Wait v. Wait , 4 Barb. 192 ( 1848 )

By the Court, Hand, J.

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 thrown out suggestions; but I am not aware the point has been directly adjudged in our courts.

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 countries where that was the established religion, a divorce a vinculo matrimonii for adultery could not be granted. The same theory prevails in England. The English ecclesiastical courts dissolved the marriage for adultery, it is believed, as late as 1602; but no divorce a vinculo for that cause has been granted there by a judicial sentence since that period. "While in Scotland, in all or nearly all the protestant states on the continent, and in all of these United States (South Carolina perhaps excepted) the proper judicatiories have exercised this power. We have seen that this has been done by authority of legislative enactment in this state, for more than sixty years. England seems to be the only protestant country where this judicial power does not exist. A proposition to change the existing law there, was brought forward in the time of Edward 6, under the auspices of Cranmer, (in 1551, 2,) but its progress was arrested by the death of the king. Parliament is therefore the only resource in such cases there; and that is slow to interfere, and as a general rule does so only when the wife is the offender, and after a sentence of separation in the ecclesiastical court, and a verdict for damages against the adulterer. (Mackintosh's Hist, of Eng. 272, 3. Hallam's Const. Hist, of Eng. 140. Toml. Dict. Divorce. Dalrymple v. Dalrymple, 2 Haggard, 45. Edmonstone v. Edmonstone, Ferguson, 168. Commissary Gordon's opinion in Gordon v. Pye, 3 Eng. Eccl. R. 431. Rye v. Fuliambe, Moore, 683. 2 Kent, 95 et seq. Macqueen's House of L’ds, 465. Rex v. Lolley, Russ. & Ry. 237. 1 John. Ch. R. 493. 2 Burns' Eccl. L. 457, 503.) In England, except by act of parliament, the power to dissolve the marriage is confined to causes pre-existing; some of which are considered civil disabilities and render the marriage void, as former marriage, &c.; and others called canonical (until a late act) rendered it voidable, as consanguinity, &c. And it has been said that the divorce a vinculo by judicial sentence is not so much a dissolution of the contract, as a declaration of its nullity ab initio. (Bac. Abr. Marriage and Divorce, E. 2 Kent, 95. 1 Bl. 440.)

Dower has varied in different ages and in different countries in nature and extent; and although here and in England it has been pretty well-, understood for a long period, and is said to be favored in law, yet, unlike inherent rights, as life and liberty, it is the creature of positive law, and therefore subject to constant mutations. The law of dower varies in the several states, and was very much changed in England by the statute of 3 and 4 Wm. 4, chapter 105, (1833.) (Macqueen’s Husband and Wife, App. 48.) Dower has been called an excrescence or continuance of the husband’s estate. (9 Vin. 372, pi. 82. Co. Lilt. 240, b.) “ Dower,” says an old writer, “ by the law of the land, is a portion which a widow hath of lands of her husband, which by the common law is the third part of all the lands in fee simple or fee tail whereof the husband was sole seised at any time during coverture.” (Lill. Reg. 664.) The statute, “ an act concerning dower,” which was in force when this decree was pronounced, passed in 1787, has no allusion to the estate in which dower may be claimed. But as the law then stood there must be an estate of inheritance, (1 Cruise, 151,) or, as Bacon has it, “ such estate as the children by such wife might by possibility, have inherited,” &c. (Bac. Abr. Dower. Litt. §§ 36, 53. 2 Bl. 132.) Our present statute is: “ A widow shall be endowed with one-third part of all the lands whereof her husband was seised of an estate of inheritance at any time during marriage.” (1 R. S.740, § 1.) It also gives dower, or rights similar to dower, in certain equitable estates, (2 R. S.112, § 71; Id. 374, § 64,) and perhaps in other cases. Wait died after the revised statutes took effect, and if the plaintiff’s right of dower be controlled by them, (see Reynolds v. Reynolds, 24 Wend. 193,) yet it is believed there was thereby no change of the law affecting the question before us. It is the “ widow” only who is entitled now as before. Nor does the section declaring no judgment or decree against the husband shall prejudice the right of the wife to dower, apply to decrees obtained by herself in her own favor. (1 R. S. 742, § 16.)

