delivered the following dissenting opinion.
The question involved in this case is whether the distribution of the personal estate of an infant decedent-is to be made according to the rule prescribed for the descent of Ms real estate. This question is not, res integra in this State. It was determined imthe negative after argument and mature consideration in the case of Jones vs. Dexter, decided by this court in the year 1859. 8 Fla., 296.
The argument of counsel for appellants, the opinion of the majority of the court' in this case, and the dissenting opinion of Mr. Justice Baltzell in the case of Jones vs. Dexter, (8 Fla. 296,) are based principally upon an assumed similarity of the questions involved in this case, with the questions-involved in the cases of Tomlinson, et al. vs. Dillard, 3 Call, 98, decided by the Court of Appeals of Virginia in 1801, and of Dillard vs. Tomlinson, Wyatt et al., (1 Munf. 198,) decided by the same court in 1810. It is necessary therefore to enquire whether the cases are similar, and to a complete understanding of the subject it is essential that the history of the legislation in the two States in the matter of descents and distributions should be stated and compared.
In 1785, the Legislature of Virginia passed an act regulating descents, which Chief Justice Eeeve of Connecticut describes as “ an act drawn with great accuracy and legal science.” This act prescribed the same rule for the descent of the real estate of an infant as of an adult. In 1790, the Legislature of 'Virginia amended this act of 1785 and changed the rule of descent where an infant died having title to real estate of inheritance, by providing that the maternal kindred should take no share in the real estate derived *94by ^purchase or descent from the father, at the same time excluding the paternal kindred from any share in the real estate derived from the mother, saving in ail cases the right of ‘dower of the wife and the right of the husband as tenant by the courtesy. In 1792 a new act of descents was passed in ■Virginia incorporating these acts of 1785 and ’90 into one act. This is a brief statement of the legislation of Virginia upon the subject of descents up to the time at which the case in 3 Call arose. • The legislation in the same State reg- ■ ulating distributions was as follows: In 1785, and at the same session at which the act regulating descents was passed, an act regulating the distribution of the personal property of intestate decedents was passed, which provided that the surplus of chattels “ should be distributed in the same pro'porUo?is and to the same persons as lands were dvrected to 'descend in and by an act of the Gmeral Assembly, entitled an actdirectmg the course of descents,” which was the before ■mentioned act of 1785. This act controlling distributions remained in force until 1792, when all of the acts upon the subject of descents were, as before stated, reduced into one. A distribution act was passed at the same session. It provided that the surplus of chattels should be distributed ■to the same persons and in the same proportions as lands were dvrected to descend, by an act of the General Assembly entitled an act to reduce into one the several acts directing the course of descents, which was the before mentioned act of '1792, embracing the provisions of the acts of 1785 and ’90. So we see that the act regulating descents and the act regulating distributions, which were in force when the case in 3 Call arose, were each passed at the same session of the Legislature, and the distribution act adopted in very words the ■rules of descent prescribed by a particular act as the rules for distribution. It is also seen that in Virginia the change of the law in respect to the descent of the real estate of an infant was made in 1790, and that there was no pretence that this change was extended to distribution until 1792, and *95that the rule for the distribution of an infant’s chattels was without question the same as that for an adult’s, from 1785 to 1792. It is remarked by J udge Roane that it was not the intention or purpose of the Legislature of 1792 to alter the law in reference either to descents or distributions,- but to reduce the existing laws upon each subject into one act. This remark is certainly sustained not only by the fact that the alteration so far as distributions was concerned, was made some time after the same modifications in the rule of descents, but also by the particular character of the legislation of that session.
Upon examination it will be found that this session was principally devoted to a consolidation of the several laws upon different subjects. Thus we have acts to “ reduce into ond’’ the several acts concerning executions, a like act as to fees of officers, a like act as to the practice of the Court of Appeals, a like act as to the court of chancery, a like act as to the general court, and five other acts of similar character.
"We have thus the legislation in Virginia upon these several subjects when the decision in 8 Call, to the effect that the personalty of an infant should be distributed as his realty would descend, was announced.
