Morgan v. Perry , 51 N.H. 559 ( 1872 )

Saegent, J.

William Perry had an illegitimate son, William P. Perry; and when the son was some four or five years old, his father married his mother, and ever after both parents recognized William P. as their own child, and had other children born after marriage. Both the father and this son. were alive in 1860. In 1862, William P. Perry died, leaving James M. his son and heir ; and the father William died in 1870. This petitioner claims the right of William P. Perry to the estate of his father, as against the other children and heirs of William.

Before the act of 1860, William P. would not be an heir of his father. But in 1860, July 3, the following statute was passed by the legislature of this State ; “ Sec. 1. Where the parents of children «born before marriage afterwards intermarry and recognize such children as their own, such children shall inherit equally with other children, under the statute of distribution, and shall be deemed legitimate.” Sec. 2 repeals all acts inconsistent with the above provisions, and provides that this act shall take effect from its passage. Ch. 2343, Laws of 1860.

The question is as to the construction to be given to this law. Was it intended to • include all cases of those who had been born before marriage, whose parents had afterwards married and recognized them as children, or only those who should be thus born after the passage of the law ? It is claimed that to give this law the construction first named would be to make it a retrospective law, one that would take away vested rights, and thus be unconstitutional.

But it is well settled, as well as any other principle of the common law, that every person, while he lives, has a right to do what he will with his own; that his heirs have no claim or right whatever to his estate until his decease. He may make a will, and give his property to one or another as he chooses ; or the State may change the law for ' good reason, and provide that a set of relatives shall take by descent, entirely different from those who would inherit before, and no vested rights are touched; nor would the law be retrospective or unconstitutional, if it provided that the new set of heirs should take under the new law, in cases that should arise, in estates to be settled after the passage of the new law.

If the legislature should attempt to make a new law apply to the settlement of estates which had once been settled under the old law, and take for the new set of heirs the property which had already vested in the heirs under the old law, that would be clearly retrospective and uncon stitution al.

But while a man lives he has no heirs, and it is not until his death that any heirs have or can have any vested rights in his property. In Merrill v. Sherburne, 1 N. H. 199, 214, in speaking of retz’ospective laws and vested rights, it is said, — “ nor can acts of the legislature be opposed to these fundamental axioms of legislation, unless they impair rights that are vested, because most civil rights are derived from public laws; and if, before the rights become vested in particular individuals, the convenience of the State produces amendments or repeals of those laws, those individuals have no cause of complaint. The power that authorizes -or proposes to give, may always revoke before an interest is perfected in the donee. The right of femmes covert to dower may be taken away at any period before the death of the husband, and so the right of the next of kin to a relation’s estate, at any period before that relation’s death.” In such case there is no objection to the law, because it operates only in the future and takes away no vested right.

So in Miller v. Dennett, 6 N. H. 109, it was held that the law of 1809, which changed joint tenancies into tenancies in common, took effect upon a deed, dated in 1795, under which the grantees had entered and remained in possession until 1813, when one of the parties died ; and it was held that his heirs were entitled to hold their share. Richardson, C. J., in the opinion, says, — “ The statute applied to the deed in this case would take away no vested right * * * the acquisition of the whole estate by survivorship would have been (at the passage of the law) in either nothing more than a hope or expectancy, like the expectation of a child to inherit the estate of a parent. The statute thus applied operates upon an existing estate, but not retrospectively within the meaning of the constitution. It can no more be considered a retrospective law than a statute altering the descent of intestate estates: this neither gives nor takes away any right or interest.”

In continuing, he says, — “ The application of the statute to a case' where one joint tenant had actually taken the land by survivorship at the time the statute was passed * * would be an instance of the very thing which the constitution intended to prohibit. Thus applied, it would take away a vested right.” Chief Justice RichaRDSon thus assumes, for the purpose of illustrating the question then under discussion, what he evidently considered an axiom or self-evident first principle in law, that a statute altering the descent of intestate estates, which should apply only to estates to be settled after its passage, is not retrospective, or otherwise constitutionally objectionable.. Stevenson v. Cofferin, 20 N. H. 150.

And in Loveren v. Lamprey, 22 N. H. 434, a will had been made before the passage of a statute, and the maker of the will died after its passage: it was held that the statute took effect upon the will, because thus it could pot affect any right that was vested before its passage. A will cannot take effect, or any rights be acquired under it, until the death of the testator. Wakefield v. Phelps, 37 N. H. 295; Perkins v. George, 45 N. H. 453; Pierce v. Richardson, 37 N. H. 306; Annable v. Patch, 3 Pick. 360; Cushing v. Aylwin, 12 Met. 169; De Peyster v. Clendining, 8 Paige 295; Bishop v. Bishop, 4 Hill 138.

Statutes that change or regulate the laws of descent, which provide who shall or shall not be the heirs to the estates of those who may die intestate after such change or regulation, or what shall be the con- ■ struction and effect of wills, no matter when made, where the testator dies after the passage of the law, are not retrospective in their operation, because none can require any rights as heir at law, or as legatee or devisee under a will, until the decease of the testator or intestate.

In Maine, the legislature, by a resolve of March 19, 1821, made valid and legal a certain class of marriages which were not legal before. In Brunswick v. Litchfield, 2 Greenl. 28, it was held that this resolve was constitutional, so far as it was to take effect in the future, and that derivative settlements of paupers must be thereafter determined according to the new law, or as though the marriage had been valid originally, but that such derivative settlement thus gained could not operate to oblige the town, thus newly charged with the paupers’ support, to pay for supplies furnished prior to the passage of the resolve. To the same effect is Lewiston v. North Yarmouth, 5 Greenl. 66. Goshen v. Stonington, 4 Conn. 210, is to the same effect;—and see Carroll v. Carroll, 20 Texas 731, 746; Shelton v. Shelton, Adm'r, 25 Georgia 636; Hunt v. Hunt, 37 Maine 333.

In Massachusetts, by their Revised Statutes of 1836, chapter 61, section 4, it was provided that “ where, after the birth of an illegitimate child, his parents shall intermarry, and his father shall after the marriage acknowledge him as his child, such child shall be considered legitimate,” &c. In the Laws of 1853, chapter 253, section 1, was the following provision: “ Where, after the birth of an illegitimate child, his parents have intermarried, or shall intermarry, and his father has acknowledged or shall after the marriage acknowledge him as his child, such child shall be considered legitimate,” &c. Monson v. Palmer, 8 Allen 551.

In the statute of this State, which we are considering, the language is less explicit than in either of the statutes referred to in Massachusetts. There would seem to be no doubt that their law of 1836 applied only to births, marriages, and recognitions that should be subsequent to the law; while it is equally plain that their law of 1853 applied to all cases, past and future, and was equally free from constitutional objection there, and would have been under our constitution, so long as the law had and could have no force or effect until after its passage, and could not relate back to affect any right that had become vested before or at the time of its passage.

The only question is, What did the legislature mean by the language they used in constructing this statute ? It is not very clear; but we are inclined to the opinion that they did not intend to make a law so broad and sweeping as that of Massachusetts, passed in 1853. If that had been their real intention, we cannot see any reason why they should not have used language equally broad, plain, and explicit. We think that such an intention qn the part of the legislature is not sufficiently apparent from the language they used to warrant the court in giving to the statute so broad a construction.

Judgment for the petitionees for costs.