
    BURTON v. BURTON.
    December, 1864.
    An alien widow of a naturalized citizen of the United States, although she never resided within the United States during the lifetime of her husband, is entitled to dower in his real estate.
    
    Elizabeth Burton sued Cecilia Burton and J. J. Crane, executors of the will of William E. Burton, deceased, to recover dower. William E. Burton, the decedent, and the plaintiff, were both British subjects, born in England, and there also married, while residents there, in April, 1823. Burton became thereafter a resident of Pennsylvania, and became a citizen of the United States, by naturalization, October 8, 1840. He removed to the State of New York, in 1848, where he thenceforth resided until his death, February 10, 1800. He acquired the property in question, October 4,1851. The plaintiff always resided in England until a year prior to the action, and never was in the United States during Burton’s lifetime.
    The only question was whether plaintiff was entitled to dower.
    The New York statute of 1845 provides that “ any woman, being an alien, who has heretofore married, or who may hereafter marry a citizen of the United States, shall be entitled to dower in the real estate of her husband within this State, as if she were a citizen of the United States.” L. 1845, c. 222, § 3.
    The act of Congress of 1855 (c. 71), provides that “ any woman who might lawfully be naturalized under existing laws, married, or who shall he married to a citizen of the United States, shall be deemed and taken to be a citizen.”
    
      The court below held (in 27 How. Pr. 474), that neither act entitled the plaintiff to claim dower, and gave judgment for defendants, from which plaintiff appealed.
    
      
      Charles O’Conor, for plaintiff, appellant.
    H. A. Cram, for defendants, respondents.
    
      
       Although the court were equally divided on the construction given to the statutes involved in this case, the opinion of Mullust, J., as to residence not being necessary under the New York statute, is confirmed by Goodrich v. Russell, 43 N. Y. 177, which may be regarded as settling the law on this point, in conformity with the above mentioned opinion
    
   Mullin, J.

An alien widow of a native bom or naturalized citizen was not entitled to dower in the lands of her husband at the common law. Co. Litt. 31; 2 Blacks. Com. 131; 4 Kent Com. 36. This general rule has been somewhat modified in this State. By § 1, c. 49, of L. 1802 (3 B. S. 1 ed. 343), it was provided that all purchases of lands made or to be made by any alien who has come to this State and becomes an inhabitant thereof shall be deemed valid to vest the estate to them granted, and it was declared lawful for such alien to have and hold the same, to his heirs or assigns forever, and to dispose of the same, provided that any purchase thereafter made should not exceed one thousand acres. The supreme court held, in Sutliff v. Forgay, 1 Cow. 89, that under this statute the Widows of aliens entitled by the act of 1802, and the acts extending the same, to hold real estate, are dowable. The judgment in this case was affirmed by the court for the correction of errors, in 5 Cow. 713.

The Revised Statutes embody both the foregoing sections of the act of 1802, and the construction given thereto, in section 2, of title 3, article 1, chapter 1, part 2, which section is' in these words:

“§ 2. The widow of any alien, who, at the time of his death shall be entitled by law to hold any real estate, if she be an inhabitant of this State at the time of such death, shall be entitled to dower of such estate in the same manner as if such alien had been a native citizen.” 1 R. S. 740, § 2.

It was declared by section 2 of chapter 115, of the Laws of 1845, that the wife of any alien, resident of this State, who had theretofore taken by conveyance, &c., any real estate, and who had died before the passage of said statute, and the wife of any alien resident resident of this State, who might thereafter take by conveyance, &c., any real estate, should be entitled to dower therein, whether she was an alien or a citizen, but dower could not be claimed in lands conveyed by the husband before the passage, of said act. By the third section of the same chapter it was provided, that any woman being an alien who had theretofore married or might thereafter mary a citizen of the United States, shall be entitled to dower in the real estate of her husband within this State, as if she was a citizen of the United States.

