The statute of Washington Territory of November 14, 1879,
providing that one-half of community property of husband and wife
should be subject to the testamentary disposition of the husband or
wife, subject respectively to the community debts, and, in default
of such testamentary disposition, that the share of the deceased
husband or wife should descend to his or her issue, and if there
was no such issue should pass to the survivor, does no violation to
the Constitution of the United States, when applied to such
community property held under the statute of that Territory of
November 14, 1873, which provided that property acquired after
marriage by either husband or wife, except such as might be
acquired by gift, bequest, devise or descent, should be common
property, of which the husband should have the entire management
and control, with the like absolute power of disposition as of his
own separate estate.
This case involves the title to a lot of land in the City of
Tacoma, in the State of Washington. The pertinent facts presenting
the controversy are as follows:
Prior to 1877, Eli G. Bacon and Sophia D. Bacon were husband and
wife and citizens and residents of the then Territory of
Washington. In the year named, Bacon, the husband, with community
funds, that is, with money acquired after his marriage with his
wife, Sophia D. Bacon, purchased the real estate in question and
took title thereto in his own name, the property being used as the
residence of the husband and wife.
At the time of the purchase, the laws of the Territory of
Washington provided, with reference to community or "common"
property, as it was termed in the earlier statute, as follows: by
an Act approved November 14, 1873 (Laws of 1873, Wash. Terr. p.
450), the property acquired after marriage by either husband or
wife, except such as might be acquired by gift, bequest, devise, or
descent, was declared to be "common property," and it was further
provided that the husband should have the entire management and
control of such property,
Page 176 U. S. 485
"with the like absolute power of disposition as of his own
separate estate." There was also in force an Act approved November
12, 1875 (Laws of 1875, Wash. Terr. p. 53), providing that, upon
the death of the husband or wife, the whole of the "community"
property, subject to the community debts, should go to the
survivor.
Subsequently to the purchase of the real estate in question, by
an Act approved November 14, 1879 (Laws of 1879, Wash. Terr. p.
77), it was, however, provided that one-half of the community
property should be subject to the testamentary disposition of the
husband or wife, subject respectively to the community debts, and
in default of such testamentary disposition that the share of the
deceased husband or wife should descend to his or her issue, and if
there was no such issue, should pass to the survivor. On July 28,
1880, Mrs. Bacon died intestate, leaving surviving her the
following children, her only heirs at law,
viz., Matilda
B. White and Amelia McDonald, two daughters by a first marriage,
and Ellen T. Nelson, a daughter by the marriage with Mr. Bacon.
In August, 1892, twelve years after the death of his wife, Bacon
became indebted to Stanton Warburton, plaintiff in error, and the
latter recovered a judgment upon such indebtedness in April, 1895.
Upon an execution issued on the judgment, a judicial sale was made
on March 2, 1896, to Warburton of the interest of Mr. Bacon in the
property in controversy, and -- after confirmation by the court and
the expiration of the time allowed by law for redemption -- a deed
was duly made to Warburton by the Sheriff of Pierce county,
Washington, on May 4, 1897. Twenty days thereafter, Warburton
instituted an action in the Superior Court of said Pierce County
against the aforementioned children and heirs of Mrs. Bacon, to
quiet his title to said lot against alleged adverse claims of said
heirs. A joint answer to the complaint was filed on behalf of all
the defendants setting up the facts as to the acquisition of the
property by Bacon, the death of Mrs. Bacon intestate while the
title to the community property was still in Bacon, and asserting
that the defendants had an undivided interest therein as heirs of
their mother.
Page 176 U. S. 486
Thereafter, on October, 12, 1897, Mrs. Nelson conveyed to the
plaintiff whatever interest she had in the property. An amended
answer was filed on behalf of the two remaining defendants,
reiterating the main allegations of the former answer, setting up
that the defendant, Amelia McDonald, for a valuable consideration,
had sold and conveyed to her co-defendant and sister, Mrs. White,
before the commencement of the action, all her interest in said
real estate, and it was prayed that the latter might be adjudged
the absolute and unqualified owner in fee simple of an undivided
one-third of the property. A reply was filed to this amended answer
admitting that the lot in question was purchased with community
funds, "and that the said property became then and there the
community property" of Mr. and Mrs. Bacon, and that Bacon still
held title thereto on the decease of his wife.
