delivered the opinion of the Court:
This was a bill in equity, brought by Benjamin F. Henson, in the circuit court .of Jackson county, against James E. Moore, F. E. Albright, A. B. Pugh, and Wm. S. Murphy. The bill prayed for an account, and that the rights of the complainant in and to the premises described in the hill be ascertained and declared, and that he be decreed to be the sole owner of the lands for life, free from any right or claim of defendant James E. Moore, or any persons claiming under him, and that he and those claiming under him be adjudged and decreed to surrender up to complainant the possession of the premises; that.the conveyances from Moore and Albright be set aside; that complainant be put in possession of the premises; that Moore be required to account for rents and profits, and that complainant may have such other and further relief as to equity and good conscience shall appertain, and as shall seem meet. The defendants put in an answer to the bill, a replication was filed, and a hearing had on the evidence in regard to the homestead rights of defendant Moore, and on an agreed statement of facts as to the other matters alleged in the bill.
It appears from the record that Minerva A. Moore died testate, August1 30, 1877, seized of fifty-six acres of land adjoining the city of Murphysboro, in Jackson county. She left surviving her a husband, James E. Moore, a brother, three sisters, and the son of one deceased sister and the daughter of another deceased sister, but no children or descendants of children. About twenty acres of the east half of the land was in cultivation, where was situated a dwelling-house, which was occupied by the testatrix and her husband at the time of her death. Moore was-married to the testatrix on the 31st day of October, 1869, she being then the owner of the premises. The east half of the land Mrs. Moore devised to her brother, Benjamin F. Henson, for life, and at his death to his children. The west half of the tract of land she devised to her nephew, Benjamin F. Morgan, in fee. To her husband she devised one ton of hay, which was in a barn on the premises, but no other property whatever. The will was admitted to probate October 16, 1877, and on the 27th day of the following month James E. Moore filed in the probate court his written renunciation of the will, and his election to take under the statute. It also appears that at the time of the death of Mrs. Moore, complainant was in the possession of the premises under an unexpired lease; that Moore, in October, 1877, recovered a judgment before a justice of the peace, against complainant, for possession of the premises ; that an appeal was taken, but Moore, under a statute then in force, obtained a writ of possession, and was put in the possession of the premises.
It is claimed by plaintiff in error that as the homestead was acquired prior to the act of 1874, which exempts a homestead from the laws . of descent and devise, the husband could not claim an estate of homestead in the property. We do not regard it as a material question when the property became a homestead. . The husband’s homestead rights must be determined by the law in force at the death of the wife. The first section of the Homestead act in force at that time, in express terms exempts the homestead from the laws of conveyance, descent and devise. Under this statute, which must control, the wife had ho power to devise the homestead to another, and thus deprive the husband of that estate.
It is also said the husband had abandoned the homestead before the death of the wife. It is true the evidence shows that some difficulty arose between the husband and wife, prior to her death, in consequence of which he was absent for a short time, but he returned after his wife was taken sick, and was living with her on the property when she died. ■We do not think this temporary absence would deprive him of any right which the statute- gives him. There was, in our judgment, no such abandonment of the homestead as would preclude him from claiming the estate.
On the trial of the cause the court held that James E. Moore was entitled to dower in the lands owned by the wife at the time of her death, and having renounced the provisions of the will, under section 12 of the Dower act he was entitled to one-half of the lands in fee. This decision is claimed to be erroneous. Mrs. Moore owned the lands at the time she was married, in 1869, and it is true that under the statute then in force the husband was not entitled to dower in the wife’s real estate, and had she died without any change in the statute he could not claim dower in her lands. But section 1 of the Dower act declares that the estate of curtesy is abolished, and the surviving husband and wife shall be endowed of the third part of all the lands whereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in a legal form. Section 12 of the same act declares: “If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower, * * * one-half of all the real and'personal estate” which shall remain after the payment of debts.