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 her life of the lands or tenements of her husband after his decease, for the sustenance of herself and the nurture and education of her children.” (Co. Lit. 30, b.) And this is confirmed by all the elementary writers. (2 Bl. 130. 1 Cruise, 126. 4 Kent, 35. Bac. Abr. Dower, A. Hargrave's note (178) to Co. Lit. 30, b. 2 P. Wms. 702.) Indeed the early Saxons gave her no lands, but made direct provision for the support of the widow out of the goods of the husband. (2 Bl. 129. Crabb’s Hist. Eng. Law, 83.) And afterwards she took land, but only during widowhood. (Id. and 1 Cruise, 130.)

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 dissolution by parliament of a marriage before perfectly valid, and for some supervenient cause, is nothing more than a divorce a vinculo matrimonii, and is so called. And the expression, “ it is necessary that the marriage do continue, for if that be dissolved dower ceaseth,” explains the author’s meaning. It is the dissolution of the marriage contract that affects the right to dower. Parliament may dissolve to take effect from the passage of the act, (extunc) while the courts there have only power to do so for pre-existing causes; and therefore a divorce by them retro-acts; but both are a dissolution, (when not before void,) of a marriage valid for all purposes until dissolved ; and the only difference is in the time of the dissolution taking effect. Now Lord Coke does not say: “ Where there never has been any marriage there is no dower.” The language used by him, and which he took from Bracton, who wrote in the 13th century, (Bract, lib. 2, fol. 92,) may be considered as referring to the state or condition of matrimony or wedlock, not to the act of marriage.

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. 548.) This would not be necessary, at least, after his decease, if she were entitled to dower and a distributive share of his estate ; for adultery at common law did not bar dower, nor does the statute of Westm. 2, (13 Edw. 1,) except where the wife elopes and tarries, &c. It has been said that dower in England was forfeited by a decree of separation for adultery. (1 Rolle Abr. 680. 1 Cruise, 140.) One author thinks this is only where she comes within the statute of Westm. 2. (Bac. Abr. appendix, Dower.) It is possible that a doubt has arisen from the fact that formerly the spiritual courts divorced a vinculo for adultery. Particularly as Coke and Rolle, who differ on this point, published within about 40 years of each other, (Coke in 1628, 1629, and Rolle soon after the restoration,) and as we have seen, divorces a vinculo for adultery were granted as late as 1602. (And see Hargrave's note 9, to Co. Lit. 32, a.)

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-tied, used the term “ widow.” (Gerard v. Gerard, Lev. Ent. 76. Holmden v. Gregory, Lill. Ent. 189. Rastell's Ent. 227.) And this was the word used in our statute in relation to dower, in force when the plaintiff obtained her decree; the first section of which was pretty substantially the same as the 7th chapter of magna charla, except that the latter did not define the share the widow was to have. (1 R. L. 56. 7 John. 247.) Our revised statutes, which were in force when Wait died, also use it in giving dower, and require its use in the proceedings to recover it. “ A widow shall be endowed,” &c. (1 R. S. 740, § 1.) So in relation to ejectment: “By any widow entitled to dower, or by a woman so entitled and her husband,” &c. (2 Id. 303, § 1.) The declaration states she was possessed of “ one undivided third part of the premises as her reasonable dower as widow of her husband, naming him.” (Id. 304, § 10.) Whenever a claimant of dower, not again married, is mentioned in our present statutes, this is the appellation given to her. The true meaning of the term “ widow” is therefore important, and that meaning is familiar, well fixed and certain in this state and in England. It no doubt may literally mean a woman deprived of, or without a man. But the legal as well as the popular signification of the word, is that given by Webster : “ A woman who has lost her husband by death. Luke 11.” ( Webster’s Dict. last ed. “ Widow,”) The etymology of the word implies that she has been deprived of a husband. The meaning of its correlative “ widower” is equally familiar: “ A man who has lost his wife by death ” (Id.) The plaintiff is not the widow of Wait. A dissolution of the marriage, and subsequent death cannot make a widow. She lost no husband, by his death. She was not his wife when that event happened. A wife, Webster says, is “ the lawful consort of a man; a woman who is united to a man in the- lawful bonds of wedlock; the correlative of a husband.” The third requisite, then, to consummate dower, has not taken place and never can take place in this case. Marriage, seisin and issue give to the husband a certain interest or estate, as tenant by the curtesy initiate, which he can convey before the death of the wife. (Co. Litt. 30, a.) But the wife has merely an inchoate right, during the.husband’s life, by marriage and seisin, which becomes consummate by, and only by his death,' and then she has but a right of action not assignable. The death of one not her husband is not sufficient. If Wait had died the plaintiff’s husband, if she had once been his widow, her right to claim dower would have been perfect, though she had married again.

