203 P. 576 | Or. | 1922
The question presented is whether plaintiff, a nonresident of the State of Oregon, is entitled to an estate by the curtesy in the lands of his deceased wife of which she was not seized at the time of her death but had conveyed some years prior thereto.
“The origin of the estate by the curtesy, although very ancient, is involved in obscurity; nor is there any principle to which by consent it is referable. * * It is quite important to know. the reasons which*607 prompted the introduction of tenancy by the curtesy into the common law in order to determine the intent of subsequent legislation in continuing, modifying or destroying it; but unfortunately, there is no consensus of judicial opinion as to the reasons which gave rise to its introduction into the English system. It has been said by an English jurist that it has no moral foundation to support it, and an American court has characterized it as an estate which exists simply because ‘ita lex scripta est.’ A noted English writer says the custom sprang from favor to the husband, rather than from any right * * . In the United States curtesy was introduced as a part of the common law, but it has been abolished, or modified by statute, in many of the states.” 17 C. J., § 2, p. 414.
It follows that the disposition of this case rests upon the interpretation to be given Section 10073, Or. L., reading:
“A woman being an alien shall not on that account be barred of her dower; and any woman residing out of the state shall be entitled to dower of the lands of her deceased husband lying in this state of which her husband died seized, and the same may be assigned to her, or recovered by her, in like manner as if she and her deceased husband had been residents within the state at the time of his death.”
And to Section 10082, reading in part:
“ * * Estates by the curtesy may be admeasured, assigned and barred in the same manner that dower may be admeasured, assigned and barred; and, as far as practicable, all other laws of this state applicable to dower shall be applicable, in like manner and with like effect, to estates by the curtesy.”
In reference to Section 10073, Mr. Justice Rand, speaking for this court in Woolsey v. Draper, 103 Or. - (201 Pac. 730, 732), said:
“This section was under consideration by this court in Cunningham v. Friendly, 70 Or. 222 (139 Pac. 928, 140 Pac. 989), and it was there held that a woman residing out of the state shall be entitled to dower in lands only of which her husband died seized, citing in support thereof Thornburn v. Doscher, 32 Fed. 811.”
In the Cunningham case it was held that under the provisions of the statute as construed by this court, the wife, being. a nonresident of the state, had no
Section 10073, Or. L., was copied from the Revised Statutes of Michigan of 1846. In fact, the Oregon statute relating to estates in dower was taken from Michigan. The Michigan act relating to dower and curtesy is entitled:
“An act relating to estates in dower, by the curtesy, and general provisions concerning real estate.”
Very early in the history of Oregon Territory, dower and curtesy rights were defined by the legislative assembly. The territorial legislature, at its session commencing December 5, 1853, adopted the law entitled:
“An act relating to estates in dower, by the curtesy, and general provisions concerning real estate.”
This law became effective May 1,1854, and has continued in force since that time without material change except that the widow’s dower has been increased from one third to one half, and that the estate by the curtesy has been reduced from the whole to one-half part of all the lands of which the wife was seized. This act consists of twenty-nine sections and is almost an exact copy of the Michigan law relating to dower, comprising twenty-nine sections of the Revised Statutes of Michigan, 1846.
Section 10082, Or. L., here under consideration, is Section 21 of the Michigan act and likewise Section 21 of the Oregon Territorial Act. This section of the statute was copied into the laws of other states. The decisions in the several jurisdictions interpreting it are in harmony. It was construed by the Supreme Court of Michigan in Pratt v. Tefft, 14 Mich. 191,
“The object of this section is not to give a nonresident widow the right to dower. That was already done by Section 2954 (Sec. 10053, Or. L.), which gives the right generally, and without qualification as to alienation by the husband or the residence of the ■parties. Although the provision is affirmative in form, it has a negative operation. Therefore, it must be construed as if it read: ‘No woman residing out of the state shall be entitled to dower of the lands of her husband lying in this state, of which he did not die seized.’ By a necessary implication, the section denies to a nonresident woman the right to dower of lands of which her husband was not seized at the time of his death.” Thornburn v. Doscher, supra.
The early construction given by the Supreme Court of Michigan was affirmed in the case of Stringer v. Dean, 61 Mich. 203 (27 N. W. 886), and reaffirmed again in Putney v. Vinton, 145 Mich. 219 (108 N. W. 657, 9 Ann. Cas. 147).
In the case of Atkins v. Atkins, 18 Neb. 474, 475 (25 N. W. 724), the court, in construing a like statute, said:
“It will be seen that any woman residing out of the state is entitled to dower only in such lands of her deceased husband lying in this state as. he was seized of at the time of his death. This section of the statute seems to have been copied from the statute of Michigan on that subject, the language being the same. The proper construction of the section was before the Supreme Court of that state in Ligare v. Semple, 32 Mich. 438.”
