145 A. 444 | R.I. | 1929
Rose A. Tierney filed a petition in the Superior Court for a divorce from bed and board from the respondent, for the custody of her minor son, and an allowance for a separate maintenance for herself and son. July 11, 1924, the petition was heard and granted, and on the same day a decree, prepared by the attorney for the respondent, was entered divorcing petitioner from bed and board and future cohabitation with the respondent until the parties become reconciled. The decree also contained the clause, which is now the subject of controversy: "It is further ordered, adjudged and decreed that until further order of this court said respondent shall pay to said petitioner for her support and support of said minor son the sum of forty-five dollars ($45) per week each and every week hereafter, the first payment hereunder to be made on July 14, 1924 and in lieu of dower." This decree was assented to in writing by counsel for both parties.
Sometime thereafter the respondent, who owned valuable real estate in the city of Providence, wished to place a mortgage thereon. The petitioner refused his request to join in the mortgage deed and to release her dower right. Thereupon respondent, on May 9, 1928, filed a motion to *106 modify the decree of July 11, 1924, and alleged therein it was the intention of the parties by the entry of that decree to free respondent's real estate from the inchoate dower right of the petitioner. The prayer of the motion is that said decree be modified so as to accomplish the intent of the parties and that petitioner be compelled to join with the respondent in a conveyance of said real estate and to release her inchoate right of dower.
After several hearings and the entry of a decree, which was later vacated, on June 13, 1928, a decree was entered denying the motion of the respondent to modify the decree. In this decree the court embodied a finding of fact that the decree of July 11 was intended by counsel and by the parties to dispose of the question of dower and that the petitioner was informed of the purpose and contents of the decree before it was entered; but that said decree did not in law operate as a release or a waiver of the petitioner's dower right and also that the Superior Court was without power to issue a mandatory order to compel petitioner to release her dower. From this decree both petitioner and respondent have taken appeals and the cause is here on the two appeals.
Assuming that petitioner assented to the terms of the decree and consented thereby to release her dower right, the question is: What is the legal effect of the clause "in lieu of dower"? At common law a wife could not relinquish her dower in the real estate of her husband by executing a release to him nor in any other way than by joining with him in a conveyance to a third person. 2 Scribner on Dower, p. 309. The jurisdiction of divorce is purely statutory, Sammis v. Medbury,
The appeal of the respondent is denied.
As this leaves the decree, until changed by further order of the court, effective in its other provisions, to which petitioner makes no objection, the appeal of the petitioner is also denied.
The cause is remanded to the Superior Court for further proceedings.