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Subject Area: Law
Topic: The American Revolution and Constitution

§ 135.: Interests in expectancy.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 135.

Interests in expectancy.—

Interests in expectancy, when distinguished from vested rights, are held not to be under the protection of the constitution, and may, therefore, be modified, changed, or completely abolished by subsequent legislation.5 A purely contingent interest, to which there cannot be any present fixed title, cannot be considered a vested right. Where the vesting of a right depends under existing laws upon the future concurrence of certain circumstances or facts, the repeal of those laws will operate to defeat the expectant interest. “A person has no property, no vested interest, in any rule of the common law. * * * Rights of property, which have been created by the common law, cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim of the legislature, unless prevented by constitutional limitations.”1

For the reason that an interest in expectancy is not to be considered a vested right, it is the universally recognized rule of constitutional law that the right of inheritance of the heir presumptive is liable to be modified or entirely defeated by a legislative change in the law of descent. The law of descent varies according to the civil polity of each State, or, as Blackstone has it, it is “the creature of civil polity and juris positivi.” Independently of positive law, the heir acquires no rights whatever in his ancestor’s property. For public reasons, and with an incidental recognition of the moral right to the inheritance of those who stand in the most intimate blood relationship with the deceased owner, the law declares that property, which the owner leaves at his death undisposed of by grant or demise, shall descend to those named by the statute and in the order given. The expectant heir’s right of inheritance rests altogether upon this command of positive law. A repeal of the law before the death of the ancestor would take away all authority for his claim of inheritance. It is, therefore, a well recognized and undisputed rule of law that the statute of descent, in force when the ancestor dies, determines the right of inheritance: nemo est hœres viventis.2 But when the ancestor dies, and under the then existing statute of descent, the property is cast upon a particular individual as heir, the right of property becomes a vested right, and like all other vested rights, however acquired, it cannot be affected by subsequent legislation.

Of the same character are the rights which the husband and wife acquire in the real and other property of each other, by virtue of the marital relation existing between them. By rule of positive law, for more or less public reasons, these rights are granted. They do not depend upon contract, and do not emanate from the marriage contract. The acquisition of these rights is merely an incident of the marriage, made so by law.1 If, therefore, the law upon which the claim to these marital rights of property rests, is repealed before the rights become vested, the expectant right would be defeated, because there would be no foundation for the claim of an existing right. The common law provided that the husband on his marriage would acquire an estate during coverture in all of the lands of the wife which she then owned, and, from the time of purchase, in all other lands which she may subsequently acquire.2 Until she acquires a title to the lands by purchase or otherwise, the right to an estate in the lands is merely expectant. A law, which provides that married women shall hold their lands and other property free from the attaching rights of the husband, would not be unconstitutional if made to apply to those already married, provided it was not allowed to affect the husband’s vested rights in the property, acquired by the wife before the passage of the remedial statute. The statute can constitutionally cut off the husband’s expectant interests in the property of the wife, acquired by her subsequently.1 The same rule obtains in the Western States, in respect to the community property of their local law. Thus, it has been held in California that a statute, which restricts the husband’s control over community property, in denying his right to transfer the same without the written consent of his wife, was unconstitutional in its application to such property which had been acquired prior to the enactment of the amendatory statute.2

The same principles will apply to tenancies by the curtesy, and to dower. Until the birth of a child, who was capable of inheriting the estate, the husband’s curtesy was merely an expectant interest. Upon the birth of the child, the tenancy became initiate. The title vests in him absolutely. His right of possession as tenant by the curtesy is postponed until the wife’s death, but the estate is so far a vested right upon the birth of issue, that he may convey it away, and it is subject to sale under execution for his debts.3 Any law, which provided for the abolition of tenancy by the curtesy, could not constitutionally be made to apply to those cases, in which the tenancy by the curtesy has become a vested right by the birth of issue, and a concurrence of all the other conditions, which are necessary to the existence of the tenancy. For in such cases the tenancies by the curtesy have become vested rights.1 But the law could apply to all the property of those already named, who have had no children, capable of inheriting the estate. And while the birth of issue and its death before the acquisition of the property by the wife, will be a sufficient performance of this condition, to enable the husband’s tenancy by the curtesy to attach, as soon as the property is acquired by the wife;2 yet until the property is acquired, the right to the tenancy by the curtesy in such property is so far an interest in expectancy, that it may be taken away by statute.