We next inquire as to the legislation in this State upon these subjects up to 1859, when the decision of Jones vs. Dexter was announced.
In the year 1822, an act regulating descents was passed, which was substantially the same as the act of 1785 of Virginia. In 1828, a consolidation act upon the subject was passed. It, however, made no distinction in the law of descents when applied to infants a,nd adults. In 1829 the act ■of 1828 was repealed, and a new act passed containing substantially the provisions of the act of 1828, and in addition thereto provisos making a difference in the rule to be applied to the real estate of an infant, and the rule to be applied to that of an adult, by providing that an infant’s real estate *96should go to the maternal kindred if derived from the mother, and to the paternal kindred if derived from the father. (Thomp. Dig. 189.) As to the statutes regulating distributions, there has. never been but one act upon the subject. This act was passed in 1828 and it provided that distributions should be made “ according to the provisions .of the law regulating descents.” This statute was enacted with reference to the then existing act of 1828 regulating descents, which made no Mfferenee in the rules to be applied to infant's and adult's real estate, so that while upon the repeal of the statute of descents of 1828, and the enactment of the statute of 1829, the legal effect of this legislation may have been as was decided by the majority of the court in Jones vs. Dexter, and in this case, to make the rule enacted in 1829 control the distribution, yet this result follows from a rule of construction adopted by this Court rather than from any intention' of the Legislature expressed in totidem verbis to that effect. Hence it cannot be said of the statute of distributions in Florida, as was said of the statute in Virginia, that it adopts the statute making a difference between the rule applied to the property of an infant and that of an adult in express language, leaving no room for the operation of .established rules of construction by which the intention of the legislature may be determined.
With this, I think a correct statement of the legislation in the two States, we are prepared intelligently to analyze the casein the one State and ascertain whether it is analogous to the ease in the other, as well as to examine the grounds of the opinions of the several eminent jurists that have entertained different opinions upon the subject in the several States. An examination of the opinions of the several judges in Virginia will sho\v that the peculiar phraseology of their statute of distributions had a controlling influence upon them. Hot one of them was pleased with the result they reached. They appealed to the Legislature to change it, which was promptly done. So that the rule established by the Virginia de*97cisión was condemned by every member of the Court and by the Legislature in Yirginia. The statute of distributions in Yirginia, as we have seen, declared that the personal property “ should be distributed in the same proportions and to the same persons as lands are directed to descend in and by am act of the General Assembly entitled am act to reduce into one the several acts directing the course of descents.” Judge Fleming admitted the confusion and difficulty which would result from the application of the rule prescribed for the descent of an infant’s real estate to the distribution of his personal estate, but said, I am “bound down by the positive precepts of the adopting statute.” Carrington, Justice, said that while the rule was inequitable, the terms were too explicit to admit any latitude in construction, that the declaration that the personal property shall be distributed “ in the same proportions and to the same persons” was too positive. Pendleton, President, said, “ the words of the law appear to me to be too strong to admit of any construction by this Court.”
