Bryan Wife v. Batcheller

Bosworth, J. The question arises in this case upon demurrer to the defendant’s plea. The point raised is, whether elopement of a wife and living in adultery, without reconcilement with the husband, bars a claim for dower under the law of this state ? The statute of this state provides, {Rev. Sts. ch. 202,) that the widow of any person dying intestate, or otherwise, shall be endowed of one full and equal third part of all the lands, tenements, and hereditaments, whereof her husband, or any other to his use, was seised of an estate of inheritance, at any time during the intermarriage, to which she shall not have relinquished her right of dower by deed, except in cases provided for in the 21st section of the chapter. The section containing the excepted cases provides, that real or personal estate conveyed by deed, or devised or bequeathed by will, for the jointure of the wife, in lieu of her dower, to take effect in her own possession immediately upon the death of the husband, and to continue during her life, or in fee, determinable by such acts only as would forfeit her dower at common law, shall bar dower. The statute, therefore, provides of what, and to what extent, the widow shall be endowed, and also by what acts, and by what means, she shall be barred of her dower. It is claimed, in this case, that there is a forfeiture. There is no forfeiture, of such a character as is here set up, provided by the Revised Statutes. Such a forfeiture did not exist at common law, and the only ground on which it is now put is, that by the English statute of Westminster 2d it is enacted, that elopement and living in adultery, without reconcilement to the husband, is made a forfeiture to bar the widow of her dower. We do not think that such a bar to dower ever existed in this state, or that such a ground of forfeiture was ever recognized by our law. Statutes regulating dower were first passed in this state, or first appear, in the digest of the laws in 1798. Prior to that time, the statute of Merton had been introduced into the colony; and the statute of Westminster 2d, de donis *546 conditionalibus. The former of these was an English statute relating to dower; and the latter ,a statute relating to estates upon condition. The counsel has fallen into the error of supposing that the whole of the statutes of Westminster 2d were adopted; whereas the enumeration, referred to by him, shows, that only the statute de donis, which is the first chapter of those statutes, was introduced into our laws. It is chapter 34 of the statute of Westminster 2d, 13 Edw., that makes provision for this forfeiture. It may, at first, seem singular that our law should be so regardless of what seems so just and reasonable a ground of forfeiture. The common law, however, did not regard elopement and adultery as a forfeiture, even where the parties were divorced, unless the divorce was a vinculo. A reason for this state of our law may, however, be found in the nature of our decree of divorce, which was, we believe, always when for this cause, a vinculo. The statute of divorce was passed in 1748, while that of dower was passed in 1790 ; so that the cause of forfeiture, under the statute of Westminster, was cause for divorce a vinculo, under our statute, since 1748. Under the statute of Westminster, a reconcilement and living with the husband, after the fact, would reinstate the wife in her right of dower ; and if, after the fact was known to the husband, under our law, he took no steps to procure a divorce, as he might if he saw fit, by which his wife would be effectually barred of all right to claim dower in his estate, the wife seems always to have been left, by our law, in the same condition as She would be under the 34th chapter of Westminster 2d, by a reconcilement and living with her husband. This plea must, therefore, be overruled. as no bar to the claim of the demandants.