On the other hand, the wife’s dower is inchoate until the death of her husband. Neither he nor his creditors can by any act deprive her of her dower during coverture;3 and it is so far a mere expectant interest, that she can neither assign, release, nor extinguish it, except by joining in the deed of her husband. It cannot during coverture be considered even a chose in action; and it is not affected by any adverse possession, although such possession is sufficient to bar the husband’s interest in the land.4 Although the authorities are not altogether unanimous, the overwhelming weight of authority recognizes the dower during coverture as being so far inchoate and an interest in expectancy, that it may be changed, modified, or altogether abolished by statute.1 There is no unconstitutional interference with vested rights, as far as the dower right is concerned, whether it is by statute increased, diminished, or completely abolished. But where the dower estate is enlarged in the lands already possessed by the husband, there is a clear violation of his vested rights, because the incumbrance upon his estate has been increased. It would be the same, in respect to the wife’s property, if the husband’s tenancy by curtesy or other marital rights in her property were enlarged by statute, after the property had been acquired. It is unquestionably the prevailing rule of construction, that the widow’s dower right in the lands, which her husband has conveyed away during his lifetime, is governed by the law in force at the time of alienation. But since the dower right in all cases is inchoate during the coverture, even in the lands which have been aliened by the husband, it is in this case as much subject to legislative change, as long as it is not enlarged, as if the property was still in the possession of the husband. And while the presumption of law may be against the application of statute, regulating dower, to estates which have already been conveyed away, there is no constitutional objection in the way of its application to such cases, if the intention of the legislature is clearly manifested. It is true, as Mr. Cooley states:1 that if the dower is diminished, the purchaser will get a more valuable estate for which he had not paid an equivalent consideration. But if it is the wish of the legislature that this shall be done, no provision of the constitution has been violated, for there has been no infringement of vested rights. This proposition was carried to such a logical extreme in Indiana, that, in declaring a statute, abolishing the common-law dower, and giving the wife an estate in fee in one-third of her husband’s laud in lieu of dower, to apply to the lands granted by the husband to purchasers for value, it was held that her common-law dower in such lands was abolished by the statute; while she could not claim the enlarged dower in such lands, because the statute would then interfere with the vested rights of the purchaser. Thus, she was deprived of both the statutory dower, and the dower at common law.2 It may be doubted whether, in such a case, the legislature intended that the statute should operate in that manner; but if the intention to have the statute apply to such cases is established, judged by the principles of constitutional construction previously deduced, there can be no doubt that the statute can be made to apply to such cases, even when its application will have the effect of depriving the widow of her dower, at common law, without succeeding in vesting in her the greater estate, intended by the statute to take the place of the dower at common law. But a statute, which simply provided for the enlargement of the dower at common law into an estate in fee could not be construed, when applied to estates that have been granted away, so as to deprive the wife of her common-law dower; for the dower at common law would be abolished inferentially from the enlargement of the estate by the operation of the statute; and since the statute cannot apply to such cases, because it would infringe upon the vested rights of the purchaser, the wife’s dower in the lands of the husband’s purchaser would remain unchanged at common law. It is probable that the Indiana court was in error in not placing this construction upon the statute in question.