Having thus stated the reasons given by the majority of the court in Yirginia for the decision, it is well to refer briefly to the reasons given by Mr. Justice Roane (who dissented) for his conclusion that the provisos in the Yirginia statute regulating the descent of the infant’s realty did not control the distribution of the personalty. In the first place he admitted that the word and letter of the statute were positive and express, but contended that even this unequivocal expression by the Legislature might be controlled by consequences and the reason of the law taken on a general view, and maintained that the provisos should be rejected in the distribution of personalty for the following among other reasons: Because they were provisos containing terms only applicable to real estate, such as the words descent, dower, and courtesy, and that the same principle which justified the rejection of these particular terms, as applied to personalty, justified the rejection of the entire section; because *98while in the case of realty there could be a reciprocal operation of the statute as between the maternal and paternal lines, yet this manifest ■ intention of the Legislature could not prevail as to goods and chattels brought by the wife to the marriage, as by the marriage they belonged to the husband ; because it could not have been the intention or design of the Legislature, in the event of the death of an infant child, by a first .marriage, to deprive the mother and hex-children, by a second marriage, from enjoying any portion of her owix pex-sonalty, brought to the family upon the first marx-iage, and to bestow it even to the exclusion of the mother upon the children of the first marriage; because thex-e was á difference in the nature of the sxxbject matter of the two statutes, which x*endex*ed it impossible for it to opex-ate ás a general rule; that the idea'that- the Legislature intended to apply the principle of the first purchaser to the case of chattels, could not be sustained on .account of the absux-d consequences which would result; that while the words of a statute separately taken might be clear, yet, if when applied to a different subject matter than they were ox-iginally intended to control, the results were inconvenient and absurd, and these x-esults grew out of the difference in the nature of the subject mattex*, the rules of construction required that it should be held that such was not the intention of the Legislatux-e; that the clear intentioxx of the Legislature in the matter of the descent of infant’s real estate was, that property coming from the mother should go to her .relations, as well as. the convex-se ixx reference to the father, while to follow the letter as applied to pex*sonalty it would result that all personal property, however derived, would go to the relations on the part of the father. (3 Call, 96; 1 Munf., 190.)
We have thus given the views of the majority and minority of the court in the Yii-ginia eases, and are enabled to see px-ecisely what those cases were.-
In the case of Jones vs. Dexter, (8 Fla., 296,) the Supreme *99•Oonrt ol‘ this State (Baltzell, J., dissenting,) held that the provisos did not obtain here in the distribution of the infant’s chattels contrary to the decision in Yirginia.
It reached that conclusion by the application of two principles of construction, which it announced as follows:
1. That where the provisions of an act are adopted by a general reference, the act will receive a more liberal construction than if originally passed with reference to the particular subject.
2. Where a statute has been enacted with special reference to a particular subject, and by another statute its provisions are directed in general terms to be applied to another ■subject of an essentially different nature, the adopting statute must be taken to mean that the provisions of the original statute shall be restrained and limited to such only as are applicable and appropriate to the new subject.
The first named rule is certainly sustained by the authorities cited in that case, (Dwarr. on Stat., 508, 602, 556; 2 Inst., 287; 6 Q. B., 343; 2 Vatt., ch. 17, §285; 1 Hare, 210,) and I think it cannot be doubted that the particular ■nature of personal property was, under the circumstances, a ¡matter to be considered, and if the nature ef that property ¡rendered these provisos inapplicable to it, and produced consequences absurd in their character, or in conflict with the reason of the law, that they were properly held inapplicable. The court in Jones vs. Dexter justified its difference in conclusions from the Yirginia case, to a considerable extent, by the difference in the precise words used in the adopting statutes of the two States, showing that the words in the Yirginia statute were “ special and definite,” admitting of no construction, in the opinion of that court, while the language in the Florida statute was general and not of such character as to prohibit the application of the ordinary rules of construction. There was no such language in the Florida statute, as we have seen, was employed in the Yirginia statute. This court, in Jones vs. Dexter, did not propose to contro*100vert the Virginia decision when viewed in reference to the legislation of that State, but on the contrary, the difference in the conclusions is based principally upon a difference in the precise character of the legislation of the two States.
