husband and wife acquire in the real and other property of each other, by virtue of the marital relation existing between them. By rule of positive law, for more or less public reasons, these rights are granted. They do not depend upon contract, and do not emanate from the marriage contract. The acquisition of these rights is merely an incident of the marriage, made so by law. If, therefore, the law upon which the claim to these marital rights of property rests, is repealed before the rights become vested, the expectant right would be defeated, because there would be no foundation for the claim of an existing right. The common law provided that the husband on his marriage would acquire an estate during coverture in all of the lands of the wife which she then owned, and, from the time of purchase, in all other lands which she may subsequently acquire. Until she acquires a title to the lands by purchase or otherwise, the right to an estate in the lands is merely expectant. A law, which provides that married women shall hold their lands and other property free from

1 "Dower is not the result of contract but a positive institution of the State, founded on reasons of public policy. To entitle to dower, it is true, there must be a marriage, which our law regards in some respects as a civil contract. So the death and seisin of lands by the husband during the coverture are also necessary to establish a right to this estate. But they are not embraced by, nor are they the subjects of the marriage contract. The estate is by law made an incident of the marriage relation and the death and seisin of one of the parties are conditions on which it comes into existence. It stands, like an estate by the curtesy, on the foundations of positive law." Moore v. City of New York, 8 N. Y. 110.

? Tiedeman on Real Prop., § 90; 1 Bla. Com. 442; 1 Washb. on Real Prop. 328, 329.

the attaching rights of the husband, would not be unconstitutional if made to apply to those already married, provided it was not allowed to affect the husband's vested rights in the property, acquired by the wife before the passage of the remedial statute. The statute can constitutionally cut off the husband's expectant interests in the property of the wife, acquired by her subsequently.1 The same rule obtains in the Western States, in respect to the community property of their local law. Thus, it has been held in California that a statute, which restricts the husband's control over community property, in denying his right to transfer the same without the written consent of his wife, was unconstitutional in its application to such property which had been acquired prior to the enactment of the amendatory statute."

The same principles will apply to tenancies by the curtesy, and to dower. Until the birth of a child, who was capable of inheriting the estate, the husband's curtesy was merely an expectant interest. Upon the birth of the child, the tenancy became initiate. The title vests in him absolutely. His right of possession as tenant by the curtesy is postponed until the wife's death, but the estate is so far a vested right upon the birth of issue, that he may convey it away, and it is subject to sale under execution for his debts.'

1 Westervelt v. Gregg, 12 N. Y. 202; Norris v. Beyea, 13 N. Y. 273; Pugh v. Ottenheimer, 6 Ore. 231 (25 Am. Rep. 513); Mitchell v. Violett (Ky.), 47 8. W. 195; Bishop Law of Married Women, §§ 45, 46. In Massachusetts it has been held that the husband's contingent interest, as husband, in the right of property to which the wife is entitled subject to a contingency, is so far a vested right that it cannot be affected by remedial legislation. Dunn v. Sargent, 101 Mass. 336. See Plumb v. Sawyer, 21 Conn. 351; Jackson v. Lyon, 9 Cow. 664; Pritchard v. Citizen's Bank, 8 La. 130 (23 Am. Dec. 132).

2 Spreckles v. Spreckles, 116 Cal. 339.

3 Tiedeman on Real Prop., §§ 108, 109; Mattocks v. Stearns, 9 Vt. 326; Roberts v. Whiting, 16 Mass. 186; Litchfield v. Cudworth, 15 Pick. 28; Watson v. Watson, 13 Conn. 88; Burd v. Dansdale, 2 Binn. 80; Lancaster Co. Bk. v. Stauffer, 10 Pa. St. 398; Van Duzer v. Van Duzer, 6

Any law, which provided for the abolition of tenancy by the curtesy, could not constitutionally be made to apply to those cases, in which the tenancy by the curtesy has become a vested right by the birth of issue, and a concurrence of all the other conditions, which are necessary to the existence of the tenancy. For in such cases the tenancies by the curtesy have become vested rights. But the law could apply to all the property of those already named, who have had no children, capable of inheriting the estate. And while the birth of issue and its death before the acquisition of the property by the wife, will be a sufficient performance of this condition, to enable the husband's tenancy by the curtesy to attach, as soon as the property is acquired by the wife; 2 yet until the property is acquired, the right to the tenancy by the curtesy in such property is so far an interest in expectancy, that it may be taken away by statute.

On the other hand, the wife's dower is inchoate until the death of her husband. Neither he nor his creditors can by any act deprive her of her dower during coverture; and it is so far a mere expectant interest, that she can neither assign, release, nor extinguish it, except by joining in the deed of her husband. It cannot during coverture be considered even a chose in action; and it is not affected by any adverse possession, although such possession is sufficient to bar the husband's interest in the land. Although the

Paige, 366; Day v. Cochrane, 24 Miss. 261; Canby v. Porter, 12 Ohio, 79. Equity will not interfere in behalf of the wife or children. Van Duzer v. Van Duzer, 6 Paige, 366.

1 Hathon v. Lyon, 2 Mich. 93; Long v. Martin, 15 Mich. 60. In Illinois, the husband's curtesy is by statute given the character of the wife's dower. It is, therefore, in that State, subject to change by statute, until the death of the wife makes it a vested right. Henson v. Moore, 104 Ill. 403; McNeer v. McNeer, 142 Ill. 388.

2 Tiedeman on Real Prop., § 108; Williams on Real Prop. 228, Rawle's note; Dubs v. Dubs, 31 Pa. St. 154; Lancaster Co. Bk. v. Stauffer, 19 Pa. St. 398.