In all of the Western States, the public domain, either of the United States or of the respective States, is offered for sale and settlement, under general statutes, containing more or less minute provision for its survey, location, and the issue of certificates of purchase and of patents. Until an intending purchaser has had the land, which he has selected for his purchase, surveyed and located, and has received his certificate of purchase, he has acquired no vested rights in the lands; and a law which withdraws from sale the lands which he has selected, would, under these circumstances, constitute no interference with vested rights.1

But every future interest in property is not an interest in expectancy. A vested estate of future enjoyment is as much a vested right as an estate in possession.1 Vested remainders and reversions are, therefore, vested rights, and cannot be changed or abolished by statute. We have already discussed the character of a remainder or reversion after an estate tail, and have concluded that they are vested rights, not subject to legislative change or modification.2 If the remainder or reversionary interest were contingent, the conclusion would possibly be different.3

But is a contingent remainder, a contingent use or a conditional limitation,4 so far an interest in expectancy, that it may be defeated by subsequent legislation? In those cases in which the interest is contingent, because the person who is to take the contingent estate is not yet born, it may be reasonable enough to claim that the interest is not a vested right. Until one is born, or at least conceived, he cannot be considered as the subject of rights under the law. He certainly cannot have a vested right in or to anything. A statute might very properly destroy such a contingent interest. This class of cases may possibly include also those, in which the contingency arises from an uncertainty as to which of two or more living persons shall be entitled to take, as where the limitation is to the heirs of a living person. No man’s heirs can be ascertained until his death, although one may be the presumptive or apparent heir of another. The heir presumptive or apparent cannot be said to have a vested right to such an estate, in the sense in which the term “vested right” is employed in the law of real property; but the same may be said of any contingent interest, whether it be a remainder, a use, or a conditional limitation. The person, who is to take the estate upon the happening of the contingency, can in none of these cases claim to have a vested estate in the land; but may not the expectant owner of the contingent interest claim to have a vested, indefeasible right to the estate, whenever the contingency happens? Even in the law of real property, where the term “vested estate” is used in an extremely technical sense, the contingent remainderman, as well as the expectant owner of a shifting use or executory devise, is deemed to be so far possessed of vested rights in the estate as to be able, at least in equity, to make a valid assignment of the interest.1 It would seem, therefore, that the interest in such cases would be so far a vested right that it would be beyond the reach of legislative interference. Another reason may be assigned why a statute could not operate to destroy such contingent interests, viz.: that, being created by act of the owner of the property instead of arising by operation of law, its subsequent taking effect in possession does not depend upon the continuance of the present laws. A change in the law can only operate to defeat the contingent estate, by imposing upon the owner a prohibition against doing with the estate what he could do without the aid of law. In all the common examples of interests in expectancy, which have been changed or abolished by statute, the interest is the creature of positive law, and does not vest upon any act of disposition of the owner of the land. Its taking effect in possession must consequently depend upon the continued existence of the law, which authorizes and creates it. The repeal of the law, before it vests, does not operate retrospectively, in defeating the inchoate estate. But a law would most certainly operate retrospectively, making that unlawful or impossible which was possible and lawful when it was done, which changes or destroys the interest of a contingent remainderman, or executory devisee. Being retrospective, it will be void if it infringes any vested right, even though it does not amount to a “vested estate,” as the term is understood in the law of real property. It has been held recently by the Supreme Court of South Carolina, that a statute, which prohibits the destruction of contingent remainders and uses by the employment of the common law feoffment and livery of seisin was not void, as interfering with any vested right, if the statute operated to protect from destruction the continued estates which were in existence at the time that the statute was enacted.1

Another interesting question is, how far powers of appointment may be changed or abolished by statute. A law would act retrospectively, if it were made to avoid the deed or grant of a power of appointment, and, if it interfered with vested rights, would be unconstitutional. A special power of appointment to appoint the estate to certain persons, under certain conditions and in accordance with directions given, would give to these beneficiaries a vested right to the exercise of the power in their favor, within the restrictions and limitations imposed by the donor; and the donee of the power cannot suspend or extinguish the power by a release.2 It would be reasonable to claim that no statute could be so framed as to change or destroy such a power, because it would interfere with vested rights. But where the power was general, the donee having the power to appoint to whom he pleases, there is certainly no vested right to the exercise of the power in the person or persons to whom he might ultimately appoint the estate. But he would have an absolute right to the exercise of the power, either for himself or in trust for others; and this vested right would be violated by a statute, which either took away the power, or imposed upon its exercise limitations that did not exist at the time when the power was created, and which have the effect of materially reducing the value of the power. Such a statute would consequently be unconstitutional and void.