As between jurists of such ability as composed the court deciding the case in Virginia, I would not presume to settle differences as to the effect of their legislation, but I am entirely satisfied that not only do the differences in the legislation of the two States, which were mentioned in the ease of Jones vs. Dexter, exist, but I am also satisfied that there is another and additional fact, not alluded to in that case,, which would have had great weight in leading me to the conclusion that the provisos should not be extended to personal property. This is, that in Florida it is only by virtue of the fact that the court held that the statute of descents in operation at the time the distribution should happen, should control the distribution, that these provisos became in any view operative as a rule of distribution. They were not in existence when the distribution act adopting the rules of descent as the rule for distribution was passed, (A. D. 1828,) and- these provisos could not therefore have been in the mind or within any conceived or expressed intention of the Legislature, as was the case in Virginia. These provisos -were brought into effect by the legislation of 1829. It was not by virtue of any express and particular language of the Legislature adopting this precise rule that these provisos could, in any event, be made applicable to personalty. The Legislature did nothing more than change the law of descents, and the operation of a rule of law prescribed by the court made this the rule for the distribution of the personalty. To' my mind there is a manifest difference between following the express and positive precepts of a legislative enactment, as was the case in Virginia, and the controlling and restraining the operation of a rule announced by the court, in'á case of doubt, by the nature of several subjects to which it was to be applied. The Legislature in Florida never de*101dared in words that the rule of descents in operation when the distribution should happen should' control distributions. The court announced this as the result, in its opinion, of the legislation upon the two subjects. It was absolutely necessary for the existence of any rule that it should so hold, because the statute of descents in operation when the act of distribution was passed, and in reference to whicli the Legislature acted, had been repealed, and unless the new rules of descent were held applicable, there was no rule, as there was no other law of descents. It was through the operation, of this rule that these provisos were sought to .be made applicable to distributions. The real effect of the decision of Jones vs. Dexter was, therefore, to control this rule (prescribed by the court in a case of doubt,) in its application, .and not to over-ride or modify the letter of a statute passed .by the Legislature in view of all the facts. The act of distributions in this State was passed by the Legislature when ■there was no distinction in the rule of descents to be applied .to adults and infants. The same rule applied to each. That .rule was based upon the general principle of regarding the person last seized or having title as the true owner, and as .the person whose presumed affections were to be objects of the bounty of the statute. It rejected the principle of looking to the blood of the first purchaser, and did not, in the case of an infant, require the source from which the property came to be ascertained. Hence, so far as the legislature has ever expressed any view- upon this subject of distributions, it is that the 'rule governing in the case of adults should govern in the case of infants. This department of the government has never said that the exception as to the descent of an infant’s realty should extend to the distribution of his personal property, and when we have seen the difficulty in the application of' this rule, and its conflict with the general principle underlying the whole system, as I shall subsequently show, I do not believe it will ever prescribe .such a rule.
*102These differences in the precise character of the- eases-in Florida and Virginia become very important when we-recollect the history of this legislation, the causes- which prompted it, and the leading principle upon which is bottomed the system of descents and distributions, not only in Virginia but in this State, and a majority of the States of the Union. It cannot be doubted that a system of descents which was created to foster and perpetuate an aristocracy, itself an element of power in the government, is not suitable for a republic, in which the existence of such a privileged eláss is inconsistent with the essential principles upon which such a government is founded. While, therefore, upon the success of the American revolution it was entirely proper for the several States of the Union to adopt the principles and rules of the common law controlling ordinary commercial transactions between its citizens, it became the duty of their jurists and statesmen to devise a system of descents conforming to the genious of our government, and to abandon, in a great measure, rules obtaining in England, which were the off-spring of the feudal system, adopted at the behest of a landed aristocracy to perpetuate their wealth and preserve the privileges of their class.
