I cannot agree with the majority of the court in the decision of the issue presented by this case. It is said that when the Dower act was passed and thereafter until 1922, *Page 50 every woman who might lawfully be naturalized became an American citizen upon her being married to a citizen of this country. This is not true if the first and second sections of the Dower act are considered as having been adopted in 1845. Prior to the passage of the second section of the act of Congress of February 10, 1855, (10 Stat. at L. 604,) the provision was made by an act of 1804, (2 Stat. at L. 292,) that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States and entitled to all rights and privileges as such upon taking the necessary oath. (Minor v. Happersett, 21 Wall. 162,22 L. ed. 627.) But the provision entitling an alien woman to citizenship upon her marriage to a citizen, was not made until the act of 1855. If the rule of law be recognized that the re-enactment of sections 1 and 2 of the Dower act in 1874, worked a continuation of the previous law, alien widows of citizens would not be entitled to dower if such alien woman married a citizen after September 22, 1922, when Congress did away with naturalization of alien women by their marriage to citizens.
Cooke v. Doron, 215 Pa. 393; Breuer v. Beery, 194 Iowa, 243, and Emmett v. Emmett, 82 Tenn. 369, are relied on to sustain the conclusion that dower is more a matter of descent than a matter of purchase, in considering the nature of and acquisition of the estate of dower.
While the opinion of the majority recognizes the fact that the decision in the Cooke case was based on a Pennsylvania statute, still that decision is quoted from at length on the very point that rights acquired in real estate by a surviving spouse are created by descent rather than by purchase. The holdings in Illinois have been uniform to the effect that dower is created by purchase and not by descent.
There is no existing statute in Illinois which expressly provides that an alien widow of a deceased citizen shall *Page 51 be entitled to dower. The appellee's right to dower, if it exists, must be determined by a construction of the Dower and Alien acts. At common law, both in England and in our country, alien widows were not entitled to dower. (Sisk v. Smith, 1 Gilm. 503; Proctor v. Titcomb, 22 Me. 300; Priest v. Cummings, 20 Wend. (N.Y.) 338; 2 Blackstone's Com. (12th ed.) p. 130.) We have held that our Dower act merely recognizes, and in a few respects modifies, the common law, and that, therefore, dower is not primarily a creature of statute. (Canavan v. McNulty, 328 Ill. 388; Steinhagen v. Trull, 320 id. 382; Sisk v. Smith, supra.) Since alien widows were not entitled to dower at common law they are not entitled to dower in this State unless it is expressly or impliedly granted by our statutes.
Section 1 of "An act concerning the rights in real and personal property accruing by reason of the marital relation," commonly known as the Dower act, approved March 4, 1874, as amended by an act approved June 24, 1927, (Laws of 1927, p. 406; 41 S.H.A. 1; State Bar Stat. 1935, chap. 41, par. 1;) abolishes the estate of curtesy and provides that the surviving husband or wife shall be endowed of one-third of all lands of which the deceased spouse was seized of an estate of inheritance at any time during the marriage, unless the same shall have been released in legal form. Equitable estates are also made subject to dower, and by the amendment of 1927 to this section, except where the deceased spouse died intestate, the surviving spouse is given one-third of the personalty if there are children and one-half of the personalty if there are no children. The personal property is made subject to the just debts and claims against the deceased's estate. By section 2 the surviving husband or wife of an alien is given the right to dower the same as if such alien had been a native-born citizen of the United States. *Page 52
Statutes similar to section 1 of the Dower act have been in effect in this State when aliens were forbidden to own real estate. The first enactment of the present sections 1 and 2 of the Dower act was in 1845. The Revised Statutes of 1845 (at page 198) show that section 2 is identical with the present section 2, and that section 1 is the same except that it then was applicable to widows alone and did not contain the provisions with reference to personal property. The Alien act of 1845 (Rev. Stat. 1845, chap. 4, p. 47,) conferred the right to take lands, and to alienate, sell, assign and transmit the same, upon "all aliens residing within this State," but there was no provision that entitled the widow of an alien to dower. To meet this, section 2 of the Dower act was adopted in that year. It is clear from this that section 1 of the Dower act was not intended to apply to widows of aliens. In addition there were provisions in the statutes during the time sections 1 and 2 of the Dower act have been in force, denying the right to non-resident aliens to take and hold title to lands in this State. Thus, the Alien act of 1887 (Laws of 1887, p. 5,) made non-resident aliens incapable of acquiring title to or taking or holding land in this State, except that the heirs of aliens who had theretofore acquired lands in the State under the laws thereof, and the heirs of aliens who might acquire lands under the act of 1887, were permitted to take such lands by devise or descent and hold title for three years if such alien was then twenty-one years old, and if of less age then for five years.
