18 Neb. 395 | Neb. | 1885
This action was'brought by the plaintiff against the defendant in the district court of Fillmore county to obtain a ■divorce, upon the grounds of cruelty and failure to provide •a suitable maintenance. The cause was referred to a referee, who made a report in favor of the plaintiff. The report was confirmed and a decree of divorce rendered, with permanent alimony to the amount of $2,000, to be paid by installments. • The defendant appealed to this court. The plaintiff also appealed from the decree for alimony. Before the hearing the defendant died, and the cause so far as it relates to alimony was revived. It is claimed on behalf •of the plaintiff that the decree for alimony is not for a sufficient amount, and also that she is entitled to dower in the ■estate of the defendant; while on behalf of'the defendant’s estate it is alleged that the amount of alimony is excessive, and if, in addition to it, the plaintiff is entitled to dower in the ■estate, it will be impossible to raise the amount without her signature to the deeds, the property being exclusively real ■estate. A considerable amount of temporary alimony was
Under a somewhat similar statute the court of appeals of New York held, in Wait v. Wait, 4 Comst., 95, that a divorce for adultery was prospective in its operation, and had no other effect on the marriage relation than such as was declared by statute, and hence that such divorce did not deprive the wife of her right of dower. Burr v. Burr, 10 Paige, 25-26. Under the. New York statute, however, the defendant found guilty of adultery was prohibited from marrying again during the life-time of the plaintiff. 2 R. S., 146, § 49. This rule seems to have been extended by the courts to other cases of misconduct of the husband.
In this state an absolute decree of divorce, if unappealed from, is final as to the rights of the parties. Our statute
Dower in this state is only allowed to the widow who was the wife of the person dying at the time of his death. Kent says that the next species of life estates created by the act of the law is dower. It exists where a man is seized of an estate of inheritance, and dies in the life-time of his wife. 4 Kent Com., 35. Coke Litt., 30a. 2 Blacks. Com., 130. The effect of a divorce is to put an end to all rights of property depending upon the marriage, and not actually vested, such as the right of dower in the wife, etc. Rice v. Lumley, 10 O. S., 596. Billan v. Hercklebrath, 23 Ind., 71. Given v. Marr, 27 Me., 212. Barbour v. Barbour, 46 Id., 9. Whitsell v. Mills, 6 Ind., 229. Burdick v. Briggs, 11 Wis., 136. Miltimore v. Miltimore, 40 Penn. St.,151. Slilphen v. Houdlette, 60 Me., 447. It is presumed that the court in rendering a decrfee of divorce will award alimony in proportion to the property of the defendant. This must include all claims of the plaintiff upon the property of the defendant. If either party is dissatisfied with the decree the case may be brought into this court for review; but the final decree is conclusive upon the rights of the parties, and bars the rights of either party to any further claim upon the property of the other. The most that can be claimed for our statute is, that upon the decree of divorce being rendered for any of the causes above named the court may in the nature of alimony award the plaintiff dower in the lands of which her husband was seized at the date of the decree. In such case, however, the right to dower is not contingent upon the death of the husband, but accrues at once upon the rendition of the decree. Thus, in Smith v. Smith, 13
Judgment affirmed.