In England, the canons of descent kept constantly in view the blood of the first purchaser. It was the' fundamental principle of the law of collateral inheritances, that upon the failure of issue in the last proprietor, the estate should descend to the blood of the first purchaser. Our peojfic, opposed to keeping up the wealth of families, to' entails, and to primogeniture, adopted a system like that obtaining among the Jews, Greeks and Romans, disregarding, to a great extent, the source from which the land was derived, and based upon the idea that the person who died intestate and last seized of the estate, or had title thereto, was the absolute owner, and that his presumed affections should be consulted rather than the presumed desires of some remote ancestor who had first acquired the estate. The one system,. *103looking to tlie desire of the first purchaser, and which obtained almost exclusively in England, designated as objects of its bounty those only whom he would' naturally desire so to be, while the other, looking only to the person last seized, or having title, would betsow the benefit according to his presumed natural affections. Hence, under the general rule of descents in Virginia and Florida, the mother and her descendants took an interest in the estate, though it was derived from the father, in the contingency that there was no issue or their descendents, or no father of the decedent living. In violation of this principle, upon which the whole system was founded, and in some cases palpably contrary to the natural affections of the person who last owned the estate, an exception was made in Virginia in the ease of an infant decedent, and it was provided that his real estate, if derived from the father, should in no event go to the mother or her descendants. We thus see that this provision, even as to the descent of the realty of an infant, was in violation of the principle underlying the whole system, and while some good reason for a change may have existed, I certainly cannot conceive why the fact that a person is under twenty-one years of age should change the rule. It is well, when we consider the- matter of distributions, to bear in mind that-this exception, even as to the real estate of an infant, is contrary to the general principle of the legislation of these States, and that this general principle was established after the most mature consideration of the subject by the fathers of the republic. If we recollect that a majority of the court in Virginia failed to avoid the consequences of the rule they prescribed, for the reason that the letter of the statute was positive, and the intention of the Legislature was too plainly expressed to doubt, it is not a violent presumption to suppose that the court in Virginia, under the circumstances existing in Florida, would have made the same decisión that was made in the case of Jones vs. Dexter in this State.
I would here leave this branch of the subject, but there is *104one matter which, was urged so much in argument, and which is deemed so material by the court, that I feel constrained to say something. That is the difficulty of tracing personal propérty to the source from which it came, and the difference in.this respect between land and chattels, which occasions the rejection of the provisos, which, when applied to personalty, would require chattels to be traced. The argument as well as the view of- the court, in respect to this matter, is, that no such difficulty exists in tracing chattels-as should justify the rejection of the provisions of the statute of descents which would require chattels to be traced. I think, if a case of this character is simply stated, its difficulty if not impossibility will be seen. Take the only case in which what is called the reciprocity of the statute could operate. An infant derives personalty from the father, and then derives personalty from the mother. This infant dies, having representatives both in the maternal and paternal lines. Recollecting that the rents, issues and profits of this property would not follow the rule prescribed for the corpus or principal, (1 Munf. 215,) but would follow the rule for adults, the general rule, there would be a necessity to ascertain what portion of the property consisted of the increase of animals and interest upon moneys. I think it is manifestly impossible to apply such a rule without great inconvenience. I cannot think it was the intention of the Legislation to adopt a rule which would require a guardian, in order to protect himself) in case his ward should die, to be able to identify the sheep, cattle and other animals derived from each parent, as well as the increase of each stock so derived from the original parent' stocks, and to keep distinct accounts of the principal and interest of moneys, and what portion of the infant’s expenses and necessary expenditures, in eonnéction with the property, "are paid from the interest of the one fund or the other, and so on. In a majority of cases, he would never be able to distinguish whát portion of stock came from the one parent or the other, as the animals of this character, *105upon a farm, generally composed, one flock and the increase bear one mark. In all cases where each parent had securities of like character, how would the source to which each remaining security belonged be ascertained, .in the event a portion of them was destroyed by fire ?
As remarked by Judge Eoane, “ chattels are of a fluctuating nature, the property of some consisting in their use and are not traceable, and, after a lapse of twenty-one years, great inconvenience as well as litigation would ensue from attempting it, while, on the contrary, land is permanent and indestructible, and can be traced ad infiníteme In every age and in every country, from the time that an exclusive right of property could be acquired, wherever there was a government to prescribe rules, these rules have recognized a difference between real and personal property. The common law, moulded, shaped and created from the feudal system, made differences in the acquisition, in the manner of enjoyment and the disposition of these two characters of property, and, in the nature of things, you cannot well make a general rule applicable to one applicable to the other. You should restrain and modify the rule according to the nature of the several subjects, unless the intention of the Legislature is otherwise clearly expressed. At common law, upon the marriage, the chattels of the wife vested absolutely in the husband. In this State, this rule was modified in 1845, and the wife’s title to personal property here continues separate, independent and beyond the control of her husband, although she cannot sue her husband for the rents, issues and profits thereof. While this may permit what is called the reciprocity of the statute to operate at the present time more frequently, it is obvious that it increases the difficulty in enforcing the rule contended for, because, if the rule of the common law was operative, there would be, in all cases where the husband survived the wife, no necessity for such an inquiry, as the personal property would all belong to *106the husband. I remark just here that this change in the rule of the common law did not exist in 1828, when our statute of distributions was passed, or in 1829, when the act regulating descents was passed, and therefore it could not have affected the legislation of 1828 and ’9.
