Grober v. Clements

Riddick, J., (after stating the facts). This is an action by Wilhelmina Clements to recover dower in lands belonging to the estate of her former husband, John C. Grober, and also to enforce the provisions of a trust deed executed by him for her benefit. So far as the trust is concerned, it is now conceded by counsel for appellees that Grober had only a life estate in the land which he conveyed in trust, and that the decree of the court below so holding is correct. This disposes of her appeal, and we need only consider the points raised in the brief of counsel for defendants against the claim for dower by plaintiff. First, as to the decree for divorce which the court declared to be void. Now, in considering this question, it must be remembered that no actual service was had on the defendant in that- case; the decree being based 'on service by publication only. She had, therefore, no opportunity to appear and object to defects in the proceedings. In such cases the law is much more strict than in cases where the defendant has actual service of notice, though the notice be defective on account of mistake or otherwise. The affidavit for the warning order did not follow the statute, and, to say the least, was very irregular; but we need not notice that point, for the reason that we are of the opinion that the decree for divorce was void on account of a mistake in the name of the defendant as given in the decree and the proceedings upon which it was founded. Her name at time was Wilhelmina Grober, though by members of her family and intimate friends she was generally called Mena, as an abbreviation of the name Wilhemina. But in the action for divorce of which we are speaking she was sued as Minnie Grober, and the decree was rendered against her by that name. Now, the name Minnie is not the same as Wilhelmina or Mena, nor to our minds does it have the same sound. It differs substantially both in the spelling and in sound from the name Mena. We are therefore of the opinion that the decree for divorce, being based upon constructive service by publication only, of which the defendant in that action had no actual notice, and as the name of the defendant in the complaint, warning order and decree is given as Minnie Grober — a name by which she was never known — is for that reason void, and does not aifect rights claimed in this action. As to the tax title set up by the defendants, the evidence shows that at the time of the tax sale John C. Grober was nearly ninety years of age, and in a physical condition that did not permit him to leave home without great difficulty and inconvenience. Under these circumstances, it is very natural to suppose that his business affairs, such as paying taxes and the like, were attended to mostly by agents. Ehinehold, his son, who sets up the tax title, admitted that he had previously redeemed his father’s land when it had been sold for taxes. He testified that on the day of the purchase he intended to pay the taxes, but that, as the land was being offered for sale when he arrived, he bid it in, and that he did this to protect the interest of his father and of all others interested in the land. We think this testimony of Ehinehold, his subsequent conduct, and the other evidence support the finding of the court that in making this purchase Ehinehold was acting as the agent of his father, and that the purchase amounted in equity only to a redemption of the land, and gave him'no title that he could set up against the claim of dower made by the plaintiff. It is the duty of the heir to assign dower, and the statute does not usually run against the claim of the widow for dower so long as the heir is in possession by virtue of his inheritance, and we think, under the facts of this ease, that the court properly decided that the claim of plaintiff for dower was not barred. Livingston v. Cochran, 33 Ark. 294; Webb v. Smith, 40 Ark. 17. We come next to the question whether plaintiff forfeited her right to 'dower by her marriage to Clements before the death of her former husband, Grober, in whose estate she now claims dower. Plaintiff is a German, and does not speak English well, and she does not make it quite plain whether she married Clements under the impression that her former husband was dead, or under the impression that he was divorced from her, but the difference is not material here. By an old English statute it was enacted that, if a wife willingly leave her husband, and go away and continue with an adulterer, she shall be barred of her action to demand dower, unless the husband willingly and without coercion of the church reconcile her and suffer her to dwell with him. Westminster 2 (13th Ed. I), c. 34. And this is still the law in some of the states. But in this state, as in many others, the legislature has by statute so completely revised the law of dower that we must look to the statute alone to determine the circumstances under which and the means by which dower is barred. Sand. & H. Dig. § 2520 et seq.; Lakin v. Lakin, 2 Allen, 45; Smith v. Woodworth, 4 Dillon, 584; Fed. Cas. No. 13,130. Our statute provides that “a widow shall be endowed of a third part of all lands whereof her husband died seized of an estate ■ of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.” Sand. & H. Dig. § 2520. It further provides that “in case of divorce dissolving the marriage contract for the misconduct of the wife she shall not be endowed.” Sec. 2527. It will be noticed that under this statute, in order to bar dower on account of the misconduct of the wife, there must not only be misconduct on her part, but a divorce in consequence of such misconduct. In this respect our law seems to be an improvement on the English statute. Under that statute, if the husband sold land, or if his land was sold under execution during marriage, and if after his death the wife set up a claim to dower, the purchaser was permitted to defeat her claim if he could show that she had left her husband and had lived with an adulterer. In commenting on this phase of the statute, the Supreme Court of Massachusetts, in Lakin v. Lakin, supra, said: “Lands in which women have a right of dower so frequently pass into the hands of strangers to the family, either by sale or levy, that it would operate harshly to allow the proprietors who had bought the land subject to the incumbrance to set up such a defense, and to bring to public investigation scandals which those most interested had preferred to bury or to pass unnoticed.” For this and other reasons stated in the opinion in that case we concur in the statement there made that “it is well that our statute has made such inquiries immaterial and irrelevant.” We are therefore of the opinion that under our statute the marriage of the plaintiff to Clements before the death of Grober does not affect her claim to dower in this case. Even if she contracted that marriage under the belief that Grober had procured a valid divorce from her, there is nothing in that act to .estop her from asserting her rights on finding that no divorce was in fact procured, and that her marriage to Clements was for that reason invalid. We have read with much interest the able and entertaining briefs filed by counsel for appellant, but we still think that the judgment appealed from is right, and it is therefore affirmed.