These are the only exceptions to the general rule, that an alien widow is not entitled to dower, and none of them aid the plaintiff, unless the section last cited may be held to extend to her. The plaintiff rests her claim to a dower interest in the premises in question, on the ground that she is, by virtue of the act of Congress above cited, a citizen of the United States, and it is necessary to meet and dispose of that question in the first instance.

[The remarks on this question, to the effect that actual residence of the wife in this country is necessary to give her the benefit of the act of Congress, are omitted, as the court were equally divided on this question, — Weight, J., Dentó, Ch. J., H. R. Seldeh, and T. A. Johhsoh, JJ., being of the contrary opinion. See Kelly v. Owen, 7 Wall. 496.]

The right to dower is not, however, given or withheld by act of Congress, except so far as the right to it may be made by State laws to depend on the treaty or law-making powers vested by the Constitution of the United States in the Federal government. The act of Congress to which reference has been made, does not, of itself, give to or withhold dower from alien widows, but as by the law of this State an alien widow cannot be endowed and a citizen widow can, the act of Congress, by making her a citizen, gives her a status in which the State law clothes her with the right which, without the act of Congress, she would not be entitled to enjoy.

As the right .to dower depends upon the State law, and as it is competent for the State to give the right to alien as well as native born or naturalized widows, we must go to the State statutes to ascertain whether the plaintiff, although an alien, is not entitled to dower.

I have already referred to the only provision which can be said to reach the plaintiff, and as it is very brief, I will again transcribe it.' It is section 3 of chapter 115, of the Laws of 1855, and is in these words, viz: “Any woman being an alien who has heretofore married, or who may hereafter marry a citizen of the United States, shall he entitled to dower in the real estate of her husband within this State, as if she were a citizen of the United States.”

The plaintiff, at the time of the passage of the act, was an alien, and had theretofore married a man who then (at the passage of the act) was a citizen of the United States. If this is the fair, reasonable construction of the section, the plaintiff by virtue of it is entitled to dower; she comes within the very letter as well as within the spirit of it.

Two reasons are urged why the plaintiff cannot take under the provision referred to. First, because her husband was not a citizen at the time of the marriage;, and, second, because she was not at any time during the life of her husband a resident of this State.

1. Then was it necessary in order to entitle her to dower under this section, that her husband, at-the time of their marriage, should have been a citizen of the United States ?

It will be seen that the phraseology of the section ot the State statute and of the second section of the act of Congress of 1854, are in this respect identical. The construction given to this act of Congress applies to the act of 1845. Both are to be liberally construed. Marriage to a person who was a citizen at the time of the passage of the act, whether citizen at the time of the marriage or not, satisfies both their language and spirit. It was the alien wives of citizens who were intended to be benefited by the statutes, and as no reason can be presumed why those only should be made citizens by the one, or endowed by the other, who had married husbands who were citizens at the time of the marriage, rather than those who should marry husbands, aliens at the marriage, but who thereafter became naturalized; and as the evident intention was to remove a disability from alien women whose husbands were citizens, the construction should be such as to give full effect to the beneficent intention of the legislature. There is nothing in the mere act of marrying a citizen that should entitle the wife to a favor to which the woman who marries an alien, afterward naturalized, would not seem to be equally entitled. The fact that the husband of an alien is a citizen, attached (as he must be) to the principles of the Constitution of the United States, and well. disposed to the good order and-happiness of the same,” furnishes some security that the wife will not be hostile to its interest, or dangerous to its peace.

This security is none the greater by reason of the husband being a citizen at the instant of marriage rather than made such the next day, or month, or year. It must be conceded that it was competent for the legislature to restrict the right of dower to such women as should marry husbands who were citizens at the time of the marriage. But as we are to arrive at the intention of the law-malcers from the language of the statute, construed in reference to the evil to be remedied, or the good to be attained, and as the language of the act is satisfied, and the end proposed best attained, by the construction which I have felt constrained to give the statute, I am of the opinion that under it the plaintiff is entitled to dower.