leaving the comparison of the cases in Virginia and Elorida, I now come to the consideration of the present case.
This case is here under circumstances very different from those under which the case of Jones vs. Dexter was before this court in 1859. "We are asked to 'overrule that case in so far as the court held that the provisos did not control in the distribution of an infant’s chattels. Under what circumstances and for what reasons are we asked to reverse this decision ? The case of Jones vs. Dexter is the only decision of that point ever made in this State by the Supreme Court, after argument and consideration. The matter involved was the construction of a statute, and the result of the decision was to establish a rule of property. Potent indeed must be the reasons to justify us in overruling such a decision, existing now for eleven years unassailed and unquestioned. It is ui’ged, and it is true that the judgment rendered in this court in the case of Young’s adm’r. vs. McKinnie’s adm’r., 5 Fla., 542, covered the point, but the question decided in Jones vs. Dexter, and now involved here, was not argued, nor was the point even raised. All of the authorities concur in the statement that a case, to become authority so that the rule stare decisis will apply, must not only involve the point, but the precise question must have been raised and determined upon consideration. It is also true, as is urged, that in 1845 one of the judges of the Circuit Court held that the terms, “ the law regulating descents,” used in the distribution act, “ was such law regulating descents as might be in force when the contingency happened.” This ruling is certainly not in conflict with the decision in Jones vs. Dexter, which states the same generalnile for distributions. Whether the provisos as to the descent of an infant’s realty shall *107apply in the distribution of his chattels was not considered, so far as we are advised, and if it had been considered and expressly determined, we could not accept the judgment of the Circuit Court as authority. The cases in Virginia, while entitled to great respect, are, as we have seen, different from this case, and even if they were identical, the doctrine of stare decisis could not be invoked here by a reference to them, as that doctrine is only applicable in its full extent and force within the territorial jurisdiction of the courts making the decisions. This doctrine is applicable in its full force and extent to the decision in Jones vs. Dexter. It is urged again, that it was the opinion of the bar for a series of years that the provisos controlled the distribution of an infant’s chattels. I cannot say whether this is correct, but I can say that if the bar understood the matter and reflected upon it, it is about the only instance in which there was but one opinion among professional men upon a question of like character and surrounded with the same difficulties.— Where judges clothed with all their responsibilities entertain different opinions, it is not likely that the bar will agree.
If I concur with the majority of the court, I must therefore, upon these grounds, overrule a decision of this identical question, made eleven years ago by this tribunal, upon argument and after due consideration—a decision, foo, construing a statute and establishing a rule of property. The effect of this decision is to declare that the rule announced in the case of Jones vs. Dexter never was law, and, in some cases, to unsettle estates which have been settled by the courts according to that rule. It also disappoints all testamentary dispositions of property which were affected by a knowledge of- this rule and made in view of it.
