29 Kan. 585 | Kan. | 1883
The opinion of the court was delivered by
On November 12,1875, and prior thereto, Burton Crane and Sibby Crane, now Sibby Fipps, were husband and.wife. On that day, Sibby Crane obtained ¡ decree granting to her a divorce and $50 alimony, from h r said husband, on account of the “fault” and “aggression” of her husband. At the time when the decree of divorce was rendered, Burton Crane owned 240 acres of land, situated in Johnson county, Kansas. Afterward, Sibby Crane was married to one Joseph Fipps, with whom she is still living. Afterward, Burton Crane died, leaving as his heirs the following children, to wit: William Crane, Thomas Crane, Frank Crane, Peter Crane, Samuel Crane, Carter Crane, and Susan Crane Andrews. Burton Crane was still the owner of said land when he died. Sibby Crane Fipps afterward commenced this action against the children and heirs of Burton Crane, asking to have “her dower” “set off to her, in the lands aforesaid.” The defendants demurred to the plaintiff’s petition, on the ground that it did not state facts sufficient to constitute a cause of action; but the court below overruled the demurrer, to which ruling the defendants excepted, and now bring the case to this court for review. They claim that the plaintiff below, defendant in error, has no right of dower or any interest in the land in controversy.
The statutes upon which this case is to be decided are as hereinafter stated and quoted. Prior to 1868, there was a statute in force relating to dower, giving the widow at her election dower in her deceased husband’s real estate. (Comp. Laws of 1862, ch. 83.) But in 1868 this statute was repealed, and the estates of dower and by curtesy were abolished. (Gen. Stat. 1868, eh. 33, § 28; Comp. Laws
“Sec. 646. When the divorce is granted for the fault of the husband, the court may adjudge to the wife a reasonable sum as alimony, to be paid by the husband in gross, or in installments, out of his estate; and any such allowance shall have the same effect, and may be enforced, as any other money judgment.” (Gen. Stat. 1868, ch. 80, p. 758.)
Afterward, and in 1870, this section was amended so as to read as follows:
“Sec. 646. When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to all her lands, tenements and hereditaments not previously disposed of, and restored to her maiden name, if she so desires, and shall be allowed such alimony out of her husband’s real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of said divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable; and if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband, not allowed her as alimony, of which he was seized at the time during the coverture, to which she had not relinquished her right of dower; but if the divorce shall arise by reason of the fault or aggression of the wife, she shall be barred of all right of dower in the lands, of which her husband shall be seized at the time of the filing of the petition for divorce, or which he may thereafter acquire, whether there be issue or not; and the court shall order restoration to her of the whole of her lands, tenements or hereditaments not previously disposed of, and also such share of her husband’s real or personal property, or both, as to such court may appear just and reasonable.” (Comp. Laws of 1879, ch. 80, p. 691.)
The plaintiff relies upon the following words contained in amended § 646, to wit:'
“And if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband not allowed her as alimony, of which he was seized, at the time during coverture, to which she had not relinquished her right of dower.”
It is claimed, however, that the word “dower” in said provision should be construed to mean inheritance, and therefore that she should take under the laws relating to descents and distributions. Now such cannot be the case; for jf the legislature had intended inheritance, it would have said so. Besides, to construe the word “dower” to mean inheritance would do great injustice, which we cannot suppose the legislature intended. In fact, however, we suppose that the leg
Now we do not think the legislature ever contemplated or intended any such difficulties. It really intended that said clause in § 646 of the civil code should be inoperative until some other legislation should be had, giving it operation without such great inconvenience and injustice as must ensue if it is given operation without additional legislation.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.