We dissent, and, in accordance with the clear mandate of subdivision (5) of section 170 of the Domestic Relations Law, would affirm in Gleason and reverse in Goldstein, sustaining the validity of the complaint in each instance.
The facts and the applicable statute, as well as summaries of the holdings at Special Term, have been fairly set forth in the opinions of the majority and require no repetition here. Our disagreement is with the conclusions derived therefrom. “ None of us ought to make the parties’ case better than the law has made it.” {The Bankers’ Case, 14 Howell State Trials 39, 45, Somers [1700]), but this is what the majority has done. ‘1 Under the doctrine of separation of powers, it is fundamental that the courts may not extend, enlarge, or expand legislation. The courts should not attempt to read into a statute words or provisions or meanings which are not there. * * * Rules of construction are invoked only when the language used in a statute leaves its purpose and intent uncertain and questionable, and not for judicial enlargement of or extension of the legislative design or intent. A court may not read into statutes what the legislature intended should be left out, nor read into a statute words not used by the legislature which would defeat the purpose of the statute in part.” (56 N. Y. Jurisprudence, Statutes, § 107, pp. 584-585, and the numerous cases there cited.) This is precisely what the majority has done.
*411The complaint in each case sets forth in accurate paraphrase the language of the statute (Domestic Relations Law, § 170, subd. [5]), pursuant to which relief is sought by way of judgment of divorce. For the purposes of the motion to dismiss for insufficiency, the allegations must be deemed true. So read, each complaint clearly sets forth a cause, pleaded pursuant to the statute, i.e., that the parties “ lived apart pursuant to a decree or judgment of separation for a period of two years after the granting ” thereof and that “ plaintiff * * * has substantially performed all the terms and conditions ” thereof. It is beyond dispute that each plaintiff has followed the time-honored, usually unassailable method of assuring a sufficient pleading by “ pleading the statute.” The difficulty is that the majority has imported into the statute a nonexistent restraint upon its thrust: a plaintiff may not, it is claimed, employ as the predicate judgment of separation, sought to be converted into divorce, one that preceded in time the effective date of the statute. In short, it is said, the statute is prospective only in applicability. Much is said about legislative intent and surrounding circumstances, but not a word is said to contradict the statute’s clear and unambiguous words. Indeed, if anything at all, the statute’s brief history points in the opposite direction.
Subdivision (5) of section 170 (conversion of separation judgment into judgment of divorce) and subdivision (6) (conversion of separation agreement into divorce judgment) were enacted simultaneously in 1966 (L. 1966, ch. 254); the only limitation of time of any kind then imposed was that, in neither case, could the two-year period of living apart specified in both subdivisions ‘ ‘ be computed to include any period prior to September first, nineteen hundred sixty-six” (L. 1966, ch. 254, § 15). In 1968, subdivision (6) alone was amended to limit its conversion provisions to agreements of separation “ subscribed and acknowledged on or after August first, nineteen hundred sixty-six” (L. 1968, ch. 700). The memorandum in the 1968 Report of the Joint Legislative Committee on Matrimonial and Family Laws to the Legislature of the State of New York (March 31, 1968, p. 55) recites legislative intent as to the amendment: “ The living apart ground for divorce based upon an agreement of separation is being amended to recite that the agreement must be one subscribed and acknowledged on or after August 1,1966. This language is being added in order to clearly show that there is no legislative intent that this section have retroactive effect.” Then going on to speak of subdivision (5): ‘1 As originally introduced, this bill would also have provided *412that the separation ground for divorce based upon a judgment or decree of separation must have been one granted on or after September 1, 1966. By amendment, this limitation was deleted. The bill as it now stands, demonstrates a legislative intent to construe that provision as retroactive. ’ ’
The concurring opinion for the majority adds other grounds to a claim of restriction to prospectivity in application. The claim that subdivision (5) of section 170 is an unconstitutional deprivation of appellants ’ right of due process of law is without merit. The section does not violate that constitutional guarantee. Apparently, appellants ’ greatest concern is that conversion of the separation decree into divorce at the behest of the guilty husbands will deprive the wives of rights to inherit as surviving spouses. However, there is no such right entitled to the protection of the due process clause. (Simons v. Miami Beach Nat. Bank, 381 U. S. 81.) As Judge Korn stated at Special Term:
“ There are no vested rights to inherit. At best one spouse has a mere expectancy in the estate of another.
“ Additionally, there is no 1 vested ’ right that a spouse has arising either out of contract or out of the marital status to remain married to his or her partner ”.
