4 Barb. 192 | N.Y. Sup. Ct. | 1848
Lead Opinion
This case presents the distinct question, whether, after a dissolution of the marriage by a decree of the court of chancery of this state, for the adultery of the husband, the complainant in that suit, after the death of the defendant, can have dower of the lands of which he was seised during coverture ? It is believed that this is the first time this question has directly arisen in this state, and as it is of some importance, it calls for all due consideration. Eminent men, as we shall see in our examination of authorities, have
The statute which authorized this divorce, after providing for .exhibiting a bill, &c. in cases of adultery, reads as follows:
That if it shall satisfactorily appear to the court of chancery, either by the trial of such feigned issue or issues, or by the proofs taken and reported by the master aforesaid, that the defendant has been guilty of the adultery charged in the bill, it shall be lawful for the court to decree that the marriage between the parties shall be dissolved, and each party freed from the obligations thereof.” (2 R. L. 198, § 4.) The same section saved the legitimacy of the children, and allowed the complainant to marry again, but prohibited the offender from so doing. The 5th section authorized the court, by a further decree or order, .when the wife should be the complainant, to .compel the defendant to provide for the maintenance of the children of the marriage, and also to provide such suitable allowance for the support of the complainant as to the court should seem just, according to the circumstances of the parties, and to give security therefor, and in default thereof to sequester his personal, and the rents and profits of his real estate, for that purpose. By the 6th section, the property of the wife, at the time of the decree, was restored to her. Section 8th barred dower if the wife were defendant. This act was passed April I3th, 1813, and was substantially a re-enactment, xvith some additional provisions, of the statute on this subject, passed March 30th, 1787, giving the power to the court of chancery to divorce a vinculo for adultery. (1 K. & R. 93. 2 Kent, 97.)
The history of the law of divorce for adultery is somewhat curious. The doctrine of the Roman Catholic Church is, that marriage, xvhich xvith them has attained the dignity of a sacrament, is indissoluble. Though it seems this xvas not so at an early period. (Macqueen Pr. of H. of L'ds, 471, n. g. And see Macqueen on Husband and Wife, 199, 202, 203, 204.) Whatever might have been the practice before, and probably there was not perfect uniformity in Christendom, after the declaration of the council of Trent on the subject, in 1563, in
Dower has varied in different ages and in different countries
Whatever definition we may give to it, its object is well defined. “ Dower, in the common law, is taken for that portion of the lands or tenements which the wife hath for term of
Three things are necessary to the consummation of the widow’s right of dower: “ marriage, seisin, and death of her husband. (Co. Lit. 31, a. 1 Cruise, 136.) In the case under consideration, the marriage and seisin during coverture, I think were prima facie shown. But it is contended that the third requisite, the death of the husband, has not been shown ; or rather that the intervening divorce of the parties prevents the consummation of the right. After a careful examination of the subject, I am inclined to think this objection valid, both upon principle and authority.
All the books concur in the rule that no dower is recoverable unless the marriage continues until the death of the husband. “But it is necessary that the marriage do continue, for if that be dissolved the dower ceaseth, ubi nullum matrimonium ibi nulla dos. But this is to be understood when the husband and wife are divorced, a vinculo matrimonii as in case of precontract, consanguinity, affinity, &c. and not a mensa et thoro as for adultery.” (Co. Lit. 32, a.) But it is said that this.does not apply where there has once been a valid marriage. It is true, as we have seen, that, at the time Coke wrote, divorces a vijiciclo by judicial sentence rendered the marriage invalid ab initio ; but the language is general, that a divorce a vinculo takes avray dower. In the cases of canonical disabilities, this divorce dissolves the marriage contract. The marriage wras only voidable, and was valid until dissolved. And although the spiritual courts, for want of power, cannot divorce except for pre-existing causes, parliament can; and a dissolu
The divorce in the case under consideration was in all respects similar to a divorce by parliament, except that our law, then, (and now,) prohibited the offender from marrying again during, the life of the complainant; which may be, but except in one instance, I believe, has not been done in England. And yet, I can find no instance on record, of dower being claimed after a parliamentary divorce there. Absence of adjudication is not conclusive evidence of the law, but raises an adverse presumption. (Ram on Judg. 156.) It is true that but three divorces on the prayer of the wife, have been granted; and the first was about 130 years (in 1801,) after parliament had settled the question of power and had divorced on the prayer of the husband. (Macqueen H. of L. 473, 475.) But as it has been settled for nearly half a century, that the wife may have relief by legislative interference in England, it is a little singular that this question had not been agitated if in truth the rule is that dower may be claimed after a dissolution of the marriage. Again; when parliament grants a divorce it almost invariably requires the complainant to provide for the support of the guilty wife. (Jee v. Thurlow, 4 D. & R. 17. S. C. 2 B. & C.
