IN DIVISION TWO.
Shekwood, J.— This cause has been here before (115 Mo. 184).
It is an equitable proceeding, instituted in 1889, by which plaintiff sought to compel the defendant bank to transfer to her fifteen shares of its stock then standing on its books in the name of her husband James M. Leete, defendant, and also to account to her for dividends declared thereon, alleging that such shares were purchased by defendant Leete with money which came to her by the bequest of her father in July, 1876, and January, 1877, and that with some of the money thus bequeathed to her, her said husband in February, 1877, bought said stock for plaintiff, but, without her consent in writing, caused the certificate thereof to be made out in his own name. These were the allegations of the original petition.
After the reversal ordered by this court upon the appeal of defendant bank, plaintiff amended her petition, whereby she further alleged that when this stock was purchased by her husband, neither she nor her husband was indebted to defendant bank, and that long subsequent to the payment of money to the husband, *580■which it is stated was to him as plaintiff’s agent and trustee, and to the purchasing of stock, the htisband became indebted to the bank, by reason of which the bank refuses a transfer of the stock on its books, and that said indebtedness was not created for necessaries for his wife or family; and it is then averred that the stock is not liable to be taken by any process of law for the debts of the husband, and plaintiff avers she is the owner of this stock, and that the ^dividends, as well as said stock, are not liable to be taken as just stated.
The answer of defendant bank was the same as the original one, to wit, a general denial, estoppel, lien, and limitations.
These special defenses were exscinded by the lower* court on plaintiff’s demurrer, but were restored on the return of this cause to that court in compliance with the opinion of this court herein.
The evidence showed that the stock thus purchased by Leete, the husband, ih his own name, had stood in his own name on the books since 1877; that the bank had no knowledge or information that plaintiff made any claim to the stock until 1886, after Leete, her husband, had become largely indebted to it, which indebtedness was incurred in 1884.
The will of plaintiff’s father bequeathed to herself and sister one fifth part of his entire estate “in their own rights.” These words do not create an equitable separate estate, for the reason assigned by all the authorities, to wit, that the purpose to create an equitable separate estate must clearly appear beyond a reasonable doubt, otherwise the husband will retain his ordinary marital rights over his wife’s property. 2 Story, Eq. J'ur., sec. 1381, and cases cited.
This was the view taken of these same words in the same will in Hart v. Leete, 104 Mo. loc. cit. 328, this court saying: “No case to which we have been cited *581goes to the .extent of saying that such language will create a separate estate.” 'This view of the force and effect of these same words was reiterated in Richardson v. DeGiverville, 107 Mo. 432. To the like effect, see Merrill v. Bullock, 105 Mass. 486. See, also, Halferty v. Scearce, 135 Mo. loc. cit. 433.
This preliminary discussion has become necessary, because, if the words of plaintiff’s father’s will created an equitable separate estate, this cause would present a different aspect to what it does under the authorities already cited. Holding, then, that the words in question created an ordinary estate in plaintiff over which thesis mariti of her husband reigned with all of its customary common law vigor, we are to ascertain the dates of the death of the testator and of the intermarriage of plaintiff and her husband. At a former hearing of this cause the referee found that the testator died in 1870 and that the marriage of plaintiff and her husband occurred in 1871. Plaintiff, in her original and amended petitions, sedulously avoids stating when the death of her father and when her marriage occurred, nor does the evidence show the chronological order of these events. In such circumstances we shall assume that what the referee found on a former occasion to be true respecting those dates is still true. And we make this assumption the more readily for these reasons, because it was the duty of plaintiff, in order to have apprised defendant bank of the nature of her cause of action, and her duty to the court to have stated these dates, and the duty of the lower court under section 2057, Revised Statutes 1889, to have required that these uncertain allegations of the petition in this regard be made definite and certain. See, also, section 2117, lb.
And though defendant bank might have filed a motion for the purpose mentioned, yet it was not bound to do so, since it was the primary duty of plain*582tiff to make a clear and unequivocal statement of her allegations, and this onus she could not cast on her adversary by failing in her duty in this regard. Young v. Schofield, 132 Mo. 650, and cases cited; Boles v. Bennington, 136 Mo. loc. cit. 529, per Bubgess, J. And in this connection it is well enough to say that even the statement of plaintiff’s case is vexatiously indefinite on the point in hand, counsel merely alleging “James Harrison died testate in the year 1870;” “Appellant was married to James N. Leete on the twenty-eighth of June, 1870.”
Taking, then, as true, the dates as aforesaid, afe formerly found by the referee, we are brought to consider the constitutional question presented on the former appeal, and which was ruled adversely to plaintiff’s contention, and a motion for rehearing denied. Notwithstanding this, we permitted the constitutional question to be again reargued. This question and the authorities bearing upon it considered with great attention on the first appeal herein, have been reconsidered on the present appeal,, with the result that we adhere to the conclusion previously announced that the act of 1875, now section 6869, Revised Statutes 1889, operated prospectively only and did not apply to marriages then in existence, and that to apply it to such marriages would be violative of, the constitutional provision prohibiting the enactment of a law retrospective in its operation, and that within that protection was the husbánd’s right to reduce his wife’s dioses in action into possession a vested right, as incapable of retroactive legislative abrogation as any other vested right acquired by the husband by reason of the marriage.
Since the former opinion was delivered, our attention has been called to some additional authorities which fully support the views we have heretofore expressed. Thus in Pritchard v. Norton, 106 U. S. loc. *583cit. 132, it is said: “Hence it is that a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the common law, it is not competent for the legislature to take it away.” In Power v. Harlow, 57 Mich. loc. cit. 111, Chief Justice Cooley remarked: “A right of action is as much property as is a corporeal possession, and is protected by the law in the same way and under the same securities.” So, also, in a recent work of recognized authority it is said: “On principle, it would seem that the right to reduce the wife’s ehoses in action to possession vested in the husband at the time of the marriage, arid could not be divested by a statute passed after the marriage, although the husband had not, at the time of the passage of the act, reduced the ehoses to possession; and so it has been ruled in several cases.” 2 Perry on Trusts [4 Ed.], sec. 676.
As this is the controlling .question in this cause, it is unnecessary to pass upon any other, and therefore the decree of the lower court dismissing plaintiff’s petition is hereby affirmed.
All concur.IN BANG.
Per Curiam. — The foregoing opinion, prepared by Judge Sherwood, while this cause was in Division Two of the Supreme Court, is hereby approved and adopted as the opinion of the court in lane. The judgment is accordingly affirmed.
Gantt, Macearlane, Burgess, Robinson and Brace, JJ., concurring with Judge Sherwood in the said opinion and judgment. Barclay, C. J., dissents.