[5]Cooley Const. Lim. 440.

[1]Waite, Ch. J., in Munn v. Illinois, 94 U. S. 113, 134.

[2]Cooley Const. Lim. 441; Story on Confi. Laws, § 484; Tiedeman on Real Prop., § 664; Potter v. Titcomb, 22 Me. 300; Miller v. Miller, 10 Met. 393; In re Lawrence, 1 Redfield Sur. Rep. 310; Smith v. Kelly, 23 Miss. 167; Marshall v. King, 24 Miss. 85; McGaughey v. Henry, 15 B. Mon. 383; Jones v. Marble, 6 Humph. 116; Price v. Talley, 10 Ala. 946; Eslava v. Farmer, 7 Ala. 543; Sturgis v. Ewing, 18 Ill. 176; Emmert v. Hays, 89 Ill. 11; Cooley Const. Lim. 441.

[1]“Dower is not the result of contract but a positive institution of the State, founded on reasons of public policy. To entitle to dower, it is true, there must be a marriage, which our law regards in some respects as a civil contract. So the death and seisin of lands by the husband during the coverture are also necessary to establish a right to this estate. But they are not embraced by, nor are they the subjects of the marriage contract. The estate is by law made an incident of the marriage relation and the death and seisin of one of the parties are conditions on which it comes into existence. It stands, like an estate by the curtesy, on the foundations of positive law.” Moore v. City of New York, 8 N. Y. 110.

[2]Tiedeman on Real Prop., § 90; 1 Bla. Com. 442; 1 Washb. on Real Prop. 328, 329.

[1]Westervelt v. Gregg, 12 N. Y. 202; Norris v. Beyea, 13 N. Y. 273; Pugh v. Ottenheimer, 6 Ore. 231 (25 Am. Rep. 513); Mitchell v. Violett (Ky.), 47 S. W. 195; Bishop Law of Married Women, §§ 45, 46. In Massachusetts it has been held that the husband’s contingent interest, as husband, in the right of property to which the wife is entitled subject to a contingency, is so far a vested right that it cannot be affected by remedial legislation. Dunn v. Sargent, 101 Mass. 336. See Plumb v. Sawyer, 21 Conn. 351; Jackson v. Lyon, 9 Cow. 664; Pritchard v. Citizen’s Bank, 8 La. 130 (23 Am. Dec. 132).

[2]Spreckles v. Spreckles, 116 Cal. 339.

[3]Tiedeman on Real Prop., §§ 108, 109; Mattocks v. Stearns, 9 Vt. 326; Roberts v. Whiting, 16 Mass. 186; Litchfield v. Cudworth, 15 Pick. 28; Watson v. Watson, 13 Conn. 88; Burd v. Dansdale, 2 Binn. 80; Lancaster Co. Bk. v. Stauffer, 10 Pa. St. 398; Van Duzer v. Van Duzer, 6 Paige, 366; Day v. Cochrane, 24 Miss. 261; Canby v. Porter, 12 Ohio, 79. Equity will not interfere in behalf of the wife or children. Van Duzer v. Van Duzer, 6 Paige, 366.

[1]Hathon v. Lyon, 2 Mich. 93; Long v. Martin, 15 Mich. 60. In Illinois, the husband’s curtesy is by statute given the character of the wife’s dower. It is, therefore, in that State, subject to change by statute, until the death of the wife makes it a vested right. Henson v. Moore, 104 Ill. 403; McNeer v. McNeer, 142 Ill. 388.

[2]Tiedeman on Real Prop., § 108; Williams on Real Prop. 228, Rawle’s note; Dubs v. Dubs, 31 Pa. St. 154; Lancaster Co. Bk. v. Stauffer, 19 Pa. St. 398.

[3]Tiedeman on Real Prop., §§ 115, note, 126.

