State v. Ross and Vaughan.

guilt against all of them, they were all considered infamous, and for that reason incompetent apart from the question of interest: and as the first section removes incompetency for crime, it would seem to sweep away the rule as to parties of record, which is a mere corollary to it.

In State v. Ludwick, at this term, we had decided, before this case was called for argument, that a distinction is to be taken between those offences, where the acquittal of one is in legal effect the acquittal of the other, as in case of Principal and Accessory before the fact, Conspiracy, Fornication and Adultery, and those offences where one may be innocent and the other guilty.

These two cases put a full construction on the statute, and, whatever doubts we may entertain as to its wisdom we feel satisfied that we have discharged our duty in giving full effect to the intention of the law-makers.

It is unnecessary to notice the other exceptions. There is error. This will be certified.

PER CURIAM.

Ordered accordingly.

Hinton v. Hinton and others.

JANE C. HINTON v. RANSOM HINTON AND OTHERS.

The act of 1784 (R. C., c. 118, s. 1;) giving widows of testators six months in which to dissent from wills, is not a statute conferring a right of dower, but a 'statute of limitations' upon that right, as it existed at common law.

The act of February 1866, giving widows further time for dissenting, is constitutional, and applies to a case in which at its passage the widow was barred under the act of 1784.

All retroactive legislation is not unconstitutional.

Retroactive legislation is competent to affect remedies, but not to affect rights.

(Mitchener v. Atkinson, Phil. Eq., 23; Morris v. Avery, ante 238; Neely v. Craige, ante 187; Phillips v. Cameron, 3 Jon., 390, cited and approved.)

PETITION for dower, heard by Fowle J., at Fall Term 1867 of the Superior Court of WAKE.

The petition had been filed at May Term 1866 of the County Court of Wake, and alleged that the husband of the petitioner had died previously to November Term 1864 leaving a will which was proved at that Term; and that she had dissented at the Term at which the petition was filed, &c., &c.

The answer of the heirs (infants) relied upon the fact that the husband's will had been proved (with previous notice to her) as stated in the petition, for a bar to her power to dissent and claim dower, &c.

Upon the case being carried by appeal into the Superior Court, his Honor dismissed the petition, and the petitioner appealed to the Supreme Court.

Haywood, for the petitioner, cited and commented upon the Statutes contained in Rev. Code, c. 118, s. 1; Acts of 1861, (Sept, 11th,) c. 4, s. 18; 1863, (Feb. 16th,) c. 34, s. 1; 1866, (Feb. 21st) c. 50, s. 1; 1866, (Feb. 22d) c. 53, ss. 1, 2,

Hinton v. Hinton and others.

3; Ordinance of June 23d, 1866, (c. 19, s. 20) and of June 16th, (c. 26, ss. 1, 2, 3;) and upon Morris v. Avery, ante 238; Neely v. Craige, ante 187; Frost v. Etheridge, 1 Dev. 30; Pettijohn v. Beasley, 1 D. & B., 254; Craven v. Craven, 2 Dev. Eq., 338; and Mitchener v. Atkinson, Phil. Eq., 23.

Moore, contra.

The act of 22d February 1866, under which petitioner claims, divests vested rights; for, under the law which exists at a man's dissolution, death fixes the rights of the survivors; and subsequent legislation affecting those rights, disseizes some one of them "of his freehold, liberties and privileges," or deprives him of his "property." The rights of heirs or devisees just after their ancestor's or testator's death, are conferred by law, and are as if they existed by a special grant from the State. The State, therefore, cannot take them away or diminish them in favor of another citizen.

In maintaining these propositions the following authorities were relied upon: 2 Bl. Com., 199 et seq; Fletcher v. Peck, 2 Curt., 328; Pawlet v. Clarke, 3 Curt., 358; Terret v. Taylor, Ib. 259; Williamson v. Leland, 8 Curt., 228; Universi'y v. Foy, 2 Hay., 310; Allen v. Peden, 2 Repos., 638; Robeson v. Barfield, 2 Mur., 390; Hoke v. Henderson, 4 Dev., 1; Stanmire v. Welch, 3 Jon. 214; S. v. Glenn, 7 Jon. 324; Smith v. Whedbee, 1 Dev., 160; Caldwell v. Black, 5 Ire. 463; Burgwyn v. Devereux, 1 Ire., 583.

PEARSON, C. J. If a legacy be given to A, provided he applies for it in six months after the death of the testator, otherwise it shall go to B, and A does not apply within the time, the title becomes vested in B, and the Legislature has no power to extend the time; for the reason that the testator, by the words of condition and the limitation over

Hinton v. Hinton and others.

to B, makes a compliance with the condition a part of the essence of the gift, and being a condition precedent, it is not saved, even although the condition becomes impossible by the act of God, or by the act of law; and the title of B is absolute.

But we do not think this principle applies to the right of dower, or that that right is created by the act of 1784, with a condition precedent that when a husband by his will makes a provision for his wife, she shall within six months, after probate of the will, enter her dissent to the provision made for her, and that a compliance with this condition is made a part of the essence of the right of dower. On the contrary, we are entirely satisfied that the right existed at common law, and was not created by the act of 1784, and that the effect of the act is to prescribe a limitation in respect to the time in which the right shall be claimed, when the husband has by will made a provision for the wife; in other words, it is a "statute of limitations," which in such cases bars the right to a writ of dower, but does not extinguish the preexisting common law right of dower.

The right of the widow of every freeholder to have dower in all of the lands and tenements, of which her husband was seized at any time during the coverture, of an estate to which she might by possibility have had issue capable of inheriting, not only existed at common law, but it was paramount to all other rights, save those of the crown. Dower attached at the time of the marriage. It was superior to the title of the heir or devisee. It was superior to the claim of creditors, or of purchasers for value. It was superior to the right of the lord claiming by escheat, and by the stat ute 6 Edward VI. it is made superior to the right of the Crown by forfeiture, except in the case of high treason. There was no statute of limitations in respect to the right of dower, and after the "statute of uses" it was necessary to

Hinton v. Hinton and others.

pass the "statute of jointures" to prevent widows from keeping their jointures, and also claiming their common law dower.

In the course of time, Courts of Equity assumed jurisdiction to put widows to their election, when provision was made for them by the will of husbands and a claim to dower would disappoint the other provisions of the will, either to give up the right of dower or to release their right under the will. This doctrine of election is put on the ground that it is against conscience to claim under the will and also against it; but there is no limitation as to time, and the widow is entitled to a reference as to the condition of the estate in order to aid her in making the election. See Mitchener v. Atkinson, Phil. Eq., 23.

It was found in this State that the right of the widow to claim her common law dower, especially after the estate had been settled up, caused great inconvenience, as well to creditors as to devisees and legatees, and for this reason, and also to avoid the expense of resorting to courts of equity, it was provided by the act of 1784 that a dissent should be entered within six months after probate, or the right of dower should be barred. This statute answered a good purpose, and there was no objection to it in ordinary times, treating it as a "statute of limitations," for, during the six months, the widow had ample opportunity to inform herself as to the condition of the estate of her husband, and, if she found that she was not as well provided for under the will as by the law, or that her husband's estate was likely to be insolvent, she could without any reproach to his memory, prefer to take by law, as her dower was not subject to debts. But during the extraordinary times which we have had since May 1861, this statute of limitations, if enforced, would bear with extreme rigor upon widows. There has been an interruption of the courts, and such confusion generally, that no one