But it is believed the terms used, the very language of the law, also clearly imply that the marriage must continue until the death of the husband. Dower may be said to have been established by Magna Charla (1215,) or at least to have obtained a permanent foundation by that charter and four others, viz: the first great charter of Henry 3d, (1216,) 2d do. (1217,) and 3d do. (1224,) and first do. of Ed. 1, (1297.) In all of these as well as in the preliminary articles of Magna Charla, the word 11 widow ” is the only word used to designate the person entitled to dower. “ No widow shall give any thing for her dower or marriage after the decease of her husband,” &c. (Articles of Mag. Char. 4.) “A widow after the death of her husband, shall immediately and without difficulty, have her marriage, and her inheritance, nor shall she give any thing for her dower,” &c. (Mag. Charta, ch.7.) “A widow after the death of her husband, shall immediately and without difficulty, have her freedom of marriage and her inheritance; nor shall she give any thing for her dower,” &c. (First Great Charter of Hen. 3, ch. 7.) Chapter 7 of the 2d and 3d great charters of Henry 3d begins in the very same words; and also chapter 7 of the great charter of Edward 1.
And the old forms of pleadings, unless she had again mar-
There is nothing unjust or harsh in this construction. If divorced a vincula, on her complaint, she is at liberty to marry again, to seek another protector, to become the doWeress of the lands of another. The statute also gave her back her own lands. Perhaps this was necessary, as we have seen the husband may have had an interest in her lands, though if the divorce rescind the contract of marriage, it has a retroactive effect. (And see 1 Hilliard on Real Prop. 51; 4 Kent, 34 ; 10 Paige, 424.) In addition to this, the court, as we have seen, was required to “ compel” the defendant to provide, not only for the maintenance of the children of the marriage, but a suitable allowance for the support of the complainant, and for life, and to give security therefor. Whereas the statute then in force in relation to decrees of separation did not require the defendant to give security, probably for the reason that as the relation continued he also continued bound to support her as much as when cohabiting. The power of the court under this act and the law of 1815, (page 225,) was probably sufficient to compel security, but the difference in the two cases is quite observable. Probably in this case, a sum in lieu of the support she might claim by the order of the court, was secured by a mortgage given on an amicable adjustment. But, if not otherwise arranged, the order for support was a matter of course. It may be remarked, too, that oftentimes this step on the part of the wife is not wholly compulsory, though always justifiable. Dower may be relinquished by the wife by release, or for jointure, or by accepting a provision in a will. Perhaps this provision may be considered somewhat analogous, though I prefer to put the matter where it belongs, upon strict legal principles. Nor would I in the least bend the law to screen the adulterer.
There is another argument, growing out of the nature of the divorce, that strengthens my conclusions. By this decree the marriage between the parties is dissolved, and each party freed from the obligations thereof. Marriage is a contract, and it may be important to look into the effect of this dissolution. The legislature, in all the acts, guard against the illegitimacy of the children. The fair implication from this is, that it was supposed it might, as in case of a divorce a vinculo, in the ecclesiastical courts in England, have a retroactive effect, and be in truth, a rescission of the contract, in the legal sense of that term. But this implication is met by the additional sections restoring to her her property when complainant, and cutting off her dower when defendant, both of which were certainly supererogatory if the divorce rendered the marriage void ah initio. Perhaps these provisions were added to prevent doubts and mistakes in matters so important, and no inference either way should be drawn from them. We are then to decide, upon general principles, what is meant by a dissolution of the marriage. Shelford says: “ How far the title to dower or curtesy is affected by divorce, must depend on the nature of the divorce, for if it be a dissolution of the marriage, the rights consequent upon it will cease. But where the bond of matrimony is not dissolved, these rights may continue.” (Shelford on Mar. & Divorce, 478.) And a divorce a vinculo, he remarks, bars dower, (Id. 420,) and that a legislative divorce is a complete dissolution. (Id. 476.) Macqueen speaks of it as a “ rescission.” (Macqueen’s H. of Lords, 472, 480.) And again, in another work, speaking of Catholic divorces, he says : “ For while the true object, in most cases, was to rescind, the avowed object in all was to annul the matrimonial contract.” (Macqueen on Hus. and Wife, 197, 8; and see Id. 200, 201.) And speaking of the right of the offender to marry again after a divorce by an act, he says, “ And as the marriage is annihilated by the act,