The cause was heard by the court without a jury upon an agreed
statement which embodied the facts above recited, and the
additional fact that intermediate the purchase by plaintiff at the
sheriff's sale and the purchase by him from Mrs. Nelson, Bacon had
died intestate. Each of the parties submitted conclusions of law to
be deduced by the court from the facts stated. To a proposition
submitted for the defendant upholding her claim to an undivided
one-third interest in the property, the plaintiff duly excepted as
follows:
"II. Plaintiff excepts to the proposed conclusion of law
numbered II on the ground that it is contrary to the findings of
fact and the law; on the further ground that, under the laws in
force at the time the property was purchased and the deed taken, E.
G. Bacon was the owner of the property, and was entitled to the
succession to all the property in case of the prior death of Mrs.
Bacon, and that at the death of Mrs. Bacon, in 1880, Mr. Bacon was
the owner in fee simple of all said property; that to give the law
of 1879, entitled 'An Act Regulating and Defining the Property
Rights of Husband and Wife,' approved November 14, 1879, the
construction, effect, and force given by the court, to-wit, that it
took away from Mr. Bacon the right of succession to the whole of
the property and the right to dispose of it, would be to
Page 176 U. S. 487
give it a retroactive force, contrary to § 31 of said act,
and to give it such a retroactive force and take away the right of
survivorship in said property and take away the right to dispose of
it would be contrary to article I, Section 10, of the Constitution
of the United States, in that it would impair the obligation of the
deed or contract by which Mr. Bacon acquired said property, and
would deprive said Bacon, his successors and assigns, of the right
of survivorship in the property in controversy, which was a vested
right under the contract or deed and the laws in force in the
territory at the time the property was acquired. Plaintiff further
excepts to said conclusion on the ground that if said law is given
said effect and force above mentioned, it would be depriving Mr.
Bacon, his successors and assigns of property without due process
of law, and contrary to and in contravention of amendments of the
Constitution of the United States, and plaintiff claims the
protection of both said provisions of the Constitution of the
United States."
The court decided as matter of law that the defendant Mrs. White
was, as claimed by her, the owner of an undivided one-third
interest in the property, and was entitled to a decree quieting her
title thereto. From the decree thereupon entered, so far as it
sustained the claim of said defendant, the plaintiff appealed to
the Supreme Court of the State of Washington. That court affirmed
the judgment and denied a petition for rehearing. 18 Wash. 511. A
writ of error having been allowed, the cause is now here for
review.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The law of the Territory of Washington approved
Page 176 U. S. 488
November 14, 1879, provided that in case of intestacy the share
of the deceased husband or wife in community property should pass
to the legal issue of the intestate, and in default of such issue
should go to the surviving husband or wife, as the case might be.
It is undoubted that, if the decision of this cause is to be
controlled by this enactment, there is no error in the record.
The error asserted is predicated on the claim that, under the
laws of the Territory of Washington existing at the time the
property was bought, there was in fact no such thing as community
property, since by those laws property bought during marriage with
community funds was subject to the disposition of the husband as if
it were his separate property, and he was entitled to the whole of
the community property in case of the death of his wife before him.
The effect of this state of the law in force at the time of the
purchase, it is claimed, was in substance to make him the real
owner of the property.
The argument is that, if the provisions of the law of 1879
previously referred to, conferring on the husband or wife
testamentary power to dispose of his or her interest in the
community property subject to the community debts, and also
providing that in case of intestacy such interest, subject to the
debts aforesaid, should descend to the children of the deceased and
should only pass to the survivor in default of issue, be given a
retroactive effect so as to be operative upon property acquired
before the act of 1879, the consequence will be to impair the
obligations of the contract of purchase made by the husband, which
is at issue in this case, and besides to deprive him of his
property without due process of law. This, it is asserted, will be
the necessary legal effect, since to cause the statute of 1879 to
be operative upon community property bought by the husband before
the enactment of that statute will be the equivalent of giving to
one person the testamentary power to dispose of the property of
another person, or in the absence of a will amounts to providing
that the death of one person intestate shall transmit to the issue
of such person property not owned by the deceased intestate, but
which belongs to another and distinct living person.