At common law aliens had no inheritable blood and were incapable of taking by inheritance. The laws of 1819, page 6, made it lawful "for any foreigner or foreigners, alien or aliens, not being the legal subject or subjects of any foreign State or power, which is or shall be at the time or times of such purchase, at war with the United States of America, to purchase lands, tenements *Page 53 and hereditaments within this State, and to have and hold the same to them, their heirs and assigns forever," the same as a native-born citizen might do. The revised laws of 1827, page 49, gave aliens the right to hold lands in the same manner as citizens, and made express provision that alien widows should have the right to dower, but this act was repealed in 1845 and never re-enacted. The act of 1845 (Rev. Stat. 1845, chap. 4, p. 47,) conferred the right to take lands, and to alienate, sell, assign and transmit the same, upon "all aliens residing in this State." By the act of 1851 (Laws of 1851, p. 149,) the words "residing in this State," after the words "all aliens," were omitted from the foregoing provision, so as to confer upon all aliens the right to take lands by deed, will or otherwise, and to alienate, sell, assign and transmit the same, whether they resided in Illinois or elsewhere. The act of 1887, as we have already pointed out, deprived non-resident aliens of this right, with the exceptions we have already noted.
The act now in force is that of 1897. Section 1 thereof (Laws of 1897, p. 5; 6 S.H.A. 1; State Bar Stat. 1935, chap. 6, par. 1;) provides: "All aliens may, subject to the further provisions of this act, acquire and hold title in fee simple, or otherwise, to lands, tenements and hereditaments, situate in this State, by deed, devise or descent, and may alienate, sell, assign, encumber, devise and convey lands, tenements and hereditaments, whether the same have been heretofore or be hereafter acquired, and the title to any lands of which an alien may die seized or possessed intestate, shall descend to the heirs-at-law, and no person shall be deprived of his right to take title to real estate as heir-at-law by descent from any deceased person because he may be an alien or be compelled to trace his relationship to such deceased person through one or more aliens." By section 2 of the present act the right of an alien to hold title to real estate is limited *Page 54 to six years; if such alien is a minor it is six years after he becomes of age. The other sections of this act are not material to the case before us.
Referring again to the Dower act, the precise point has not been presented to this court, but in passing on a similar act the Supreme Judicial Court of Massachusetts, in Foss v. Crisp, 20 Pick. 121, said: "The statutes of the commonwealth touching the descent of any real estate were intended to apply to citizens and not to aliens, unless they were particularly named. For example, by the statute of 1783, (chap. 36, par. 4,) it is provided that the widow of the deceased shall in all cases be entitled to her dower in the real estate of her husband. Now that provision was intended to apply to widows who were citizens of the commonwealth, and not to alien women who were widows."