The liberal construction given by the supreme court to the act of 1803 in Sutliff v. Forgay, supra, whereby it held that the purchase by a husband, of land in 1804, he having been naturalized in 1803, inured to the benefit of the alien wife, and entitled her to dower in, the lands so purchased, should be applied to the statute of 1845. The act of 1803, under which that decision was made, declared “ that all purchases of land, made or to be made, by any alien who has come to this State and become an inhabitant thereof, shall be deemed valid, to vest the estate to him granted, that he might dispose of and hold the same to his heirs and assigns.” By an act.passed in 1808 all persons authorizd by the act of 1803 to acquire real estate might also take and acquire.by devise and descent. It will be seen that there is no allusion to rights of dower in either statute, yet that the supreme "court held that as the wife by the act of 1803 was capable of acquiring the title to land the purchase of the husband inured to her benefit, so that at the time of his purchase she acquired an inchoate right cf dower in the lands so purchased by him. The same court, in the subsequent case of Priest v. Cummings, 16 Wend. 627, and the court for the correction of errors,- in the same case, 30 Wend. 338, express doubts whether the decision in-the first case was put on the true ground, yet they do not question the correctness of it, but on the contrary approve the liberal construction which the court gave to the statute whereby the widow was held entitled to dower.

2. Was residence in this State essential in order to entitle the plaintiff to dower ?*

The act does not in terms require it, and I do not think the legislature intended to require it. The absence of any such intention is demonstrated, it seems to me, by the Other provisions of the act. The first section declares that any alien resident of this State who had taken a conveyance of real, estate in this State, before filing in the office of the secretary of state the deposition specified in section 15, title 1, chapter 1, of the second part of the Revised Statutes, might on filing such deposition,, hold such real estate in the same manner and with the like effect as if he was a citizen of the United States. By the second section of the same act, it is provided that the wife of any alien resident of this State who had therefore taken, by conveyance, any real estate, and who had died before passing of said act, and the wife of any alien resident who might thereafter take by conveyance, &c., should be entitled to dower therein, whether she be an alien or citizen.

By the fourth section, if any alien resident who had purchased, or who should thereafter purchase real estate and died, or should thereafter die, leaving persons who would answer the description of heirs of such persons, whether citizens or aliens, were declared capable of taking and holding as his heirs; but if any such persons were males of full age, they should not hold such real estate unless they are citizens, or have filed the deposition required to be filed, in order to entitle them, if aliens, to take and hold real estate.

The fifth section provides that the devisee or grantee of any alien resident, may take and hold, whether a citizen or alien, but if such grantee or devisee was an alien and a male of full age, he must make and file the deposition required to be filed before he should be enabled to take and hold the premises granted or devised.

By the sixth section a resident alien was authorized to gran t or devise real estate to a resident alien, if such grantee, &c., had filed the deposition required by law, on condition that the resident male alien of full age should himself file a deposition. It is unnecessary to refer to all the provisions of the statute. Suffice it to say, that in eight out of the first nine sections, where residence by the grantee or devisee is considered essential by the legislature, as a condition precedent to the right to take and hold land, it is so declared. But in the third section, and in the subsequent sections, where females are permitted to take either as grantees or devisees, or as dowagers, residence is not made a condition, it being made necessary only as to males of full age. By making residence a condition as to one class of persons, and omitting to require it as to another class, conclusive evidence is furnished that the legislature did not intend to require it of such other.

It is urged by the defendants’ counsel that to give the widow dower in the lands of her husband would be a violation of the Constitution of the United States, which declares that no person shall be deprived of life, liberty, or property without due process of law. I do not perceive that the difficulty suggested by the counsel can arise. If I am right in holding that the widow takes, not under the act of Congress, but under the State law of 1845, then the right to dower attached the instant the husband purchased the land, precisely as it would have done .had she been at that time a citizen of the United States. Unless, therefore, all laws giving dower to alien widows in the lands of husbands are unconstitutional, there is no reason for holding the act of 1845 to be so.