Page 176 U. S. 489
It is manifest that this proposition rests upon the assumption
that the act of 1873, which was in force when the property was
bought by the husband with community money, made the property so
bought solely and exclusively that of the husband, and hence that
the wife had no community interest in it. This follows because if,
under the act of 1873, the wife had a community interest in
property bought with funds of that character, then the transmission
of the wife's estate in accordance with the act of 1879, and
contrary to the rule of descent provided by the act of 1875, in
force at the time the property was purchased, cannot possibly bring
about the consequences upon which the argument is based. The result
just stated must be the case since if, when the property was
acquired, the wife had an interest in it, the mere change of the
law or rule of inheritance existing when the property was bought
would be lawful. Manifestly the proposition that the Territory of
Washington had a right to regulate both the power of testamentary
disposition of property and the passage thereof in case of
intestacy is too elementary to require more than mere
statement.
The fallacy which is involved in the contention that, under the
laws in force at the time the property was bought by the husband
with community money, it became exclusively his, and that the wife
had no community interest therein, is plainly demonstrated by a
consideration of the import of the laws of Washington existing at
the time the purchase was made, as construed both by the supreme
court of the territory and of the State of Washington. To these
adjudications we shall now refer.
The nature of common or community property within the Territory
of Washington, as such property was constituted by the act of 1873,
and the operation of the act of 1879 upon property of that
character acquired prior to the passage of the latter act, was
considered in 1882 in the case of
Holyoke v. Jackson, 3
Wash.Terr. 235. The question for decision in that case was whether,
while the act of 1879 was in force, a husband could, without his
wife joining, make a valid contract to sell community property
acquired prior to 1879. In deciding
Page 176 U. S. 490
this question in the negative, the court, in the course of the
opinion, said (p. 238):
"By the provisions of the husband and wife acts passed in 1879
and previously, the husband and wife are considered as constituting
together a compound creature of the statute called a community. . .
. In it, the proprietary interests of husband and wife are equal,
and those interests do not seem to be united merely, but unified;
not mixed or blent, but identified. It is
sui generis -- a
creature of the statute. By virtue of the statute, this husband and
wife creature acquires property. That property must be procurable,
manageable, convertible, and transferable in some way. In somebody
must be vested a power in behalf of the community to deal with and
dispose of it. To somebody it must go in case of death or divorce.
Its exemptions and liabilities as to indebtedness must be defined.
All this is regulated by statute. Management and disposition may be
vested in either one or both of the members. If in one, then that
one is not thereby made the holder of larger proprietary rights
than the other, but is clothed, in addition to his or her
proprietary rights, with a bare power in trust for the community.
This power the statute of 1873 chose to lay upon the husband, while
the statute of 1879 thought proper to take it from the husband and
lay it upon husband and wife together. As the husband's, 'like
absolute power of disposition as of his own separate estate,'
bestowed by the ninth section of the act of 1873, was a mere trust
conferred upon him as a member and head of the community in trust
for the community, and not a proprietary right, it was perfectly
competent for the legislature of 1879 to take it from him and
assign it to himself and his wife conjointly. This was done."
In 1893, the Supreme Court of the State of Washington, in the
case of
Hill v. Young, 7 Wash. 33, considered the nature
of common or community property under the act of the territory
approved December 2, 1869, defining the rights of husband and wife.
