23 Kan. 513 | Kan. | 1880
The opinion of the court was delivered by
As this court is inclined to agree with the plaintiff in error in this case, it will be proper for us to set forth and discuss the questions which the defendants in error claim are involved in the case. Such questions are as follows:
“First, Does a marriage remain valid, after decree rendered, leaving the party fully competent to marry, upon and after review of the decree of divorce and its annulment? Second, Is not the contract made between Ira Comstock and Avis F. Comstock a valid one, and does it not conclude the plaintiff in error in this action? Third, Had not Ira Comstock the right to exclude, by will, his first wife, Avis F. Comstock, from participation in his real estate, she having always been a non-resident of the state of Kansas? Fourth, What authority has the Michigan court to set aside the divorce?”
The answers to all the foregoing questions must, as we think, be against the plaintiff.
I. Upon principle and authority, the first question must be answered in the negative. (2 Bishop on Mar. and Div., §§753, 753a; Crouch v. Crouch, 30 Wis. 667.) When a decree of divorce is set aside and annulled, the marital relations of the parties are placed back in just the same condition as they were before the divorce was granted, and it can make no difference that the party to whom the divorce was granted has married in the meantime, or that a child has been born as the fruit of this second marriage; for the courts cannot be divested of their power to set aside decrees of divorce by the acts of the party procuring the divorce, or by the acts
II. Said contract between Ira Comstock and Avis F. Comstock was against public policy, and therefore void. Even Ira Comstock himself seems to have thought so; for, after paying the $75 which he paid at the time of making the contract, he forever abandoned the contract, and never afterward fulfilled any of its terms. Said contract was against public policy, and void, because the principal consideration therefor was, that Avis F. Comstock should refrain from all disturbance or molestation of said decree of divorce, which decree of divorce (it must be presumed from the fact that it was afterward set aside) was obtained illegally and wrongfully. As society has an interest in marriages and divorces, the public will not allow individuals to make valid
Now while we think that said contract was void, still would the defendants be in any better condition if it were valid? If it were valid, then Ira Comstock should have interposed it as a defense to the plaintiff’s proceeding to set aside said decree of divorce. Whether he did so interpose or not, we cannot tell from the record brought to this court; but, whether he did or not, we think the judgment setting aside said decree of divorce is equally conclusive against him, and that judgment virtually overturns and destroys the contract. Although Avis F. Comstock agreed that she would not disturb said decree of. divorce, yet she in fact did disturb it, and the decree was set aside; and that is the end of the matter. When the decree was set aside, she again became the wife of Ira Comstock, with all the rights, privileges and duties of other wives.
III. We do not think that Ira Comstock had the power to exclude by will, and against the consent of his wife, Avis F. Comstock, her right, after his death, to one-half of his property, real and personal, although she may never have been a resident of Kansas; and we think the statutes conclusively settle this question. (Secs. 8, 17, 31 and 32 of the act relating to descents and distributions, Comp. Laws of 1879, pp. 379, 380; §§1 and 35 of the act relating to wills, Comp. Laws of 1879, pp. 1001,1004.) The word “conveyance,” as used in the proviso of .said § 8, clearly does not include a will. A will is never a conveyance. A conveyance operates in the lifetime of the grantor, while a will does not operate until after the death of the maker. Of course, death transfers all property, and a will says where it shall go; but this does not render a will “a conveyance,” “which the husband has made.” It is the death that transfers the property. Besides, if we should hold that the will and death taken together constitute
IY. In the absence of-anything to the contrary, it must be presumed that the Michigan circuit court, which granted and set aside said divorce, had ample authority and jurisdiction to do the same. (Dodge v. Coffin, 15 Kas. 277, 280, 284-287.) It was a court of general jurisdiction; (Mich, const., article 6, §8;) and presumptively, it had sufficient jurisdiction to set aside one of its own decrees. Besides, the evidence introduced in the court below may have shown conclusively that it had such jurisdiction. None of the evidence has been brought to this court, and therefore we cannot say that it did not so show.
It follows from the foregoing, that the plaintiff, Avis F. Comstock, is entitled to one-half of all the property of Ira Comstock, deceased, not necessary for the payment of debts. The other half of said property should be disposed of in ac•cordance with the terms of the said will of Ira Comstock.
The judgment of the court below will be reversed, and •cause remanded for further proceedings in accordance with this opinion. ’ ■