25 Minn. 462 | Minn. | 1879
Plaintiff and Yetal Guerin were married, in 1841. . Afterwards, and prior to December 14, 1849, he became seized in fee of real estate now owned by defendant, and on that day conveyed the same to one Messeau, from
Gen. St. c. ±8, § 7, the law in force at the date of Guerin’s ■ death, when the plaintiff’s right to dower became a fixed and perfect right, would seem clearly enough to negative this. It reads.: “When a widow is entitled to any dower out of any lands aliened by the husband in his lifetime, and such lands have been enhanced in value after the alienation, such lands shall be estimated in setting out the widow’s dower according to their 'value at the time when they were so .aliened.” The plaintiff contends that the common-law rule gave the widow the benefit of any increase in value of the land arising from extrinsic causes, between the alienation and the assignment of the dower; and because authors and judges have used, to express the common-law rule, the phrase “according to the value at the time of the alienation,” the fixed legal signification of the words we have italicised, expresses such ■ common-law rule, and they were used by the legislature in that sense, and not with their ordinary meaning. But the courts in New York use the same form of words to express the common-law rule, as understood by them, yet those courts have uniformly held that at the common law the widow was not entitled to the benefit of an increase in value from any cause after the alienation; so it cannot be said that the words had a special meaning, differing from the ordinary meaning, so well settled that we are to presume the legislature used them in any other than the ordinary and popular sense. And
As we have stated, there was a statute of Wisconsin in force at the time of Guerin’s alienation, which established the ■ rule contended for by plaintiff. This statute was repealed by Rev. St. 1851, c. 137, § 1. But section 4 provided that “the repeal of the acts mentioned in this chapter shall not affect any act done, or right accrued or established, or any proceeding, suit or prosecution, had or commenced in any civil action or proceeding, previous to the time when such repeal shall take effect; but every such act, right or proceeding shall remain as valid and effectual as if the provisions so repealed had remained in force.” Plaintiff claims that this saved to her a right to have her dower, whenever her husband might die, assigned to her according to the measure established by the repealed statute; in other words, that a right to that quantity of dower in her husband’s lands had accrued to her, within the meaning of the word “accrued” in the saving clause. Whether this is so, depends on the character of an inchoate right to dower. Whatever doubts may have once existed on the point, it is now well settled that the right, while-inchoate, is wholly within the control of the legislature. The supreme court of the United States, in Randall v. Kreiger, 23 Wall. 137, 148, speaks of it as “the creature of the law,” and says: “During the life of the husband, the right is a mere expectancy or possibility. In that condition of things, the law-making power may deal with it as may be deemed.
At the time of the adoption of the Revised Statutes of 1851, the plaintiff had no accrued or established right to any ascertained quantum of interest in her husband’s lands, in case he died first, and therefore no such right was preserved by the saving clause in those statutes.
Judgment affirmed.