The cases of Pratt v. Tefft, Ligare v. Semple, Atkins v. Atkins, and Bervnett v. Harms, hereinbefore
In the more recent case of Burr v. Finch, decided May 13, 1912, 91 Neb. 418 (136 N. W. 72), which involved title under a tax lien, the court wrote:
“While the tax lien was being foreclosed the patentee and his wife were nonresidents, residing at Independence, Iowa. She is not entitled to redeem. Under the statutes of this state the dower of a nonresident is limited to lands of which her husband died seized. ’ ’
To like effect is Miner v. Morgan, 83 Neb. 400 (119 N. W. 781).
The Circuit Court of Appeals, in an opinion rendered July 6, 1920, said:
“We may assume that its adoption (Section 10073, Or L.) was inspired by a principle of public policy, having in view the vast distance between the Territory and the Eastern States, whence immigration came, the difficulty of communication, the difficulty of ascertaining whether a resident of the Territory had a wife ‘back in the States,’ and the difficulty of obtaining her signature in case she were known.” Ferry v. Spokane P. & S. Ry. Co., 268 Fed. 117.
In that case the court held that under Section 10073 a wife who was a nonresident of the state at the time of the conveyance of lands within the state by her husband, in which she did not join, is not entitled to dower in such lands, and that such statute is not invalid as abridging the privileges or immunities of citizens within the meaning of Const. U. S., Amend. XIV.
The record in this case informs us not only that the plaintiff was a nonresident of the State of Oregon at the time of the conveyance of the property by his
It is well settled in this state by the adjudicated cases of our own court, as well as by authorities from other jurisdictions herein noted, that a wife, under circumstances similar to those existing in the instant case, would not be entitled to dower in the lands referred to. For the same reason, under the provisions of our Code in force since 1907 the right of the nonresident husband to title by the curtesy does not attach to the lands conveyed by the deed set forth in the statement herein.
The section of our Code denominated Section 10082 was originally Section 30, Title II, of “An act relating to estates in dower, by the curtesy, and general provisions concerning real estate,” enacted, as we have seen, by the legislative assembly of the Territory of Oregon meeting December 7,1853. That title contained the one section only. It then read:
“When any man and his wife shall be seized in her right of any estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for his life, as tenant thereof by the curtesy, although such husband and wife may not have had issue born alive.” Statutes of Oregon, 1853, p. 377.
It was amended by Chapter 87, Laws of Oregon, 1907, to read:
“The widower of every deceased person shall be entitled, as tenant by the curtesy, to the use, during his natural life, of one half part of all the lands whereof his wife was seized of an estate of inheritance at any time during the marriage, although such husband and wife may not have had issue born alive, unless he is lawfully barred thereof. Estates by the curtesy may be admeasured, assigned, and barred in the same manner that dower may be admeasured, as*613 signed and barred; and, as far as practicable, all other laws of this state applicable to dower shall be applicable, in like manner and with like effect, to estates by the curtesy.”
If the language of the amended section were obscure or its meaning ambiguous, we would here record the history of the statute, which would reveal that it was enacted as the result of agitation for equal political and property rights between man and woman. But the language is so plain, its meaning so evident, that recourse may not be had to matters outside of the record for the purpose of determining its express meaning. It is our duty, when construing the amended section, to learn the intention of the legislative mind. In this amendment the legislative intent appears in terms clear and manifest. The language conveys to our minds the legislative will, and is, therefore, binding upon us. The effect of this statute being-obvious, we are not at liberty to go outside of its provisions and speculate that the legislature might have meant something else. We must not presume that the law relating to the widower’s curtesy was not amended for some definite purpose, nor that it was not intended to be effective as amended.,'
The statute was also amended in this particular by providing that “estates by the curtesy may be admeasured, assigned and barred in like manner as the dower of a widow may be admeasured, assigned and barred.” The meaning conveyed by these words is evident.
Carving again from the amended statute, we have:
“As far as practicable all other laws of this state applicable to dower shall be applicable in like manner and with like effect to estates by the curtesy.”
How unmistakable is the legislative intent here expressed!
Section 10073, Or. L., relating to dower, is made applicable to estates by the curtesy. It bars a nonresident man from the right of curtesy in lands of which his wife was not seized at her death.
We have observed that the statute bars a nonresident woman of dower under circumstances obtaining in the ease at bar. Hence, the provision that “all other laws of this state applicable to dower shall be applicable in like manner and with like effect to estates by the curtesy,” denies plaintiff’s suit.
The provisions of Section 10073, Or. L., must be applied to widow and widower alike.
This case is affirmed. Affirmed.
