(concurring specially) : I concur in the decision of this case for the following reasons: It is admitted that plaintiff was the wife of John C. Mc-Kelvey at and long prior to his death, and while such relation existed he was seized of the land in question and made no conveyance of it. To the claim that it was sold during his lifetime on an execution to satisfy a judgment for money rendered against him, Mrs. Mc-Kelvey offered evidence impeaching the consideration claimed to have been paid for the transfer of the land to the son, John-A. McKelvey. This evidence tended to establish one circumstance in a chain which strongly indicated that the-judgment was collusive, fraudulent and void. The evidence was very material, for if the judgment was void the execution was also void and the plaintiff should recover. For this error I concur in the decision.
I am unable to concur in the language of the second paragraph of the syllabus or in some statements in the *333opinion. It is said that the interest of a wife in the lands of her husband “springs into existence by operation of law upon a concurrence of seizin and the marriage relation.” If this be true, this suit was long ago barred by the statute of limitations. Coverture is no disability in this state. A married woman may sue and be sued in the same manner as if she were unmarried. If the land was sold under a void judicial proceeding, and she had a present interest therein which was invaded, she could and should have proceeded to have the sale set aside within the limitation provided by law. If, however, as I think, her rights sprang into existence •on the death of her husband, then her action is not barred but is timely.
The wife’s right to prevent the fraudulent disposition of her husband’s land is based upon her legal right to look to it for her maintenance, which, as is shown lby the petition in the case of Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, was pleaded in that case, and no other right appears to have been asserted nor any other question to have been presented for decision.
The statutory right of a wife to an estate in her kusband’s land is not consummated until his death. Until then she has no right of possession and she cannot sell it. It can be taken from her in an action to which she is not a party — that is, without due process of law. If she die before her husband no right or interest therein descends to her heirs. In all its uncertainty and contingency it. is entirely analogous to dower. As to devolving an estate it is analogous to heirship. *334wife until the death of her husband. A possibility of dower is no vested right in the estate of dower, or anything the law recognizes as property.” (Richards v. Bellingham Bay Land Co., 54 Fed. 209, 211, 4 C. C. A. 290.)
*333“Dower is not an estate in land, vested or otherwise. It is a right without value, unless by some modem methods a possibility may be valued. A possibility or contingency is not an estate. It may be affirmed generally, where a right is given by law, until that right becomes vested in some way in property the law may be changed or repealed, and the right taken away. . . . Dower does not become a vested right in the
*334A married woman who survives her husband either has or has not a vested property right, prior to his death, in the land owned by him at any time during the continuance of the marriage relation. If she has such vested property right at such time, coverture being no disability, she has an immediate cause of action when such right is invaded, and may bring her action at once to repel such invasion. Since she may bring her action at once, she must bring it within the time limit provided by statute or be forever barred from the remedy.
If the wife has no vested property right in her husband’s land prior to his death, she certainly is vested by the statute with such right, immediately upon his death, in all his lands which have not theretofore been alienated in some one of the manners specified in the statute; and if, by fraud or otherwise, a cloud has been cast upon hér title to her interest in such lands by an apparent, not real, alienage of the same before the death of the husband, she may bring an action at any time after his death, within the statutory limitation, to remove such cloud.