11 Ill. 105 | Ill. | 1849
The object of this bill is to enforce the specific execution of an agreement made in consideration of a marriage that was subsequently solemnized. It is contended that the decree for a divorce, obtained by the husband on account of the misconduct of the wife, extinguished all right on her part to insist on the performance of the agreement.
By the English law, divorces a vinculo matrimonii were only, granted for causes existing prior to the marriage—such as precontract, consanguinity, affinity,, and corporeal infirmity. The sentence of divorce pronounced the marriage void, as havings been unlawful ab initio. It avoided the marriage from the. beginning, and remitted the-parties to their original rights.
Divorces a mensa et fhoro were granted for causes arising after the marriage. The effects of such a. divorce were very different. The sentence did not dissolve the marriage, but only-provided for'the separation of the parties. The marriage, relation, and most of the rights and- duties growing out of it, still continued. The obligation of the husband to support the wife,, and his marital rights to her property, still subsisted. The. rights of the wife to dower and a marriage settlement were unimpaired.
The only divorce authorized by our statute is a vinculo matrimonii. It is granted as well for causes arising after as for-those existing before the marriage.. The consequences are,, however, much modified by the statute. The legitimacy of the. issue is not affected, except where the marriage is declared void, on the ground of a prior marriage. The wife does not lose her dower, nor the benefit of a jointure,, unless, the divorce is granted for her fault or misconduct. The Court granting the divorce-may allow her alimony. The decree does not avoid the marriage ab initio, except in the case of pre-contract, but only annuls it from the time the decree is pronounced. But, subject to these qualifications, the divorce is absolute. The marriage is dissolved, and all rights and obligations dependent on the existence of the marriage relation, are extinguished. The parties are no longer husband and wife, but are permitted to marry at pleasure. The husband is released from all obligation to maintain the wife, and his right to her separate property is at an and. The rights of the wife to his estate, and to receive a support from it, further than they are saved by the statute, or allowed by the Court in the way of alimony, are determined. It follows that this suit cannot be maintained. The sole object of the agreement, so far as the wife was concerned, was to provide her a support as the widow of Sommerville. Before any estate was vested in the trustees, the marriage was dissolved, for her misconduct, and she ceased to be his wife. He was no longer legally or morally bound to support her, or to carry into effect any provision previously intended for that purpose. His duty to support her was extinguished by the dissolution of the marriage, and with it fell her right to demand the execution of the trust. It is only in the capacity of wife, or widow, that she can compel the performance of the agreement. This must be the basis of her right to relief. She stands in neither relation. Ceasing to be the wife of Sommerville when living, she could not become his widow by surviving him.
If the estate had been conveyed to the trustees, in pursuance of the agreement, it is possible that her right to receive the income, would not be lost by the divorce; but upon this question we express no opinion. If there had been children of the marriage, it is probable that the agreement might be enforced for their benefit. But it would be done for the sate of the children, and not on account of the mother.
The statements in the bill, respecting the conduct of Sommerville, cannot be considered. It cannot now be insisted that he was not entitled to the divorce. The decree must be held Conclusive of the matter in this collateral proceeding.
Nor can the suit be maintained for the benefit of the heir of Charles and Rebecca Milburn, to whom the estate was to go, in default of issue of the marriage. Neither the parents, nor the 'child, participated in the consideration on which the agreement was founded. It was a voluntary trust as to them. The principle is well settled, that a Court of Equity will not lend its aid to establish a trust at the instance of mere volunteers. If the transaction, on which a voluntary trust is attempted to be established, is still executory or incomplete, the Court will decline all interference in the matter.
The decree of the Circuit Courtmust be reversed, with costs, and the bill dismissed.
Decree reversed.