[4]Tiedeman on Real Prop., § 115; Durham v. Angier, 20 Me. 242; Moore v. Frost, 3 N. H. 127; Gunnison v. Twitchell, 38 N. H. 68; Learned v. Cutler, 18 Pick. 9; Moore v. New York, 8 N. Y. 110; McArthur v. Franklin, 16 Ohio St. 200. But see Somar v. Canaday, 53 N. Y. 298 (13 Am. Rep. 523); White v. Graves, 107 Mass. 325 (9 Am. Rep. 38); Buzick v. Buzick, 44 Iowa, 259 (24 Am. Rep. 740), in which the inchoate dower is considered as a vested interest, so far as to enable a wife for its protection to secure in equity a cancellation of a deed, containing her renunciation of dower, which had been procured by the fraud of the purchaser.

[1]Barbour v. Barbour, 46 Me. 9; Merrill v. Sherburne, 1 N. H. 199 (8 Am. Dec. 52). See Ratch v. Flanders, 29 N. H. 304; Jackson v. Edwards, 7 Paige, 391; s. c. 22 Wend. 498; Moore v. City of New York, 4 Saudf. S. C. 456; s. c. 8 N. Y. 110; Melizet’s Appeal, 17 Pa. St. 449; Phillips v. Dinsey, 16 Ohio, 639; Weaver v. Gregg, 6 Ohio, St. 547; Noel v. Ewing. 9 Ind. 37; Logan v. Walton, 12 Ind. 639; May v. Fletcher, 40 Ind. 575; Carr v. Brady, 64 Ind. 28; Pratt v. Tefft, 14 Mich. 191; Guerin v. Moore, 25 Minn. 462; Bennett v. Harms, 51 Wis. 25; Henson v. Moore, 104 Ill. 403, 408, 409; Lucas v. Sawyer, 17 Iowa, 517; Sturdevant v. Norris, 30 Iowa, 65; Cunningham v. Welde, 56 Iowa, 369; Ware v. Owens, 42 Ala. 212; Bartlett v. Ball, 142 Mo. 28; Walker v. Deaver, 5 Mo. App. 139; Magee v. Young, 40 Miss. 164; Bates v. McDowell, 58 Miss. 815. Contra, Royston v. Royston, 21 Ga. 161; Moreau v. Detchmendy, 18 Mo. 522; Williams v. Courtney, 77 Mo. 587; Russell v. Rumsey, 35 Ill. 362; Steele v. Gellatly, 41 Ill. 39. See Dunn v. Sargent, 101 Mass. 336, 340. In Indiana, it has been held that dower may be increased, as well as diminished, in the lands owned by the husband at the time when the statute was enacted. Noel v. Ewing, 9 Ind. 37. A contrary conclusion has been reached in North Carolina. Sutton v. Asken, 66 N. C. 172 (8 Am. Rep. 500); Hunting v. Johnson, 66 N. C. 189; Jenkins v. Jenkins, 82 N. C., 202; O’Kelly v. Williams, 74 N. C. 281.

[1]Cooley Const. Lim. 442, n. 4.

[2]Strong v. Clem, 12 Ind. 37; Logan v. Walton, 12 Ind. 639; Bowen v. Preston, 48 Ind. 367; Taylor v. Sample, 51 Ind. 423. See Davis v. O’Farrall, 4 Greene, 168; O’Farrall v. Simplot, 4 Iowa, 381; Moore v. Kent, 37 Iowa, 20; Craven v. Winter, 38 Iowa, 471; Kennedy v. Insurance Co., 11 Mo. 204.

[1]Looney v. Bagley (Tex.), 7 S. W. 360; State v. Cunningham, 88 Wis. 81.

[1]Cooley Const. Lim. 440. See ante, § 134.

[2]See ante, § 134.

[3]See to that effect, Varble v. Phillips (Ky.), 20 S. W. 306.

[4]The term “conditional limitation” is here employed as a general term, including shifting uses and executory devises. See Tiedeman on Real Prop., §§ 281, 398, 418, 536, 537.

[1]Tiedeman on Real Prop., §§ 411, 530.

[1]People’s Loan & Exchange Bank v. Garlington, 54 S. C. 413.

[2]Tiedeman on Real Prop., § 561.