
    Moore v. Kent et al.
    
    Dower: by what' law governed. At the time of the conveyance of real estate by the husband, in which the wife did not join, her dower right remained as at common law; subsequently, and before the husband’s death, the right of dower was enlarged by the act of 1862. Eeld, that the widow was entitled to dower according to the law in force at the time of the conveyance.
    
      Appeal from Woodbury District Oou/rt.
    
    Thursday, June 19.
    The plaintiff, in her petition, states that in June, 1859, she was married to Marshall F. Moore, who died in February, 1870; that said Marshall F. Moore, at the time of said marriage and during the time of their coverture, was seized of a certain parcel of ground in Woodbury county, Iowa, being 22 feet front and 100 feet deep, and being immediately north of the south half of lot nine in block five in Sioux City east addition; that the defendant is in possession of said parcel of land, and claims to own the same in fee simple under and by virtue of a conveyance thereof to him from John Currier to whom said Marshall F, Moore conveyed the same on the 10th day of August, 1859.
    The plaintiff claims to be entitled to dower in the premises, and alleges that she has demanded the same of the defendant, that he has denied her right to dower, and has refused to have the same admeasured or to permit her to have her said dower, and she prays that her dower be assigned, etc.
    The plaintiff demurred to this petition, which being sustained and judgment rendered thereon, the plaintiff appeals.
    
      H. B. Wilson for the appellant.
    
      John Cwrrier and O. O. Trecboay for the appellee.
   Miller, J.

The petition states that the plaintiff’s husband was the owner of the land, and that he conveyed it to John Currier on the 10th day of August, 1859. At this time the act of 1853 (ch. 61, acts of Fourth General Assembly) was in force, which provided that “ one-third in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, and to which the wife has made no relinquishment of her rights, shall, under the direction of the court, be set apart by the executor as her property in dower upon the death of the husband if she survive him. Said estate in dower to be and remain the same as at common law.” By chapter 151 of the Laws of 1862, which was after Marshall F. Moore had conveyed, but prior to his death, the provision of the statute above quoted was repealed and the following enacted in lieu thereof: One-third in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which has not been sold on execution or other judicial sale, to which the wife has made no relinquishment of her rights, shall, under the direction of the court, be set apart by the executor, administrator or heir, as her property in fee simple, on the death of the husband, if she survive him.”

It has been held by this court that the right of the widow to dower depends upon the law in force at the time of the death of the husband. Lucas v. Sawyer, 17 Iowa, 517; Sturdevant v. Norris, 30 id. 65. In the former of these ..cases. Wright, Oh. J., says, that in measuring her rights, as already seen, we look to the law in force at the time of the husband’s death, for it is this event which ripens or makes consummate the prior right, which, so long as it rested upon the marriage and seizin, was inchoate only. If there was no law in force at that time giving her the right, then it is extinguished; she cannot take under a law repealed prior to that time. And, taking under the law then existing, she must take it with its restrictions and limitations.”

There is another class of cases in this court in which it has been held that the dower right of the widow should be governed by the law in force at the time of the alienation by the husband. See these cases cited in the opinion in Lucas v. Sawyer, supra, on p. 519. There would seem to be an inconsistency in these two classes of cases; but on examination this seeming inconsistency disappears. The cases last alluded to arose where the estate of dower under the law in force at the time of alienation had been enlarged by the law in force at the decease of the husband, and were decided mainly on the ground that the estate of dower having been enlarged, the statute should not have a retroactive operation, so as to lessen the estate purchased by the vendee. And since there was no question made in those cases, but what the widow was entitled to dower, either under the law in force at the time oí alienation, or under that in force at the death of the husband, the only controversy being whether she took under the former or under the latter; and, as the wife could not take under the statute in force at the death of the husband without an infringement of the vested rights of the purchaser, she was allowed to take her dower under the former law.

These cases, therefore, while they apply the law in force at the time of the alienation by the husband, as governing the widow’s dower, recognize the soundness of the doctrine as announced in Lucas v. Sawyer, supra, and followed in Sturdevant v. Norris, supra; but apply tbe former law as governing the widow’s dower in lands conveyed by tbe bus-band under that law. These decisions are based upon tbe doctrine of tbe law in respect to tbe rights of tbe purchaser. He having purchased of tbe husband when tbe law gave tbe widow dower as at common law, be took tbe land subject only to that inchoate right, which tbe legislature has no power to enlarge as against him. But it being conceded that upon tbe death of tbe husband tbe widow was at least endowable to tbe extent of tbe law in force at tbe time of alienation. Tbe court so endowed her.