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. He who will break this sacred vow made in the presence of God and before the world, deserves only naked justice. But when it becomes a question of property between the former wife and his innocent heirs, that should be granted.

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, it is a logical consequence that she should have the same liberty to marry again as her husband.” (Id. 214.) And Shelford concurs in this opinion. (Shelf, on Mar. and Div. 476.) Paley says a divorce a vinculo “ releases ” the parties. (Paley’s Mor. Phil. b. 3, p. 3, ch. 7.) Bishop Cozens, whose argument in 1669 in Lord Roos’ case, carried through parliament the first divorce granted by that body, says: “By adultery two are made not to remain one flesh, hence it is that a contagious disease is not a dissolving of a marriage. By adultery the very essence of the contract is violated, but the contract ceasing, the bond depending on the contract necessarily ceases.” Mac-queen’s H. of Lords, 559.) To “ annul” is to “ make void,” and to “ dissolve” is to “ annul.” ( Web. Die.) But rescission and dissolution of a contract it is believed may be essentially different. Rescission is said to be the act of both parties, (by Mr. J. Coleridge in Franklin v. Miller, 4 A. & E. 599,) for one gives occasion (and is deemed to have abandoned) of which the other avails himself. But to rescind, the parties must be placed in statu quo. (2 Hill, 292. 5 Hill, 389. 1 Denio, 69. Chit, on Cont. 276. 5 East, 449. 2 Chitty’s Rep. 416.) In this sense it bears a strong analogy to a divorce a vinculo, granted by the ecclesiastical courts in England. But a dissolution of the contract is usually the act of the parties putting an end to it from that time, and is not retrospective, and leaves nothing executory. It is in the nature of a mutual abandonment of the contract. Such is the sense of the term as used by the judges in some of the cases. (See 7 East, 471; 12 Id. 482, 550, and also a large number of settlement cases collected by Mr. Petersdorf in his Abridgment, vol. 14, p. 465.) But it seems dissolution is sometimes used synonymously with rescission; particularly where the contract is said to be dissolved in toto. (2 Kent, 476. Stoddard v. Smith, 5 Binney, 362. And see Green v. Green, 9 Cowen, 46.) In either case the result is obvious. Marriage is a contract; “ in its origin a contract of natural law,” (Sir William Scott in Dalrymple v. Dalrymple, supra,) but is nevertheless a contract. This is dissolved, and the parties respectively freed from the obligations thereof, and neither can claim any thing, by virtue of the former contract, except what he or she has already acquired a perfect right to, or what is given by the act dissolving it. The terms used in the act are most clear, conclusive and final. The right to dower was inchoate, not consummate, when this dissolution took place. She was not entitled to it at the time of the divorce, and if she could not claim it then she never can ; the rights of the parties are then fixed and unchangeable.

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 not necessarily passed upon, but those judges appear, from the reports of those cases, to have well considered it. The vice chancellor of the 4th circuit, now Hr. Justice Willard, in Burr v. Burr, (10 Paige, 25,) threw out a mere suggestion to the contrary, but immediately added that it was unnecessary to discuss or decide that question, as that was a case of divorce a mensa et thoro. After such a divorce, of course, she continues a wife, the marriage not being dissolved. His decision was sustained by the chancellor and the court for the correction of errors, but the subject of dower after a divorce a vinculo was not again adverted to in the progress of the cause. Were it not for the statutory prohibition, the offender, here as in England, might marry again, in which case there might be a novel scramble for dower on the death of an unlucky wight, who was better at making vows than in observing them.

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.