Again; this conclusion is sustained by authority; and whatever may have been the reason originally given for the rule, after it has been so often repeated and never doubted, it would be impolicy now to adopt a different one, particularly as it affects real estate. We have noticed the language of the early charters, and of our own statutes, defining and securing dower; and the forms of pleading in actions to enforce it, which are evidence of the law. (Ram on Judg. 13.) The text writers too, and I believe without exception, adopt the view here taken. Coke, as we have seen, declares in explicit terms that the marriage must continue until the death of the husband. The same rule is substantially repealed by Rolle, Yiner, Comyn, Blackstone, Cruise, and Clancy, in England, and Kent, Dane, and Hilliard, in this country. (1 Rolle, 680. 9 Vin. 211. Comyn's Dig. Dower, (A. 2). 1- Cruise, 136, . 140. 2 Bl. 130. Clancy on Hus. and Wife, 197. 4 Dane's Ab. 663. 1 Hilliard on Real Prop. 130. 4 Kent, 54, 52, n.) The late Chancellor Kent very properly treats the provision for the support of the wife, to which she is entitled by our statute, as dower or indemnity for the loss of her dower; and says in relation to the clause of the act barring dower in case of a divorce for the misconduct of the wife, that “ there was no need of the provision, for as the law always stood if the doweress was not the wife at the death of the husband, her claim of dower fell to the ground,” and that “ in case of a divorce, a vinculo, dower would cease of course.” (4 Kent, 52, n.) Mr. Justice Bronson, in Reynolds v. Reynolds, (24 Wend. 196,) and Vice Chancellor, (now Mr. Justice) McCoun, in Day v. West, (2 Edw. V. C. Rep.. 596,) take the same view. The point was
Believing then that the statute, by making ample provision for the support of the wife, has fully answered the great end of dower; that it would be an anomaly in law for a contract after it is dissolved, and each party freed from the obligations thereof, to be still in part subsisting and executory; that the plaintiff does not answer the description of person to whom the law awards dower; and that it has been the received opinion for centuries that the marriage must continue until the death of the husband, to consummate title to dower; my opinion is against the plaintiff in this case.
Cady, P. J. concurred.
Dissenting Opinion
The main question raised by this bill of exceptions is, whether the complainant is entitled to dower in lands whereof her husband was seised during the coverture, prior to the divorce for adultery committed by him, she being the innocent and he the guilty party. As the divorce took place in 1825, the cause must be decided, so far as the divorce is concerned, upon the law as it stood then.
When the case of Burr v. Burr was before me as vice chancellor of the 4th circuit, I intimated that “ after a divorce for
The act of 1787, concerning dower, directs that there shall be assigned to the widow, for her dower, the third part of the lands of her husband, which were his at any time during the coverture. (1 R. L. 56.) This is the same as is declared by Little-ton, § 36, of Dower. (Coke Lit. 30, b. 2 Bl. Com. 129. 4 Kent’s Com. 35. Park on Dower, 47.) Three things must concur to entitle the widow to an estate in dower, viz. marriage, seisin of the husband, and death of the husband. The marriage must be a lawful one, from which a legitimate issue may spring, capable of inheriting the land of which the husband was so seised. And according to the elementary books, (2 Bl. Com. 130; 4 Kent’s Com. 54,) she must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed ; for ubi nullum matrimonii, ibi nulla dos. All the modern writers derive this doctrine from Coke Lit. 32, a, who limits the meaning of the term divorce a vinculo matrimonii to a divorce, rendering the marriage void from the beginning, as for precontract, affinity, consanguinity, &c., and not a mensa et thoro only, as for adultery. In speaking of a divorce a vinculo matrimonii, as depriving the widow of dower, the term must be understood as relating only to such divorce as makes the marriage void from the beginning, and which consequently bastardizes the issue. (Shelford on Mar. and Div. 706.)
The divorce in this case was granted under the 4th section
In Connecticut, a divorce for adultery is a vinculo matrimonii ; and all the consequences of divorce take place, except that the issue are not bastardized; and the wife being the innocent party is entitled to dower. (Reeve’s Dom. Rel. 208.)
