Stilphen v. Stilphen , 65 N.H. 126 ( 1889 )

The act of July 21, 1809, provided that all devises and conveyances of real estate to two or more persons shall be taken deemed, and adjudged to create estates in common and not in joint tenancy unless an intent to create joint tenancy is clearly expressed. Laws, ed. 1830, p. 110; G. L., c. 135, s. 14. The legislature plainly declared their purpose that the act should be applied to grants "which have been" as well as those which "shall be made," with a proviso that it should not affect any estate that had "already vested in the survivor or survivors upon the principle of joint tenancy." It has been held that such an act impairs no legal right. Miller v. Dennett, 6 N.H. 109; Stevenson v. Cofferin, 20 N.H. 150; Cool. Const. Lim. 360 n. 3; Tiedeman Lim. of Police Power, ss. 116, 117; Hare Const. Law 823-829. Whether this view is correct (Wade Retro. L., ss. 28, 179-185) it is not necessary in this case to inquire. For an exact limitation of the retroactive operation of statutes upon equitable and inequitable rights, remedies and want of remedy, it would seem that there must be some comprehensive test prescribed by a legal principle that has not been clearly defined or generally established in the authorities.

Tenancy by entireties was not abolished by the act of 1809. Wentworth v. Remick, 47 N.H. 226. The question whether it is abolished by a statute enabling married women to hold property as if they were unmarried, on which there is a difference of opinion (Pray v. Stebbins, 141 Mass. 219, 223, Baker v. Stewart, 40 Kan. 442, Tiedeman Real Prop., s. 242, n. 5, Kel. Cont., s. 7), has been settled in this state in the affirmative. Clark v. Clark, 56 N.H. 105. But from usage, common understanding, and the generally unjust and unconstitutional character of retrospective laws, arises a fair inference of fact that a statute is designed by the legislature for future cases only, unless a retrospective intention is expressly declared or necessarily implied. The act of 1860 (c. 2342) is consistent with a purpose that its first section (G. L., c. 183, s. 1) should be applied only to property acquired after the law took effect; and therefore it is not applicable to the conveyance made to the plaintiff's father and mother in 1839. Atherton v. McQuesten, 46 N.H. 205; Phillips v. Eyre, L. R. 6 Q. B. 1, 23-27; Cool. Const. Lim. 370; Hare Const. Law 812; Wade Retro. L., ss. 34-50. After her death in 1881 the whole farm was her husband's by survivorship; and at his death in 1887 it passed by his will to two of the defendants.

Case discharged.

SMITH, J., did not sit: the others concurred.