62 Barb. 109 | N.Y. Sup. Ct. | 1862
By the Court,
The only question presented by this appeal is whether the decree of separation between the defendant, Cynthia, and her husband, a mensa et thora,
The decree expressly declares that the sum of $450 shall be “ in lieu, and satisfaction of all alimony, dower, right of dower, and all other claims which she, the complainant-, may or can have, to the property of the defendant.”
If the court of chancery had power to make that part of the decree above quoted, the widow is unquestionably barred ; but if not, her right to dower is unaffected by it.
It is undoubtedly true that -the court of chancery had no jurisdiction to grant divorces, independent of the statutes on that subject. (Burtis v. Burtis, Hopk. Ch. R. 557.) Our court of chancery had the same general jurisdiction as had the English chancery. In England, the ecclesiastical courts had exclusive jurisdiction to grant divorces a mensa et thora. Parliament alone having the power to dissolve the marriage contract absolutely. (Bishop on Mar. and Div., §§ 768 to 770.)
We must have recourse to the statute, then, for the power exercised in this case, if it exists. The provisions relating to separation and limited divorces are found in 3 R. S. 237, §§ 63 to 70, 5th ed., both inclusive. After specifying who may apply, and the cases in which application may be made, and declaring what the bill shall contain, and the defenses which may be interposed, the statute proceeds as follows :
“ § 67. Upon decreeing a separation, in any such suit, the court may make such further decree as the nature and circumstances of the case may require, and may make such order and decree for the suitable support and mainte-. nonce of the wife and her children, or any of them, by the husband, or out of his property, as may appear .just and proper.
§ 69. When a decree for a separation forever, or for a*120 limited period, shall have been pronounced, it may be revoked at any time thereafter, by. the same court by which it was pronounced, under such regulations and restrictions as the court may impose, upon the joint application of the parties, and upon their producing satisfactory evidence of their reconciliation.”
These provisions were in force when the decree under consideration was granted. It will be seen, from these sections, 1st. That a separation is not necessarily a complete and final separation of the parties; that a reconciliation is contemplated, and power given to the court to give it effect. And,- 2d. That the alimony directed to be paid is not a final, distribution of the property of the h-usband between him and his wife, but is, on the contrary, a temporary provision for her support elsewhere than in her husband’s house, until they are reconciled.
In carrying out this construction of the statute, the vice chancellor (Willard) held, in Burr v. Burr, (see his opinion, 10 Paige, 22, 25,) that a gross sum for alimony, in this class of cases, cannot be allowed. And while the chancellor does not, on the appeal from the decree of the vice chancellor, expressly assent to it, yet he does not dissent from it. Indeed the vice chancellor fortified his position with cases which it is difficult to escape. If a gross sum cannot be allowed, but only a yearly allowance for support, it is impossible to say that an allowance for such a purpose can be in lieu of dower, which is one-third part of the lands of which the husband was seized at the time of his death, or during the coverture.
Again; the occasion of the allowance is, the impossibility of the wife’s living with the husband, by reason of his improper treatment of her. His misconduct cannot relieve him from his duty to support her; and the court merely compels him to give her that support abroad which he will not give her in his own house. The object of the
Morgan, Mullin and Bacon, Justices.]
Vice Chancellor Willard, in the case of Burr v. Burr, cited supra, says a decree- for a separation or limited divorce does not per se affect the' question of property between the parties. The wife is still entitled to dower in the real estate of which her husband is or shall be thereafter seised; and she can also claim her distributive share of his personal estate, in case he dies intestate, in the same manner as if no such decree had been pronounced. The statute has made a difference, in this respect, between a limited divorce a mensa et thora and a divorce a vinculo matrimonii, (Wait v. Wait, 4 N. Y. 95,) where the adultery of the wife is the basis of the decision.
In Bishop on Marriage and Divorce, (§ 680,) it is said: This-(limited), divorce does not, of its own force, at common law and' without the aid of statutes, change the relation of the parties, as to property. Thus it neither takes away the right of the wife to dower, nor entitles her to recover it until after the death of her husband.” , The statute does not in terms authorize the court to make any decree affecting the right of dowér. The legislature contemplated a reconciliation of the parties as probable; hence the provision made for the wife is a temporary one.
It would be wholly inconsistent with the provisions and policy of the statute to authorize a decree which should determine the rights of the wife in the estate of the husband, by giving a share of it in lieu of her dower and distributive share. I find no precedent or authority for any such decree.
For these reasons, I am in favor of affirming the judgment of the referee, with costs to the widow, out of the estate.
Judgment affirmed.