Van Blaricum v. Larson

The action is for dower, and the question here is whether by obtaining a divorce in ■ the State of Indiana, upon the grounds of desertion, failure to support and drunkenness on the part of her husband, as the laws of that State permit, plaintiff lost her right to claim dower in his real property situate in this State.

" I think .she did not. ' She was married in the city of Indianapolis, Ind., on or about the 26th day of November, 1874. On or about the 4th day of September, 1.886, the judgment dissolving that marriage was rendered by the Circuit Court of Marion county, lad. Her husband died on or about June 7, 1907, in the city of Rochester in this State. Before1 the marriage was dissolved the husband entered into the actual possession and continued to hold and occupy the lands in question, as owner in fee simple thereof, to the time of his death, as appears by the allegations oí the complaint.

The plaintiff did not remarry after the divorce, so far as the record discloses. The complaint is silent upon that subject, and the question here arises upon a demurrer to the complaint, which was overruled. The appeal is taken from the interlocutory judgment entered upon that decision.

It is unnecessary to discuss the origin and development of dower. It was recognized in England at least as early as the thirteenth century," in the provisions of Magna Charta, and here by the colonial law as well as the statutes of the State. Since the enactment of the Revised Statutes the declared law has been that “ a widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage.” (Colonial Laws of 1683, chap. 1, passed October 30, 1683; Colonial Laws [Comp. Stat. Rev. Comm.], vol. 1, pp. 111, 114, 115; Laws of 1787, chap. 4; R. S. pt. 2, chap. 1, tit, 3 [1 R. S. 740], § 1; Real Prop. Law [Gen. Laws, chap. 46 ; Laws of 1896, chap. 547], § 170 ; Real Prop. Law [Consol. Laws, chap. 50 ; Laws of 1909, chap. 52], § 190.) Nor is it necessary to refer to laws *280and decision's of other States relating to dower as it exists';at the present time.. The question must be determined by the laws of this State, as the real property is situated here.

By the decisions of the courts of this State, dower is recognized as a vested right arising out of the marriage. It is inchoate until the death of the husband, but the inchoate right vests at the time of the marriage in lands of which the husband is then' seized, and in such as are thereafter acquired by him during coverture at the time he becomes seized thereof, of, which right the wife can only be divested by her own voluntary act, or by forfeiture as the law provides. (Wait v. Wait, 4 N. Y. 95; Kursheedt v. Union Dime Savings Institution, 118 id. 358; Matter of Ensign, 37 Hun, 152; affd., 103 N. Y. 284;. Van Cleaf v. Burns, 133 id. 540.) Judge Haight, in the course of his opinion' in the Ensign case, when the case was before the General Term of the Supreme Court, of which he was then a member, in commenting upon the decisions there referred to, says: “ These decisions are placed upon the ground. that the inchoate right of dower becomes a vested interest as •soon as the husband is seized; and that, although the divorce-may dissolve and terminate the marriage, it does not take away a vested interest in real estate previously acquired.”

The point made by the appellants is, that the plaintiff cannot be a widow of the man who was not her husband at the time of his death, and, therefore, she is not entitled to dower. But that conclusion does not follow. As is said in Wait v. Wait (supra): “Whether or not a woman, divorced from her hus band, upon his subsequent death, is to be called his widow, may furnish a curious question in philology, but can not, I think, be decisive of the plaintiff’s rights. It is true, the Legislature, in declaring what estates are liable to dower, speak of the party entitled to dower as a widow. Possibly the term may not, in every instance, be the most appropriate, yet, as descriptive of the person intended, it is clearly sufficiently so. All that the Legislature meant is, that when a woman is entitled to dower, she shall be endowed of a third part of all the lands whereof, her husband was seized at any time-during the marriage.”

Furthermore, there is now and was at the time of the divorce, *281an express statutory declaration that if an action for divorce is brought by the wife and the marriage is dissolved, her inchoate right of dower in any real property of which the husband then is or was theretofore seized, is not affected by the judgment of divorce. (Laws of 1880, chap. 178; Code Civ. Proc. § 1759, subd. 4.) While the statute provides that in case of a divorce dissolving the marriage contract, for the misconduct of the wife, she shall not be endowed (R. S. pt. 2, chap. 1, tit. 3 [1 R. S. 741], § 8; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 176; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 196), there is no provision in our statutes that if she obtains a divorce for the misconduct of her husband her dower shall be barred; but, as we have seen, there is an express declaration to the contrary. There are other ways in which the right of dower may be barred, forfeited or released, but they have no relation to the question here".

It is, however, further contended that section 1759 of the Code of Civil Procedure does not apply, because the marriage in our State may only be dissolved upon the ground of. adultery, and a divorce obtained upon any other ground is, therefore, not within that provision. That is to say, if the judgment is obtained in this State upon the ground of adultery, the wife’s right of dower is not affected thereby, but if obtained in another State upon other grounds, although sufficient by the , laws of that State, for instance, such as désertion, she loses her right of dower whether she remarries or not. But the statutes referred to make no such distinction, and I think none exists in the law as declared by the courts of this State.

I am of the opinion that the demurrer was properly overruled, and that the interlocutory judgment entered thereon should be. affirmed, with costs, with leave to plead over upon the usual terms. •

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the defendants to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.