22 F. Cas. 704 | U.S. Circuit Court for the District of Iowa | 1877
In respect to the second special defence to the action, I am of opinion that the statute of Westm. II. (13 Edw. I. c. 34), upon which that defence is based, and which is: “If a wife willingly leave her husband, and go away, and continue with the adulterer, she shall be barred forever of action to demand her dower ihat she ought to have of her husband’s lands, if she be convict thereupon, except that her husband. willingly, and without coercion of the church, reconcile her, and suffer her to dwell with him; in which case she shall be restored to her action” — never having been expressly adopted in Iowa, is not in force therein, nor is it part of the law of the state. The ground of this conclusion is that its provisions are inconsistent with the legislation of the state on the subject of dower, or the widow’s right in the estate of her husband, and the mode in which such right may be barred or relinquished, and with the statutory provisions in respect to divorce on the ground of adultery. The reasons which support this conclusion, under similar legislation, are so forcibly stated by the supreme judicial court of Massachusetts, in Lakin v. Lakin, 2 Allen, 45, that I content myself with a reference to that case, and to Bryan v. Batcheller, 6 R. I. 543, and Lecompte v. Wash, 9 Mo. 551, Without here setting forth the arguments upon which they • rest. This conclusion concedes that the fee simple provision for the widow made by the act of 1802, which is a substitute for dower, is governed by the same principles as to forfeiture that apply to the right or estate in dower; but the point need not be decided, for the concession is the view most favorable to the defendants. Under the act of 1802, the rights of husband and wife in the estate of the other are reciprocal and the same; and it would hardly be contended that the statute of Westminster would apply to deprive the husband, who had committed adultery, of his right to one-third of the estate of his wife.
As respects the third special defence, I am of opinion that the verbal transaction therein set forth does not amount to a relinquishment, or legal bar, to dower or the widow’s right; and, in view of the allegation that there had been a valid divorce, which, of itself, would be a bar to dower, and the prospective nature of the alleged release, this transaction is not' of such a nature, whatever might be its effect in equity, as to amount to a bar to this suit. See McKee v. Reynolds, 26 Iowa, 578, and cases cited. Both pleas are insufficient. Demurrer sustained.