The provisions of the acts of 1869 and 1873, it may be added, were
identical, the act of 1869 having been repealed by an act passed in
1871. The suit was for partition
Page 176 U. S. 491
of land which had been acquired by a husband with community
funds, while the act of 1869 was in force. The husband still held
title to the community property in 1883, when the wife died,
leaving a child and her husband surviving. It was contended that
the power to dispose of the common property conferred by section 2
of the act of 1869 upon the husband was a vested right which could
not be taken away by any subsequent statute. Replying to this
contention, the court said (p. 38):
"But it is not necessary to decide this point. The act of 1869,
having declared certain property 'common property,' did not make
provision for the disposal of such property upon the death of
either spouse, as was done by later laws on the same subject; but
we think that, without anything further than was contained in that
act, the courts of the territory would have been bound to
administer upon such property, after the death of husband or wife,
according to the established rules of those states and countries
where common or community property laws had existed. The first and
cardinal of such rules was that the community was dissolved by the
decease of either spouse; next, the right of disposal in either
spouse was ended; and third, the property became vested by moieties
in the survivor and the children. Therefore, upon the death of Mrs.
Hill in 1883, even if the act of 1869 was the only law applicable
to this land, the right of the husband to dispose of the whole
estate terminated."
In the subsequent case of
Mabie v. Whittaker, 10 Wash.
656, the provisions of the law of 1869 were again considered. Land
had been purchased on August 10, 1871, by one Mabie, with community
funds, during the existence of the act of 1869. While Mabie held
the legal title, the legislature repealed the act of 1869, and on
November 29, 1871, and act was approved which, in section 12,
provided that the husband should have the management of all the
common property, but should not have the right to sell or encumber
real estate without the joinder of his wife. By section 22, it was
provided that common property should be partnership property, and
that the share of the wife should be one-half thereof, and should
be to
Page 176 U. S. 492
her and her heirs forever. On October 25, 1874, after the death
of his wife leaving issue, Mabie executed a deed purporting to
convey all of the land to one Hallett. Ejectment was brought by the
surviving child to be let into possession of the land as tenant in
common, etc. It was contended for the defendants that, whatever the
nature of the interest of Mrs. Mabie in the land, the right of
Mabie under the act of 1869, in force when the land was purchased
and title taken by Mabie, to convey the entire title, could not be
impaired by subsequent legislation. The court, however, said (p.
658):
"But, leaving out of consideration all question as to whether he
could only exercise such right while his wife was living, and could
not convey the entire title, under the former law, after her death,
and cut off her heirs, we think the subsequent act took away his
power to do so. It was immaterial whether the record title to the
community lands stood in the name of the husband or of the wife, or
of both of them, when considered with reference to the power of the
legislature to authorize either or both of them to convey. The
legislature could as well have provided that the wife could convey,
as the husband, and if it had power to say that either could
dispose of the community interest of the other, it could say that
neither could do so. Changing the manner of the conveyance did not
alter the status of ownership. It could not make the interest of
either spouse in community lands greater or less. Furthermore,
prior to the conveyance to Hallett, the community in question had
been dissolved by the death of the wife, and at the time of her
death, the law of 1871, relating to the descent of community
property, was in force. Laws 1871, p. 73; sec. 22; Abb. Real
Prop.Stat. p. 478, provided that:"
" The common property being partnership property, the wife's
share shall be one-half thereof and shall be hers and her heirs
forever, and her share of the common property may be increased so
as to be more than one-half, by the wife's compliance with the
provisions of section five of this act."
In the course of the opinion, discussing and overruling a
further contention, based upon the common law, that Mabie and wife
held the land in question as joint tenants with a right of
survivorship, the court said (p. 659):
Page 176 U. S. 493
"The act of 1869 did not fix the status of such property, other
than to declare it to be common property, and made no provision for
its descent. Nor was there at that time, nor for some time
thereafter, any express legislative recognition of estates in joint
tenancy."