Due process protection is afforded only to vested property rights, not to mere expectations. (Irving Trust Co. v. Day, 314 U. S. 556, affg. Matter of McGlone, 284 N. Y. 527; Randall v. Kreiger, 23 Wall. [90 U. S.] 137.) “ Since rights of descent and distribution of a decedent’s estate are created by the law of the State, the State may change or take away such rights though it may not take away property which had vested by virtue of such rights.” (Matter of McGlone, supra, p. 533.) And, since the State may limit, change or abolish rights of succession to the property of a living person directly, it certainly may do so by providing new grounds for divorce. And, as to those rights which have vested, for instance as provided in the Gleason situation for the payments to the wife to continue into the future, there will be no interference whatever by a decree of divorce.
The concurring opinion speaks of unconstitutional discrimination. In so doing, the majority itself discriminates as between conversion of judgments and conversion of agreements by raising, though the words are not used, the same concept of “ fault ” and “ guilty spouse ” stressed as a make-weight in the Goldstein opinion at Special Term. The Legislature never intended to make “fault ” a criterion by which the right of conversion divorce is to be measured. Indeed, a bill to that end failed of passage in the 1969 session. (See Association of Bar of City of N. Y., Committee on State Legislation, Bulletin No. 5, *413March 10, 1969, pp. 231-233.) “ The court may uot substitute itself for the Legislature merely because the Legislature has failed to act.” (Matter of Spillane v. Katz, 25 N Y 2d 34, 37.) Further, it is interesting to observe that the law school professor assigned as reporter to the topic ‘ ‘ Matrimonial and Family Law ” at the 1967 Conference of New York State Trail Judges (Crotonville) Thirteenth Annual Beport N. Y. Judicial Conference, 1968, p. 115; N. Y. Legis. Doc., 1968, No. 90, p. 115, participated in by approximately one hundred trial, and some appellate Judges, from all over the State, wrote: ‘ ‘ The new ‘ living apart ’ or conversion grounds next received the panel’s attention in terms of the following specific question: is the right to transform a judicial separation into a divorce available equally to the innocent spouse and the guilty spouse in the underlying separation action? There was a consensus that this right of conversion is not under existing law limited to the innocent party in the separation action.”
The 1966 “ Committee Beport on Becommended Amendments to the Divorce Beform Law of 1966 ’ ’ of the Special Committee on Matrimonial Law of the Association of the Bar of the City of New York speaks, under the heading “ Inheritance Bights of Divorced Innocent Spouse ” (Becord of Assn, of Bar of City of N. Y., vol. 21, [1966], p. 598), only of the necessity of desired legislation to protect the property rights of such a spouse, stating the problem: “Under the provisions of Section 170(5) of the Act an action for divorce may be maintained by a husband or wife where they have lived apart pursuant to a decree of separation for a period of two years after the granting of such decree and satisfactory proof has been submitted by the plaintiff that he or she has duly performed all the terms or conditions of such decree. The operation of this provision may produce an inequitable result in certain cases by depriving a faultless spouse who has procured a judgment of separation without any desire, of divorcing his or her spouse of the right to share in the other spouse’s estate.” The report goes on to recite certain aspects of the problem, incidentally repeating specifically that the faultless spouse may well be the losing defendant in the conversion divorce action, and recommends remedial action, not by way of restricting the right to sue in a conversion action to the faultless spouse, but assuring her property rights, particularly under the Decedent Estate Law. Obviously, fault is not considered a factor in the right to conversion divorce. See, to the same effect, The Judicial Conference’s 1967 “Memorandum on Becommended Changes in the ‘ New Divorce Law ’ ”, referring to chapter 254 of the Laws of 1966 (p. 29 et seq.).
*414The majority’s concurring opinion also protests what it terms unconstitutional discrimination against those who brought separation actions prior to the change in law because the eventual result of conversion divorce might not be in accord with their original intentions. There is no right of contract involved here and the State obviously has the power, here exercised, to change its policy for the common good. Nor, actually, is there any greater discrimination, if there is any at all, than that which is accepted as a matter of course in the advantages generally accorded by matrimonial laws to women over men.
Finally, and without yielding to the temptation to excerpt generously therefrom, we can do no better in evaluating the position taken by the majority than to point to the unanimous opinion of our brethren in the Second Department, per Benjamin, J., to the same effect as our dissent (Schacht v. Schacht, 32 A D 2d 201).
In sum, the complaints were properly drawn pursuant to a constitutional, clear and unambiguous statute, and should be sustained.
McNally and MoGtvern, JJ., concur with Eager, J. P., in opinion by McNally, J.; Markewich and Nunez, JJ., dissent in opinion.
Order in the first above-entitled action entered March 13,1969, reversed, on the law, with $50 costs and disbursements to the appellant, and defendant’s motion to dismiss the complaint granted; the Clerk is directed to enter judgment in favor of the defendant dismissing the complaint with costs.
Order in the second above-entitled action entered on March 31, 1969, and judgment entered thereon, affirmed, with $50 costs and disbursements to the respondent.