In this case, however, it is insisted that tbe wife not being entitled to dower under tbe law of 1862, giving an estate of one-third in fee simple, in premises previously conveyed by her husband, while tbe statute gave her dower as at common law; and since tbe act of 1862 repealed tbe former law in respect to dower, she cannot claim dower under that act, and hence, that she is not entitled to dower at all in tbe premises in controversy.

Tbe right of the wife to be endowed of tbe lands of her bus-band, so long as it is inchoate only, may be enlarged, abridged, or entirely taken away by statute. Lucas v. Sawyer, supra, and cases cited on p. 521. And if tbe act of 1862, which repealed tbe act of 1853, under which tbe estate of dower was as at common law, bad stopped with simply a repeal of that act, we would have no hesitation in bolding tbe plaintiff not entitled to dower. But tbe act of 1862, while it repealed that of 1853, enlarged tbe estate of dower from a life estate in one-third of tbe lands of tbe husband, to an estate in fee simple to such portion. Tbe evident purpose of the legislature was, not to take away tbe widow’s dower, but to enlarge it. It was a substitution of a fee simple estate for an estate for life. It was not intended to destroy tbe smaller estate, but to give a greater one. And, since tbe estate in fee simple includes within it tbe lower and inferior estate for life, tbe latter would be saved to tbe plaintiff as it existed under tbe law of 1853, in force when her husband conveyed tbe premises.

A different conclusion was reached by the supreme court of Indiana in Strong v. Clem, 12 Ind. 37, a case like the one before us in most of its facts. When the land was conveyed by the husband the law gave the widow dower as at common law. Prior to the time of his death the legislature expressly abolished the estate of dower, and provided that the widow should be entitled to one-third in fee simple. The court held that since the widow’s inchoate right of dower had been taken away before it became vested by the death of her husband, and the legislature could not enlarge such inchoate estate beyond what it was at the time of alienation by the husband, she could not take under either law. This decision was followed in Logan v. Walton, 12 Ind. 637; Giles v. Gullion, 13 id. 487; Krantz v. Harrow, id. 507; Strong v. Dennis, id. 514; Giles v. Law, 14 id. 16 ; Harrow v. Myers, 29 id. 469.

But this holding seems never to have been satisfactory to the pi’ofession of that State, judging from the repeated efforts that were made to obtain a change of the decision; and the court, finally, in the case last cited, tacitly admit the error of the first decision, but say: “ If the doctrine of those cases be admitted to be wrong, it is yet quite obvious that it has already accomplished most of the harm that ever can result from it, while a change now would sow a wide crop of serious evils to the injury of those who are innocent, and who have purchased and sold real estate upon the faith of the doctrine declared,” etc.

There is this important distinction between the statutes of Indiana and those of this State in respect to this question. By the former the “ estate of dower ” as such was abolished by express statutory declaration, and one-third in fee-simple was given to the widow as her share in the real estate of her deceased husband. In this State, however, the same statute which repealed the statute of 1853, under which the widow took dower as at common law, gave to the widow a fee-simple estate of one-third as an enla/rged estate in dower, for by the third section of the act (1862) it is declared that all the provisions of the act made in relation to the widow of a deceased husband, shall be applicable to a husband of a deceased wife, and each is entitled to the same right of dow&r in the estate of the other,” etc. The act does not abolish or take away the estate of dower. It merely enlarges it from an estate for life to a fee simple. The estate of dower still exists as such, though enlarged in quantity, which clearly shows that it was not intended by the general assembly, in the passage of the act of 1862, to take away or destroy the inchoate right of dower as it existed under the prior law, but only to enact that, for the future, the estate of dower should consist of one-third in fee simple of the real estate in which the husband had during the marriage a legal or equitable interest, which had not been sold on execution or other judicial sale, to which the wife had made no relinquishment of her rights.

We unite in holding that the plaintiff is entitled to dower in the premises in controversy, according to the statute of 1853, consisting of a life estate in one-third thereof. The demurrer was improperly sustained, and the judgment will in each case be

Reversed.  