"
* * * *"
"The statute of 1871 did not undertake to divest any right which
had become vested. Mabie, receiving this conveyance under the act
of 1869, thereby became the owner of an undivided one-half interest
in the land, and his wife thereby became the owner of the other
half. He right was as much a vested right as his. Under the weight
of authority, the legislature had power to change the law of
descent, and could take away the right of survivorship, as to
estates in joint tenancy, and make the same applicable to lands
already acquired. Cooley Const.Lim. 5th ed. 440, 441; Freem. Coten.
sec. 36, and cases cited by each; also
Miller v. Dennett,
6 N.H. 109. Section 22, aforesaid, is substantially a statute of
descent. It has the technical and apt words of such a statute,
'hers and her heirs forever,' which indicate the legislative
intent. There was also a general statute of descent in force, which
could more logically be applied to community estates than could the
doctrine of joint tenancy. St. 1862, p. 261; Abb. Real Prop. Stat.
pp. 375-378. Subsequently, another act was passed to regulate the
descent of real Laws 1875, p. 55. Section 2 provided: 'Upon the
death of husband and wife, the whole of the community property,
subject to the community debts, shall go to the survivor.' This
statute continued in force until November, 1879, when an act was
passed (Laws, 1879, p. 77), section 13 of which was as
follows:"
" In case no testamentary disposition shall have been made by
the deceased husband or wife of his or her half of the community
property, it shall descend equally to the legitimate issue of his,
her, or their bodies. It there be no issue of said deceased living,
or none of their representatives living, then the said community
property shall all pass to the survivor subject to the community
debts, and to the exclusion of collateral heirs, the family
allowance, and the charges and expenses of administration. "
Page 176 U. S. 494
"In neither of these acts were community lands referred to as
being held in joint tenancy, and the only reference of the kind
thereto is contained in the act aforesaid, passed in 1885,
subsequent to all of them."
Next discussing the proposition that a partnership was not a
joint tenancy, the court, after calling attention to the fact that
by the act of 1871, provision was made for the descent of the
wife's share in community property, thus cutting off the husband's
right of succession as survivor, concluded on that branch of the
case as follows (p. 662):
"We know of no instance, judicial or otherwise, where such
doctrine of joint tenancy has been recognized or applied, in the
history of the state and territory, and none has been called to our
attention. We are of the opinion that the universal belief and
course of acting has been contrary thereto, and that the right of
taking by survivorship has at no time existed, as to community
lands, here, except under the statute of 1875, providing for such
descent."
The rule announced in the foregoing cases was reiterated in the
opinion delivered in the case at bar, it being held that Bacon did
not become the sole owner of the property in question by the
purchase in 1877, but that it became and continued community
property so long as the community existed, and that the descent of
such property was subject to regulation at will by the
legislature.
Now it cannot in reason be denied that the decisions from which
we have just quoted held that the purpose of the legislature of
Washington, whether territorial or state, in the creation of
community property was to adopt the features essentially inhering
in what is denominated the community system -- that is, that
property acquired during marriage with community funds became an
acquet of the community, and not the sole property of the one in
whose name the property was brought, although by the law existing
at the time the husband was given the management, control, and
power of sale of such property. This right being vested in him not
because he was the exclusive owner, but because, by law, he was
created the agent of the community. The proceeds of the property,
when
Page 176 U. S. 495
sold by him, becoming an acquet of the community, subject to the
trust which the statute imposed upon the husband, from the very
nature of the property relation engendered by the provision for the
community.
The argument of the plaintiff in error then comes to this: that
although the statutes of the Territory of Washington, which were
continued in force within the state on the organization of the
state government, have been construed by the state court contrary
to the view now urged upon this Court, nevertheless this Court
should disregard such judicial construction and treat the statutes
as conferring rights which the highest tribunal of the state has
held never arose from them. It is claimed that where a contract is
asserted to have been impaired by a subsequent statute it is the
duty of this Court to determine for itself the nature and extent of
the contract, where the subsequent legislation has been by the
decision of the court held operative upon or enforced against the
alleged contract rights. The doctrine is elementary, but the
principle which it embodies is subject to a well settled
qualification, which is that where it is asserted that a contract
has been entered into on the faith of the state laws existing at
the time when it was made, the construction of such laws, which was
settled at the time of the making of the contract, by the court of
last resort of the state, will be adopted and applied by this Court
in considering the nature of the contract right relied upon. This
rule, however, it is argued, is not applicable in this case,
because it is said that all the decisions of the Supreme Court of
Washington referred to were announced since the contract of
purchase by the husband was made, and therefore the interpretation
which these decisions expound cannot be considered as having
entered into and formed a part of the contract, since they were not
in existence when the contract was made. From this it is argued
that the decisions in question do not, therefore, relieve this
Court of the duty of interpreting for itself, as a matter of first
impression, the laws of the Territory or of the State of Washington
which are here involved, and upon the faith of which, it is
asserted, the obligations arising from the contract took being.