3 Tiedeman on Real Prop., §§ 115, note, 126.

♦ Tiedeman on Real Prop., § 115; Durham v. Angier, 20 Me. 242; Moore

authorities are not altogether unanimous, the overwhelming weight of authority recognizes the dower during coverture as being so far inchoate and an interest in expectancy, that it may be changed, modified, or altogether abolished by statute. There is no unconstitutional interference with vested rights, as far as the dower right is concerned, whether it is by statute increased, diminished, or completely abolished. But where the dower estate is enlarged in the lands already possessed by the husband, there is a clear violation of his vested rights, because the incumbrance upon his estate has been increased. It would be the same, in respect to the wife's property, if the husband's tenancy by curtesy or other marital rights in her property were enlarged by

v. Frost, 3 N. H. 127; Gunnison v. Twitchell, 38 N. H. 68; Learned v. Cutler, 18 Pick. 9; Moore v. New York, 8 N. Y. 110; McArthur v. Franklin, 16 Ohio St. 200. But see Somar v. Canaday, 53 N. Y. 298 (13 Am. Rep. 523); White v. Graves, 107 Mass. 325 (9 Am. Rep. 38); Buzick v. Buzick, 44 Iowa, 259 (24 Am. Rep. 740), in which the inchoate dower is considered as a vested interest, so far as to enable a wife for its protection to secure in equity a cancellation of a deed, containing her renunciation of dower, which had been procured by the fraud of the purchaser.

1 Barbour v. Barbour, 46 Me. 9; Merrill ». Sherburne, 1 N. H. 199 (8 Am. Dec. 52). See Ratch v. Flanders, 29 N. H. 304; Jackson v. Edwards, 7 Paige, 391; s. c. 22 Wend. 498; Moore v. City of New York, 4 Sandf. S. C. 456: s. c. 8 N. Y. 110; Melizet's Appeal, 17 Pa. St. 449; Phillips v. Dinsey, 16 Ohio, 639; Weaver v. Gregg, 6 Ohio, St. 547; Noel v. Ewing, 9 Ind. 37; Logan v. Walton, 12 Ind. 639; May v. Fletcher, 40 Ind. 575; Carr v. Brady, 64 Ind. 28; Pratt v. Tefft, 14 Mich. 191; Guerin v. Moore, 25 Minn. 462; Bennett v. Harms, 51 Wis. 25; Henson v. Moore, 104 Ill. 403, 408, 409; Lucas v. Sawyer, 17 Iowa, 517; Sturdevant v. Norris, 30 Iowa, 65; Cunningham v. Welde, 56 Iowa, 369; Ware v. Owens, 42 Ala. 212; Bartlett v. Ball, 142 Mo. 28; Walker v. Deaver, 5 Mo. App. 139; Magee v. Young, 40 Miss. 164; Bates v. McDowell, 58 Miss. 815. Contra, Royston v. Royston, 21 Ga. 161; Moreau v. Detchmendy, 18 Mo. 522; Williams v. Courtney, 77 Mo. 587; Russell v. Rumsey, 35 Ill. 362; Steele v. Gellatly, 41 Ill. 39. See Dunn v. Sargent, 101 Mass. 336, 340. In Indiana, it has been held that dower may be increased, as well as diminished, in the lands owned by the husband at the time when the statute was enacted. Noel v. Ewing, 9 Ind. 37. A contrary conclusion has been reached in North Carolina. Sutton v. Asken, 66 N. C. 172 (8 Am. Rep. 500); Hunting v. Johnson, 66 N. C. 189; Jenkins v. Jenkins, 82 N. C. 202; O'Kelly v. Williams, 74 N. C. 281.

statute, after the property had been acquired. It is unquestionably the prevailing rule of construction, that the widow's dower right in the lands, which her husband has conveyed away during his lifetime, is governed by the law in force at the time of alienation. But since the dower right in all cases is inchoate during the coverture, even in the lands which have been aliened by the husband, it is in this case as much subject to legislative change, as long as it is not enlarged, as if the property was still in the possession of the husband. And while the presumption of law may be against the application of statute, regulating dower, to estates which have already been conveyed away, there is no constitutional objection in the way of its application to such cases, if the intention of the legislature is clearly manifested. It is true, as Mr. Cooley states: 1 that if the dower is diminished, the purchaser will get a more valuable estate for which he had not paid an equivalent consideration. But if it is the wish of the legislature that this shall be done, no provision of the constitution has been violated, for there has been no infringement of vested rights. This proposition was carried to such a logical extreme in Indiana, that, in declaring a statute, abolishing the common-law dower, and giving the wife an estate in fee in one-third of her husband's laud in lieu of dower, to apply to the lands granted by the husband to purchasers for value, it was held that her common-law dower in such lands was abolished by the statute; while she could not claim the enlarged dower in such lands, because the statute would then interfere with the vested rights of the purchaser. Thus, she was deprived of both the statutory dower, and the dower at common law.2 It may be doubted whether, in such a case, the legislature

1 Cooley Const. Lim. 442, n. 4.

? Strong v. Clem, 12 Ind. 37; Logan v. Walton, 12 Ind. 639; Bowen v. Preston, 48 Ind. 367; Taylor v. Sample, 51 Ind. 423. See Davis v. O'Farrall, 4 Greene, 168; O'Farrall v. Simplot, 4 Iowa, 381; Moore v. Kent, 37 Iowa, 20; Craven v. Winter, 38 Iowa, 471; Kennedy v. Insurance Co., 11 Mo. 204.