Woodman v. Woodman , 54 N.H. 226 ( 1873 )

Ladd, J.

As to the personal property given by Samuel Chesley to his daughter Abigail before 1860, no serious question is made; and there would seem to be no doubt but that by the seventh section of the act of 1846 (Laws of 1846, ch. 827) it vested in her husband, Nathan Woodman, upon his taking administration on her estate, according to Atherton v. McQuestion, 46 N. H. 205.

The controversy is respecting the property, consisting chiefly of stocks, which Abigail took under her father’s will at some time later than August, 1860. On the one hand, it is contended by the appellant that, although this property came to Abigail Woodman after the act of 1860 (Laws of 1860, eh. 2342) took effect, and in such way that, by the terms of that act, she held it to her own use free from the interference and control of her husband, still, upon her dying intestate, its distribution is to be governed by the seventh section of the act of 1846, which gives the whole to the husband provided he takes administration. On the other hand, it is contended for the appellee that the aet of 1846, by its express terms, has relation only to property held by a married woman to her separate use by virtue of that aet; that it cannot fairly be regarded as an attempt by the legislature to lay down a general rule which should operate prospectively and control the distribution of property held by married women to their separate use by virtue of any future acts that might be passed; that the act of 1860 is to be regarded as a revision of the whole subject-matter of the act of 1846 ; that the intention was to repeal such parts of the earlier act as are not included in the later; that the provision of section 7 of the aet of 1846 is inconsistent with the absolute title and ownership conferred upon the wife by section 1 of the act of 1860, and is therefore expressly repealed by the repealing clause of that act. The printed arguments of the learned counsel on both sides are elaborate and exhaustive, and little seems to be left for the court but to weigh the various reasons thus urged upon our consideration.

It cannot be contended that property which came to a married woman after the act of 1860, in one of the ways specified in that act, was held by virtue of the act of 1846. Is it a fair construction of the phrase, “ holding property to her separate use by virtue of this act,” as used in section 7 of the act of 1846, that the provisions of that section are to be applied only to property the title and ownership of which is placed in the married woman by the force and effect of that particular statute ? or, would such a construction be too narrow, as argued by the appellant? and should it be held to mean all property held in the manner there pointed out, whether by force of that particular statute or any other which makes provision for the holding of property by married women to their separate use ?

We are of opinion that upon this point the weight of reason is quite decidedly in favor of the appellee.

The language used furnishes a strong argument against the view contended for by the appellant. If the legislature had intended to enact a general rule on the subject, which should be applicable to and govern the distribution in all cases, it is quite incredible that they would have carefully limited its application in the way they did, and for this purpose select the most apt words they could employ, to show that it should have relation only to property, the title to which was created in the married woman by the act itself. The use of the words, “by virtue of this act,” seems to indicate a consciousness on the part of the legislature that the act bore somewhat the character of an experiment, and a purpose carefully to limit the consequences of the experiment to the precise subject-matter upon which it was to take effect.

The legislation on this subject has been characterized by counsel on both sides as fluctuating and apparently experimental, and this seems to furnish a reason why the'provisions of one act, which are therein expressly limited in their operation to the act itself, should not be carried forward and ingrafted on another act covering substantially the same ground, when there is nothing in the subsequent act to indicate that such was the legislative intent.

It is unnecessary to repeat the argument of the appellee's counsel upon this point. We think it is in the main sound, and that the reasons then urged do not admit of a satisfactory answer.

It follows that this provision in the act of 1846 was in effect repealed by the act of 1860; and it makes no difference whether we say this practical result arises out of the fact that the earlier statute is inconsistent with the later, and so is expressly repealed, or that the later act covers the whole ground of the earlier, and so repeals by implication such parts of the earlier act as are omitted from it. The point is, that the earlier act provided a mode of distribution expressly limited to property held by virtue of the act itself, and so by its own terms it can have no application to property held by virtue of the later act, even though the general tenor and scope of the two may be similar. The former became of no effect, and so was practically repealed when the latter took away the subject-matter upon which it was to operate.

The conclusion is, that, so far as regards the property which came to Abigail Woodman by the will of her father, its distribution upon her death is not to be controlled by section 7 of the act of 1846, but goes to her next of kin according to the general law regulating the distribution of the estates of intestates.