While, abstractly considered, the proposition is conceded,
it
Page 176 U. S. 496
is not apposite to the controversy here presented. The rule is
subject to a limitation, which is that where state decisions have
interpreted state laws governing real property or controlling
relations which are essentially of a domestic and state nature --
in other words, where the state decisions establish a rule of
property -- this Court, when called upon to interpret the state
law, will, if it is possible to do so, in the discharge of its
duty, adopt and follow the settled rule of construction affixed by
the state court of last resort to the statutes of the state, and
thus conform to the rule of property within the state. It is
undoubted that this rule obtains even although the decisions of the
state court, from which the rule of property arises, may have been
for the first time announced subsequent to the period when a
particular contract was entered into.
Burgess v. Seligman,
107 U. S. 20,
107 U. S. 34;
Miller v. Ammon, 145 U. S.
423.
Applying the principle just stated to the case before us, we
feel no hesitation in construing the contract of purchase which is
here in question in accordance with the nature and extent of
community property, as settled by the decisions of the Supreme
Court of Washington interpreting the laws which were in existence
when the purchase was made. Obviously the reasoning of the
plaintiff in error, upon which the assumption that community
property bought during the existence of the act of 1873 was solely
the property of the husband involves not only a contradiction in
terms, but invokes at the hands of this Court, in order to
overthrow the rule of property in the State of Washington, an
interpretation of the statutes of that state which is not only
confusing, but self-destructive. It cannot be doubted, under the
text of the act of 1873, the property relations of husband and wife
were controlled by what is denominated the community system, and
that in consonance therewith the statute referred to treated
property acquired during marriage with community money as community
or common property. Although this is patent, the argument is that
the provision in the statute giving the administration and
disposition of the community property to the husband operated to
destroy the community system and render it impossible, under the
statute, for community or common property
Page 176 U. S. 497
to exist. In other words, the interpretation relied upon asked
us to say that because of a provision which simply pointed out how
common property should be administered, it resulted that there was
no common property to be administered. This would be but to declare
that the statute brought about a result which was contrary to its
express language, providing for the existence of the community
system. It is a misconception of that system to suppose that
because power was vested in the husband to dispose of the community
acquet during marriage as if it were his own, therefore by law the
community property belonged solely to the husband. The conferring
on the husband the legal agency to administer and dispose of the
property involved no negation of the community, since the common
ownership would attach to the result of the sale of the property.
As the property in question had not been sold by the husband, but,
on the contrary, was held by him at the date of the death of the
wife, no question is presented on this record of the nature and
scope of his authority during the existence of the marriage, and we
intimate no opinion on that subject.
We have been cited to a decision of the Supreme Court of
California,
Spreckels v. Spreckels, 116 Cal. 339,
construing an act somewhat similar to the Washington act of 1873,
which it is claimed is in conflict with the views enunciated by the
courts of Washington in determining the proper construction of the
statute of 1873 and the nature of an estate vested in a husband by
virtue of that act. But the case referred to involved only the
validity of the exercise by a husband, during the existence of a
community, of the power of dominion and control over the community
property, and the right of the legislature to modify such authority
and control with respect to prior acquired community property. We
are therefore unable to perceive the pertinency of that decision to
the question arising for determination on this record, and we need
not therefore review or consider it.
There being no error in the judgment of the Supreme Court of the
Washington, that judgment is
Affirmed.