In Wunderle v. Wunderle, 144 Ill. 40, a somewhat similar situation arose, although not under the Dower act. A suit for partition was there filed by the non-resident alien heirs of a citizen. The 1887 Alien act was then in force, and section 1 of it provided that non-resident aliens should not be capable of acquiring title to or taking or holding any lands or real estate in this State by descent, devise, purchase or otherwise, except that the "heirs of aliens who have heretofore acquired lands in this State under the laws thereof and the heirs of aliens who may acquire lands under the provisions of this act may take such lands by devise or descent and hold the same for a space of three years," etc. We refused to allow the alien heirs of a citizen to partition the lands of which he died seized. At page 61 of that decision we said: "It is urged that the act of 1887 should be liberally construed, and that such liberal construction would have the effect of extending the exception named in section 1 to the alien heirs of citizens, as well as to the heirs of aliens. In other words, we are asked to so construe the exception as to give the non-resident alien kindred *Page 55 of citizens the right to take lands by descent or devise, and hold the same for three or five years so as to make sale, or acquire an actual residence in the State. This would involve the insertion of the words `and the alien heirs of citizens' after the words `except the heirs of aliens.' By such a construction we would make the legislature say what it has not said. It is not the province of the judiciary to make laws, but to construe and interpret them and pass upon their validity." The Wunderle case is cited with approval and followed in State v. Toop,107 Neb. 39, 186 N.W. 371.
In Mick v. Mick, 10 Wend. (N.Y.) 379, it was held that under the New York statutes then in force an alien widow of a citizen could not take dower, although, had the husband been an alien, she would have been so entitled. To the same effect are the cases of Priest v. Cummings, 20 Wend. (N.Y.) 338, Connelly v. Smith, 21 id. 58, and Currin v. Finn, 3 Denio, (N.Y.) 229.
In my judgment the first section of the Dower act refers only to citizens. To adopt appellee's construction of the statutes would compel us to amend the Dower act by legislating into it a further provision giving alien widows of citizens the right to dower, just as we said we would be forced to do in the Wunderlecase with reference to the Alien act if we permitted the non-resident alien heirs of a citizen to take title to his lands by descent. The majority decision herein has pointed to no provision of the statutes which removes the common law bar against her and permits her to take dower.
This court discussed the nature of dower in the case ofSutherland v. Sutherland, 69 Ill. 481, and said: "The right of dower exists independently of the rights of the heir, and it is in no way affected by them. The right to dower is perfect where there has been an ownership in real estate by the husband during coverture, and the wife survives *Page 56 the husband, although the ownership by the husband may have been but momentary. The inchoate right to dower attaches the moment the husband's right to the realty attaches, during coverture, and he cannot convey or encumber the property so as to divest or prejudice that right, without the wife's consent, given in the manner provided by statute; nor can his creditors, by any proceeding to be instituted by them, destroy or impair the right. The heir, on the other hand, has no interest whatever in the property until the intestate's death, nor can it even be known, certainly, until that event shall have happened, who will be the heir. The inheritance may be conveyed away by the intestate in his lifetime, or it may be exhausted by creditors after his death, so as to deprive the heir of everything to which he might otherwise be entitled. The dissimilarity in the origin, character and duration of the two estates must be plain to every apprehension; and we cannot presume that words strictly descriptive of the one would be used to describe the other."
Descent is hereditary succession to an estate in realty. It means the title by which one person, upon the death of another, acquires the real estate of the latter as his heir-at-law. (Adams v. Akerlund, 168 Ill. 632; Beavan v. Went, 155 id. 592;Meadowcroft v. Winnebago County, 181 id. 504, 507; Priest v.Cummings, 20 Wend. (N.Y.) 338.) When the legislature provided in section 1 of the Alien act of 1897 that aliens could take property by deed, devise or descent it did not confer the right of dower upon the alien spouse of a deceased citizen for the reason that the word "descent" cannot be given any other than its legal meaning. The language of the present act is not as liberal or broad as that used in the earlier alien laws, which provided that land acquired by any means could be held by aliens in all respects as if they were United States citizens. We must presume that the legislature knew the legal meaning of the terms used in the present Alien act and used them designedly. *Page 57 The naturalization of appellee after the death of her husband could not give her a dower right which she did not possess at his death.
Mr. JUSTICE STONE concurs in this dissent.