The supreme court of Massachusetts, in Davol v. Howland, (14 Mass. 219,) held, that a wife divorced for the adultery of her husband, is entitled to dower in all the lands of which he was seised during the coverture, although he may have conveyed them before the decree of divorce. This latter case arose under the statute of Massachusetts of 1785, which gave to the wife divorced on account of the adultery of the husband, dower in any lands whereof he was seised during coverture, in the same manner as if he were naturally dead. The case, therefore, does not settle any common law principle, but the statute marks the sense of the people with respect to the rights of the
It is clear, that at common law, a divorce for the adultery of the husband did not bar the wife of dower. (Coke Lit. 32, a.) Nothing short of a divorce a vinculo worked that consequence; and by divorce a vinculo, was meant a divorce declaring the marriage void from the beginning, bastardizing the issue, and placing the parties in all respects as if no marriage had existed. The act of 1813 did not authorize a divorce a vinculo for adultery, in the common law sense of that term. It did not make use of that term at all. It merely dissolved the marriage and freed the parties from the obligations thereof, but without impairing the rights which accrued under it, except so far as is specified in the 6th, 7th, and 8th sections. By the 6th section the separate estate of the wife, on a divorce granted for the adultery of the husband, is preserved to her; and by the 7th section it is vested in the husband, on a divorce for the adultery of the wife, in the same manner as if the marriage had continued. And by the 8th section it is declared that the wife being the defendant, and convicted of adultery, shall not be entitled to dower in the complainant’s real estate, nor to a distributive share in his personal estate, on his dying intestate. It would seem, therefore, that she being the innocent party, and the divorce being granted for his adultery, she would be entitled to dower. The 5th section, which provides for permanent alimony to the wife, and for the support of the children of the marriage, is not declared to be in lieu of dower, and has never been so treated in this state. (See Burr v. Burr, 10 Paige, 20 ; 7 Hill, 207; Cramer v. Lane, and Burr v. Lane, MS. decided by me as V. Chan. in April, 1846, growing out of the divorce in Burr's case.) The widow of Burr was there adjudged entitled to her permanent alimony for life, as a debt
The second matter to be considered is the seisin of the husband. This must be of such an estate “ so as by possibility it may happen that the wife may have issue by her husband, and that the same issue may by possibility inherit the same tenements of such an estate as the husband hath, as heir to the husband of such tenements. Of such seisin she shall have dower, otherwise not.” (Litt. §§ 53,36. 2 Bl. Com. 131. Park on Dower, 79.) 4 Kent's Com. 38,39.) It must therefore be a seisin during the coverture and prior to the divorce, because of no other could the issue of the marriage by possibility inherit. If, therefore, the divorce annulled the marriage from the beginning and bastardized the issue, dower never could attach; because not only the maxim nullum matrimonium ibi nulla dos, would apply; but also the principle, that when the issue could not by possibility inherit to the husband, dower cannot be granted.
■ In the present case, the seisin of the husband during the coverture was shown, of an estate whereof the issue of the marriage could by possibility inherit to the husband. And in the third place, the death of the husband in 1845 was shown, thus establishing all the requisites to a perfect estate in dower.
The act in relation to dower (1 R. L. 740,) is merely a revision of the former law, and contains no alterations affecting the present question. The revised statutes in relation to divorces (2 R. S. 141 to 148) essentially changed the former law, and greatly enlarged the jurisdiction of the court of chancery with respect to this matter. Article two of this title (2 R. S. 141) vests the chancellor with power in certain specified cases, by a sentence of nullity, to declare void the marriage contract. Such divorce, beyond question, puts an end to the claim of dower, and bastardizes the issue. Article three (2 R. S. 144,) provides for divorces, dissolving the marriage contract for the adultery of one of the parties. Such decree does not bastardize the issue born or begotten prior to filing the bill, when it is exhibited by her; nor when born or begotten before the commission of the offence when exhibited by the husband; and it leaves the right of the wife to her own property when she is the innocent party, and the right of the husband to the property of the wife when she is the guilty party, in the same manner as though the marriage had continued, as was provided by the law of 1813. And in like manner it is provided by the 48th section, (2 R. S. 146,) that a wife being defendant, in a suit brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband’s real estate, or any part thereof, nor to any distributive share in his personal estate. The 49th section allows the complainant, when the marriage is dissolved, to marry again during the lifetime of the defendant, but prohibits the defendant convicted of adultery from marrying again, until the death of the complainant. The 4th article provides for separation of husband and wife from bed and board, or limited divorces, for certain acts of cruelty or abandonment on the part of the hus
The remaining questions grow out of an alleged compromise between the plaintiff and her husband Joseph Wait, about the time of the divorce. It seems that a parol submission was made by the plaintiff and her husband of matters in difference between them, and a parol award was made by them; after and in pursuance of which a writing was executed by the plaintiff and her husband, and delivered to Mr. Given, the counsel of one of the parties, and who was then the law partner of Mr. Cramer, and a bond and mortgage were executed by the said Joseph to the plaintiff in the penal sum of $700, conditioned to pay the plaintiff $30 a year for life, and in case of default of payment the whole to become due immediately. It was shown that Mr. Given had been dead some years. I think the judge was right in holding that the loss of the paper was not shown. Mr. Cramer should have been introduced as a witness to prove a search among the papers of him and Mr. Given. There was no room to raise a presumption of a release of dower, from the acts of the parties; because it was proved that their agreement was reduced to writing. That writing, if produced, would speak for itself.
I think the cause was rightly disposed of at the circuit, and that the motion for a new trial should be denied.
New trial granted.