Reports of cases argued and decided in the Supreme Court of the State of Texas during the latter part of Galveston term, 1858, and the whole of Tyler term, 1858. Volume 21. Page: 640
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716 HAMILTON v. FLINN. [Tyler,
one-fourth of the estate, though under the law at the date of
the will, the disposable portion amounted to more than the
one-fourth. Nor where a will was executed prior to 1840, the
death being afterwards, has there been, it is believed, an inquiry
whether the formalities under the former laws, as to
the execution of wills had been observed, provided there
were a substantial compliance with those prescribed by the
act of 1840. Such is believed to have been the construction
and rule in relation to the matters suggested. That the will
speaks as to those matters not from its date, but from the
death of the testator, and that it is spoken to and controlled
by the laws in force at that time.
[7 1 6] The objection to bringing the will of Mrs. Flinn
within the influence of the act of 1856, is, in substance, that
this would give the act a retrospective operation, and if so,
it would conflict with the constitution. To determine upon
the soundness of this position it will be necessary to have
clear ideas of the meaning of the retrospectiveness or retroactivity
of a law, and this is defined with great precision and
fullness in Society for Prop. of Gospel v. Wheeler, 2 Gallison,
105, by Mr. Justice Story, to the effect that a statute which
takes away or impairs a vested right acquired under existing
laws, or creates a new obligation, or imposes a new duty, or
attaches a new disability in respect to transactions or considerations
already past is to be deemed retrospective or
retroactive. Cordova v. The City of Galveston, 4 Tex. 470.
Escriche, in his dictionary, at the conclusion of a masterly
treatise on this subject, says that in the opinion of some, the
rule and its modification may be comprehended in the single
proposition, namely: that laws do not have a retroactive
effect, although they may benefit individuals and the public,
unless they prejudice the right of a third person already acquired.
The test then, of retroactivity, is not whether a
hope, expectancy or a mere inchoate right, but whether a
vested right " to possess certain things according to the laws
of the land " (3 Dall. 349) is impaired or defeated.
It is very clear that the rights of forced heirship, under the
law of 1840, were, although inchoate, but a mere expectancy
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during the latter part of Galveston term, 1858, and the whole of Tyler term, 1858. Volume 21., book, 1882; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28553/m1/646/: accessed January 31, 2023), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .