McCormick v. Brown

Letton, J.,

dissenting.

I did not hear the argument in this case; but, since the-doctrine announced in the second paragraph of the syl *550 labus is directly opposed to the language of the statute and is of great importance, I feel it ray duty to call particular attention to it by this dissent. Section 1269, Rev. St. 1913, provides: “The right of a married man or woman to inherit a part or all of the real estate of which his or her spouse Avas seized of an estate of inheritance at any time during the marriage may be barred * * by the sale of such real estate under execution or other judicial sale, during the lifetime of the owner.” In Gaster v. Estate of Gaster, 92 Neb. 6, 14 , Sedgwick, J., says, speaking of the language of this section: “It recites the right of a married man or woman in the • property of his or her spouse, provides in express terms how that right may be barred, and excludes the poAver to bar that right by will.” The holding in the present casé is inconsistent with this statement. It holds, in effect, that the right of one spouse to inherit the real estate of the other can not “be barred * * * by the sale of such real estate under execution * * * during the lifetime of the OAvner.” This holding affects the property interests of every creditor of a man or Avoman in the state who owns real estate in excess of the homestead exemption. The language of the statute is plain. It requires no construction. Formerly a sale of the wife’s real’estate to pay her debts barred the curtesy of the husband. Miller v. Hanna, 89 Neb. 224 . But a sale for the husband’s debts did not bar the dower right of the wife in his real estate. Butler v. Fitzgerald, 43 Neb. 192 . The legislature by this statute changed the law, placed husband and wife on a parity in this, as in other respects, and made the real estate of either spouse, in excess of the homestead exemption, subject to sale for his or her debts.

In Gaster v. Estate of Gaster, 92 Neb. 6 , the Avriter of that opinion also said: “No duty of this court is more manifest and exacting than the duty to avoid trespassing upon the province of the legislature. * * * It is not for this court to determine the legislative policy, nor to criticize that policy when adopted by the lawmakers. If apparently matters have been omitted in legislation which would have been supplied if brought to the attention of the *551 lawmakers, it is not within the province of the court to supply such omissions. Hasty and ill-considered legislation can be revised only by the legislature itself.” This is sound doctrine. It is equally true that, when the legislature has spoken in plain and unambiguous language, it is not for the-court to interpret language that needs no interpretation, or to disregard and virtually repeal the law. A law may seem to the members of this court to be unwise, but, nevertheless, it is the duty of the court to declare what has been plainly written, and not strain the language in Order to inject a new meaning, and thus attain a-result-that appears to it to be more desirable. It is for the legislature, and not for the court, to repeal or amend a statute.