19 Ala. 619 | Ala. | 1851
The estate here distributed was in process of administration several years anterior to the passage of the act -of the 1st March, 1848, for “Securing to married women their separate estates,” &c. And it seems to be conceded, as the record persuasively shows, that the plaintiff in error married one -of the distributees before the enactment of the law-. The question then comes up, whether this act was intended to secure to -.the Avife ehoses in action Avhich accrued anterior to its passage, but Avhich the husband had not assigned or reduced into his possession.
The act ..provides, “ That if any woman, before and at the
There is nothing in the language of this act to indicate that it was intended to have a retroactive effect. On the contrary, the terms in which it is couched seem to limit its operation to after acquired property. The general rule, says Mr. Dwarris, is, that no statute is to have a retrospect beyond the time of its commencement, and he adds, that this is not only the doctrine of the English law, but it is also founded on the principles of general jurisprudence. — Dwa-r. on St. G80.
In Gilmore v. Shuter, 2 Lev. 227, a verbal promise was made to give or bequeath a sum of money in consideration of marriage. An action was brought against the executors on this promise, and the question made upon the special verdict was, whether this premise, which was made Before the 24 th day of June, 1677, the day on which the statute 29 Car., 2 ch 3, was passed, was within that statute. The court held that it could not be presumed that the statute was to have a retrospect, so as to take away a right of action which the plaintiff was entitled to before the time of its commencement. But we lately had occasion to examine this question, in the ease of Gould v. Hayes, at the present term, which sustains the view here taken, and renders it unnecessary to elaborate this point.
If in this case the husband, at the time of the passage of this law, had the right to reduce the share of the estate of Reuben Vaughan to which the wife was entitled, into possession, by proceedings in the Orphans’ Court, w'hereby his absolute right would have attached as husband, this right remained unaffected by the the act. It was a right which vested in him by virtue of the marriage, and of which the Legislature did not attempt to deprive him.
The ease of McGee & Wife v. Forde et al., 5 Smedes & M.
The fact that the court of chancery will make the husband do equity, by requiring him to make a suitable provision for the wife, before it will enable him to recover the wife’s choses in action, does not militate against our construction of the statute. The wife has the same equity notwithstanding the statute; that is, her equity with respect to property, or rights of property, which accrued to her before the statute, and which had not been reduced to possession by the husband, as husband, remains unaffected by the act, and their respective rights are to bo determined without regard to the act.
2. With respect to the amendment, we need only say, that in, a proper case, did it appear from the record that the share to be decreed was subject to the statute above referred to,, and who the wife was, so as to render the decree in favor of the husbandi and wife for the use of the wife, there would be no doubt but that the court could have amended the decree so as to have made it Conform to the law. But, in the case before us, there was nothing to amend by, so far as the record discloses. The cases in 15 Ala., of Greene v. Fagan’s Dist’s, 335, in which I did not sit, having been consulted as counsel before I came upon the bench, and Key v-Vaughan & Wife, 497, only show how the judgment should be rendered, according to the statute; but nothing is decided in either of them, nor was any point raised in them, as to the effect of the statute upon the rights of the parties, which had accrued before its passage.
A construction which gives to a statute a retrospective effect,, has always been esteemed odious, and will never be indulged unless the language employed requires it. Such statutes arc justly considered as violative of every sound principle. — Dwar. on Stat. 681, and cases there cited; 9 Law Lib. 35.
Let the decree be reversed and the cause remanded;