dissenting:
I regret that I am unable to concur in the opinion of the court.
The principles which ought to control in the decision of this case, in my judgment, have been recognized and acted upon for nearly three-quarters of a century, in a long line of decisions, beginning with West v. West, reported in 3 Band. 373, and coming down to Taylor v. Cussen, 90 Va. 40. This court has never recognized the right of a creditor of a married woman to subject the corpus of her equitable separate real estate to the payment of her general engagements during coverture, but such right, whenever asserted, has always been denied.
How the death of the wife can, upon any principle of law, enlarge such a creditor’s rights, and enable him to subject, after her death, property which he had no right to subject during her coverture, I am utterly unable to understand. No reason has been, or, in my judgment, can be, given for the exercise of such a right after her death which does not apply with equal force during coverture.
The principle involved in both eases is the same.
The necessary effect of this decision-is, therefore, to overturn a rule of law imbedded in our decisions, and which has become a rule of property, and thus disturb vested rights.
If the rule of law governing this court in its former decisions is founded upon incorrect principles, and fails to accomplish fully the ends of justice, the remedy is with the Legislature. Laws by that body operate prospectively only, whilst laws made by the court operate retrospectively as well as prospectively, and are subject to the double objection that they are made without authority and disturb vested rights.
Affirmed.