The wife’s personal property remaining under the provisions of our statutes her own, notwithstanding coverture, the case of a mother having infant children by two marriages and considerable personal property, is not a very rare one. Mothers in this situation have been justified in making *108testamentary dispositions of their property for eleven years past, in view of the rule that, in the event of the death of an infant child by the first marriage, the personal property it derived from its father would to some extent g’o to the children of the half blood surviving. We therefore disappoint dispositions based upon the devotion and affection of the mother to the child, the purest and most unselfish attachment that exists. I might multiply illustrations of this character, as it is almost impossible to estimate the results which follow the change of a rule of property, but it is unnecessary. Stcvi'e decisis is a safe and prudent maxim, and while in questions of practice and like matters we may, in cases of palpable absurdity accompanied with injurious results, reverse a rule, yet I cannot consent thus to act where, for eleven years, all classes have had a right to regulate their action and to be controlled in the disposition of their property by this rule, established by the highest tribunal in the State. It seems to me that the court which, for the equities of some individual case, reverses the rule to be applied to all eases, commits a much greater wrong by destroying all other settlements than it would in enforcing the rule in the one case, even if the original rule was wrong. To be controlled by the equities of the one case here, is in effect to do justice to one by doing great wrong to many, and I conceive that this cannot be correct either in morals or in law. Sir James Mansfield, (4 Bos. & Pul, 69,) speaking of this subject, says: “ It is of greater consequence that the law should be uniform than that the equitable claim of an individual should be attended to.” Whatever doubt I may have had on other branches of this case, I have liad none here. What say the authorities in reference to overruling decisions of this character ?, It has been remarked that a court in deciding almost any question, “ creates a moral power above itself.” In a case before lord Kenyon, (7 Term Repts., 242,) it was urged in argument that a certain doctrine in reference to the revocation of wills *109was not bottomed on reason, and that it would be absurd to permit it to prevail. His reply was simply that if such an observation was an answer to a rule of law, it might be applied with equal success to a variety of other instances ; and in referring to some objections taken to a rule of descents which excluded persons of the half blood, he remarks that 44 it is sufficient in answer to objections to establish a rule of law of this kind to say, 4 ita lex scrvpta est.’’ ”
The Earl of Lincoln’s case (Show. Par. Cas. 154,) announced the rule of law, that where a man seized of an estate, makes his will, and devises it, and afterwards conveys it entirely away, though he takes it back by the same instrument, it is a revocation. Lord Mansfield, speaking of this rule, said that it was 44 not founded upon truly rational grounds and principles, nor upon the intent, but upon legal niceties and subtlety,'” but that it was so far established by the Earl of Lincoln’s case, that it ought to be observed in future if a like case should happen. (2 Eng. Com. Law, 22.) Says he, we must not depart from it now, notwithstanding we would wish that no such rule had ever been established.
Lord Mansfield again says, (1 Burr. 419,) 44 when solemn determinations acquiesced in formed a rule of property, they ought, for the sake of certainty, to be observed as if they had originally constituted a part of the text of the statute.” It is needless to multiply quotations upon this subject. The authorities, both in England and in this country, are almost without number, 7 T. Rep., 416 ; 3 Barn. and Ad. 17; 3 Bing. 558; 1 Kent, 476; 16 John. 402; 20 John. 722; 23 Wen. 340 ; 7 Mich. 12; 1 Yerg. 376 ; 5 N. Y. 389 ; 30 Miss. 246; 2 Burr. 787; 5 T. R., 450; Cooley’s Con. Law, 52. In cases of this kind, where the original question was the construction of a statute fixing a rule of property, the remedy should be the enactment of a new rule by the Legislature, the effect of which would be to change the rule in future and thus avoid the serious consequences attending the unsettling of estates. We have seen that decisions of this kind will not *110either in England or America he overruled, even though the previous rule was such as we would wish had never been established. In this case we in effect abolish a rule approved, after mature reflection and examination, both by the Judiciary and Legislature of the State from which our statute upon the subject of descents was derived, and establish, to operate both in the past and future, a rule which, after experiment, was disapproved by the same Judiciary, and which, at their request, (an unusual thing,) the Legislature promptly repealed. In addition to this, if it be true that the decision in Jones vs. Dexter, made eleven years ago, did not settle the law, then, applying this rule to this decision, it cannot settle it for the next eleven years. During this time, the lawyer who can give advice on this subject, or the citizen who can act with any certainty, must possess the power to unveil the future and know what will be our opinion or that of our successors at that remote date. It is with no pleasure that 1 differ with the majority of the Court in this case, but I cannot coincide with action involving such consequences.