I am of opinion that the judgment of the common pleas should be reversed, and judgment ordered for the plaintiff, overruling the demurrer, with costs.

Wright, J.,

delivered an opinion to the effect that plaintiff was not entitled to dower under the act of 1845, becaiise at the time of marriage the husband was an alien; but that any woman who might be naturalized, and who married abroad, even before the naturalization of her husband, becomes a citizen on his naturalization, although she never resided in this country; and, — although the land was acquired by him before the act was passed, — is entitled to dower therein. And in this opinion Dentó, Oh. J., and H. R. Seeden, and T. A. Johnson, JJ., concurred.

Davies, Ingraham and Hogeboom, JJ., did not concur in the opinion of Wright, J., so that a majority did not agree in respect to the construction of either statute.

Judgment reversed, and judgment for plaintiff on second defense; issue on first defense to be tried below. 
      
       The case of Larreau v. Davignon, 5 Abb. P. N. S., 367, seems to have been determined on a contrary principle of construction.
     
      
      
         The remarks of Wright, J., on this question were as follows :
      The point was raised and pressed with much earnestness by the defendants’ counsel, that the plaintiff was not entitled to claim dower in the land described in the complaint, it having been purchased by Burton in 1851, and an absolute unincumbered title having been vested in him prior to the passage of the act making his wife a citizen. The objection in substance is, that a naturalized wife is not entitled to claim dower in lands of her husband, acquired previously to her naturalization. The ground of the objection is a want of power in Congress to pass any law, ■the effect of which is to take away of impair vested rights of property in .the husband. Burton, it is said, was the absolute owner of the land in question before his wife was naturalized, and an act of Congress by which property is taken from one and transferred to another, or by which the property of one is taken or destroyed without compensation, even though it is not transferred to another, is within the condemnation of that provision of the federal Constitution which declares that “ no person shall be deprived of life, liberty or property, without due process of law ” (Amendments to U. S. Const., Art, 5), and that to create a contingent right of dower, and attach it to land of which he is the absolute owner, so as to diminish its vendible value and limit his power of disposition in respect to it, is a taking of his property in a constitutional sense. The difficulty with this argument is, that the act of Congress naturalizing the wife of itself gives nothing to the wife nor takes anything from the husband in the nature of property; it merely removes a personal disability of the wife to take dower by reason of her alienism ; and in this Burton had no vested right. A right in the wife to take dower was, at all times, a fundamental feature in the law and civilization of the people amongst whom he and the plaintiff were born and married.
      He did not depart from the sovereignty of that civilization when he removed to this country and became an inhabitant thereof. 1 Greenl. Cruise, tit. 6, c. 1, §§ 1, 2, 3, 4, 5, 6; Pa/rlc on Dower, p 2 and notes. Personal disabilities are imposed or removed by the State as a matter of State policy ; and no third person has either a legal interest or a right of the nature of property in their existence or continuance. The effect of their absence or presence on the individual interests of third persons is merely incidental. The creation or preservation of such interests is never an object or a duty of the legislature in dealing with such disabilities. It is purely a matter of public policy. A married woman may obtain naturalization without the consent of her husband (Priest v. Cummings, 16 Wend. 626 ; S. C. on error, 20 Id. 345); and in virtue of her naturalization she- at once becomes entitled, by act and operation of law, to dower in all lands theretofore acquired by him, and of which he was seized during the coverture, except such as he had previously aliened. In other words, as against the husband, the act of naturalization perfects her right in respect to his previously acquired lands. “ When an alien woman,” says Cruise, “ is created a denizen, she becomes entitled to dower out of all the lands whereof her husband was seized at the time when she was created a denizen ; but not out of any lands whereof he was seized before, and which he had aliened.” 1 Greenl. Cruise, tit. 6, c. 1, § 80. So, if she were naturalized. Priest v. Cummings, 16 Wend. 617.
     