Had Moore, by the marriage, acquired any vested estate in the lands of his wife, it may be that the legislature could not have deprived him of that estate; but such was not the case, nor is that the question presented by this record. The question is, whether the legislature had the power to so change the law as to invest the husband or wife with an estate or interest in lands which they did not possess at the time of marriage,—or, in other words, has the legislature no power to regulate curtesy, inchoate dower, or any mere expectant interest, except as to lands acquired and marriages solemnized after the law is enacted. The statute to-day provides, that where a person dies intestate, seized of lands, the same shall descend to his children in equal parts. Suppose that A has one thousand acres of land, and five children, under the statute, should he now die, the lands would descend in equal parts to all the children. But the legislature has the power to provide, at its next session, that the fee of these lands shall descend to the wife of A, and thus deprive the children of any right that they may now have in expectancy to these lands. The right of dower which a wife may have in the estate of the husband before his death, is one which may be changed in such manner as the legislature may think for the best interests of the people. It may be entirely abolished, or it may be enlarged. The same is true in regard to the dower rights of a husband in his wife’s lands. It is always subject to legislative change until it becomes a vested estate,—that is, until the wife or husband dies,—then the land passes according to the law then in force, and any change afterwards made in the law can not have any bearing on the rights of the parties. As was held in Sturgis v. Ewing, 18 Ill. 176: “A party who acquires property does not acquire with it the right to devise such property according to the law as it exists at the time he acquires it. Wills and testaments, rights of inheritance and succession, are all of them creatures of the civil or municipal law, and the law relating to or regulating any of them may be changed at the will of the legislature. But no change in the law made after the death of the testator or intestate will affect rights which became vested in the devisee, heir or representative by such death.”
Cooley, in his work on Constitutional Limitations,- (10th ed.) 447, in discussing the husband’s right as tenant by the curtesy- initiate, says: “While this right remains in expectancy, merely,—that is to say, until it becomes initiate,—the legislature must have full right to modify, or even abolish it. And the same rule will apply to the case of dower,, though the difference in the requisites of the two estates is such that the inchoate right to dower does not become property, or anything more than a mere expectancy, at any time before it is consummated by the husband’s death. In neither •o'f these cases does the marriage alone give a vested right,— it gives only a capacity to acquire a right. The same remark may be made regarding the husband’s expectant interest in the after-acquired personalty of the wife. It is subject to any changes in the law made before his right becomes vested by the acquisition. ” On page 445 it is also said: “And it is because a mere expectation of property in the future is not considered a vested right, that the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner. ”
Under the statute, we think there can be no doubt that James E. Moore was entitled to dower in his wife’s lands, and having renounced the provisions of-the will in the mode provided by law, and having elected to take under the statute, he became seized in fee of an equal undivided oné-half of the lands owned by the wife at the time she died.
The court, however, on the hearing, dismissed the bill, and it is contended by complainant, conceding that Moore was entitled to an undivided half of the premises, a decree should have been rendered settling the rights of .the parties. It appears that Moore and his grantee had for several years been in possession of the premises, and had ■ received all of the rents. One object of the bill was to require an account, and it is a clear proposition that equity has jurisdiction in actions between co-tenants for an accounting. (Story’s Eq. Jur. sec. 466.) We are of. opinion that the bill should have been retained, and an account stated between the parties, and as all the facts relating to the title to the lands were before the court, no good reason is perceived why the bill should not have been amended, and a partition of the lands decreed. Equity and justice would seem to require that the rights of all the parties should be settled in the proceeding, without requiring the complainant to commence a new suit.
We are therefore of opinion that equity requires that the decree should be reversed, and the cause remanded, with leave to the complainant to amend his bill, making Benjamin T. Morgan, to whom the west half of the premises was devised, a defendant, and for such other and further amendment as will authorize a decree of partition of the premises between the different owners, as their rights may appear from the evidence.
Decree reversed.