167 Wis. 328 | Wis. | 1918
Lead Opinion
Sec. 13, art. XIV, of our constitution provides that
“Such parts of the common law as are now in force in the^ territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of the state until altered or suspended by the legislature.”
This constitutional provision is invoked by appellants to sustain the contentions that ch. 34 of 13 Edw. I., enacted in 1285 and called the Statute of Westminster 2, is in force in Wisconsin. The statute reads:
“And if a wife willingly leave her husband, and go away, and continue with her advouterer, she shall be barred for every of action to demand her dower, that she ought to have*330 of her husband’s lands, if she be convict thereupon, except that her husband willingly, and without coertion of the church, reconcile her, and suffer her to dwell with him; in which case she shall be restored to her action.”
The reason for the enactment of such a statute was that under the common law of England adultery was not a cause for divorce, and a husband whose wife was guilty had no remedy to bar her of her dower rights. This statute gave him a remedy in case his wife voluntarily left him to live in adultery with another and he did not willingly reconcile her.
The question arises whether our legislation upon the subject of dower has superseded this ancient statute by enactments which must be deemed to stand in lieu thereof. If our statutes provide substantially .the same or similar adequate remedies to the husband and are as broad or broader in their scope than the .old statute, then it must be deemed suspended by the legislature within the meaning of the constitutional provision quoted. But if our legislation cannot be held to stand in lieu of the old statute or to have altered it, then it forms a part of the law of the state. Huber v. Merkel, 117 Wis. 355, 364, 94 N. W. 354.
The Territorial Statutes of 1839, p. 140, § 5, provide:
“That a wife being a defendant, [in an action for divorce] and convicted of adultery as aforesaid, shall not be entitled to dower in the husband’s real estate, or any part thereof, nor to any distributive share in his personal estate on his dying intestate.”
The Revised Statutes of 1849, p. 397, ch. 79, sec. 25, contain this provision:
“When the marriage' shall be dissolved by the husband being sentenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery committed by the husband, or on account of his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to her dower in his lands, in the same manner as if he*331 were dead; but sbe shall not be entitled to dower in any other case of divorce.”
This was re-enacted as sec. 25, ch. Ill, p. 626, of the Revised Statutes of 1858. In the Revised Statutes of 1818, sec. 2373, it was modified to read:
“When a marriage shall be dissolved by the husband being sentenced to imprisonment for life, the wife shall be entitled to her dower in his lands in the same manner as if „he were dead; but she shall not be entitled to dower in any other case of divorce from the bond of matrimony.”
- The statute of 1898 left this section intact and it remained so until 1909, when by sec. 7 of ch. 323 it was amended to read:
■ “When a marriage shall be dissolved by the granting of a decree of divorce from the bonds of matrimony, the wife shall not be entitled to dower in any lands of the husband.”
Such has been the law since. Adultery has been a cause for divorce from the bonds of matrimony both before and ever since the organization of the state. See § 1, p. 140, Terr. Stats. 1839, and sec. 2356, Stats. 1917, and notes.
We see, therefore, that our statutes have provided an adequate and broader remedy to the husband than did the Statute of Westminster 2. Under that he could bar his wife’s dower only in case she voluntarily left him and willingly lived in adultery with another and in case he did not reconcile her. Under our statutes a single act of adultery on her part is cause for divorce from the bonds of matrimony, and such a decree bars her dower. That a husband,- for religious or other reasons, may not desire to avail himself of the remedy given him by law and divorce his wife, is no reason why the rights and obligations flowing from a continuance of the marital relation should be abrogated and ancient remedies substituted therefor. The law gives him a remedy. It is optional with him to use it or not. Since our legislation has given adequate and broader remedies than that afforded
The same result was reached in Lakin v. Lakin, 2 Allen (84 Mass.) 45, and in Bryan v. Batcheller, 6 R. I. 543, 18 Am. Dec. 454, on practically the same grounds. In New York the statute was substantially re-enacted in 1781, but was repealed in 1830. 2 Scribner, Dower (2d ed.) 536. It appears, though, to be referred to in Schiffer v. Pruden, 64 N. Y. 47, as though applicable to' a case coming within it and not controlled by state statutes.
In many states where it has been held that there are no specific statutory enactments covering in substance the provisions of the English statute the latter has been declared to constitute the law of the state. 9 Ruling Case Law, 605; 2 Scribner, Dower (2d ed.) 531 et seq.; 14 Cyc. 933; Bell v. Nealy, 1 Bailey, L. (S. C.) 312, 19 Am. Dec. 686; Daniels v. Taylor, 145 Fed. 169. It also seems to be in force in Pennsylvania (Reel v. Elder, 62 Pa. St. 308) and in New Hampshire (Cogswell v. Tibbetts, 3 N. H. 41).
Much as the court in this case might desire to find a lawful bar to the dower rights of the petitioner, who from an equitable point of view does not deserve charitable consideration, it is not deemed to be within its province to engraft upon our jurisprudence exceptions where the legislature has covered the subject and made none. It is to be observed also that the deceased had it within his power ever since his wife abandoned him to bar her dower by an action of divorce on the ground of adultery. He did not see fit to do so, for
By the Court. — Judgment affirmed.
Dissenting Opinion
Tbe following opinion was filed May 20, 1918:
(dissenting). I think tbe claimant should be held to be barred of her dower by tbe rule of tbe common law and also as having been waived by her own deliberate act and tbe judgment be reversed.
Tbe principle of tbe common law as amended by tbe Statute of Westminster and by which an adulteress, by continued absence from her husband, lost her dower, was in existence at tbe time of our Revolution, was suitable to our condition, and clearly in harmony with our constitution and statutes, and is therefore still a part of tbe common law of this country. Sec. 13, art. XIV, Const.; Will of Rice, 150 Wis. 401, 445, 136 N. W. 956, 137 N. W. 778; Harrigan, v. Gilchrist, 121 Wis. 127, 219, 99 N. W. 909.
Tbe mere giving of an additional remedy such as is given in tbe divorce action ought not to be considered as an abrogation of such a common-law principle. Tbe divorce proceedings require some affirmative action by tbe husband in order to divest tbe wife of her inchoate right of dower. Tbe common law deprives tbe wife of tbe same inchoate right of dower by reason of her own action and without requiring any proceedings by tbe husband. These two do not appear to me to be in any way inconsistent, or tbe one a substitute for tbe other. Nor should be be driven to tbe one by anything short of a legislative destruction of tbe other.
Tbe reasoning of Justice Van Devanter in Daniels v.
In this state tbe barring of dower does not depend solely on statutory provisions. It may be lost by silence when •justice required speech, thereby creating an estoppel. H. W. Wright L. Co. v. McCord, 145 Wis. 93, 128 N. W. 873. And surely estoppel comes to us through tbe common law. Coke, Litt. 352a.
A married woman may lose a known valuable right by waiver or relinquishment. Somers v. Germania Nat. Bank, 152 Wis. 210, 138 N. W. 713.
In this case her right was based solely upon the marriage relationship. That it was a known right is quite apparent from the filing of her claim in the month of July following his death. Knowingly she voluntarily abandoned all the relative duties and obligations on her part and lived away from her husband from 1871 until his death in September, 1914. During these forty-three years that she “lived her own life” as the saying is, she bore ten children begotten by others than the deceased. Such an accumulation of cumulative repudiations of the marital obligations ought to require a judicial declaration that her repudiation thereof was entire and absolute.
The faithless ought not now to be rewarded as though faithful.
