In Van Cleaf v. Burns, (118 N.Y. 549, 133 id. 540), the husband obtained an absolute divorce from his wife, in Illinois, on the ground of her desertion; but we held that her right of dower in real estate here had not been affected thereby.Summary of this case from Van Blaricum v. Larson
Submitted January 22, 1890
Decided February 25, 1890
John H. Kemble for appellant.
Josiah T. Marean for respondent.
Our Revised Statutes provide 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," (1 R.S. 740, § 1), but that "in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed." (Id. § 8.) It is further provided by the Code of Civil Procedure, that where final judgment is rendered dissolving the marriage in an action brought by the wife, her inchoate right of dower in any real property of which her husband then was or was theretofore seized shall not be affected by the judgment, but that when the action is brought by the husband, the wife shall not be entitled to dower in any of his real property, or to a distributive share in his personal property. (§§ 1759 and 1760.) These provisions of the Code replaced a section of the Revised Statutes which provided that "a wife being a defendant in a suit for a divorce 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 of his personal estate." (2 R.S. 146, § 48, repealed L. 1880, ch. 245, § 1, sub. 4.)
An absolute divorce could be granted only on account of adultery, under either the Revised Statutes or the Code. (3 R.S. [6th ed.] 155, §§ 38-42; Code Civ. Pro. §§ 1756, 1761.) According to either, an action could be brought to annul, to dissolve or to partially suspend the operation of the marriage contract. A marriage may be annulled for causes existing before or at the time it was entered into, and the decree in such cases destroys the conjugal relation ab initio and operates as a sentence of nullity. (Code Civ. Pro. §§ 1742, 1754.) A marriage contract may be dissolved and an absolute divorce, or a divorce proper, granted for the single cause already mentioned. Such a judgment operates from the date of the decree by relieving the parties from the obligations of the marriage, although the party adjudged to be guilty is forbidden to remarry until the death of the other. It has no retroactive effect except as expressly provided by statute. ( Wait v. Wait, 4 N.Y. 95.) An action for a separation, which is sometimes called a limited divorce, neither annuls nor dissolves the marriage contract, but simply separates the parties from bed and board, either permanently or for a limited time. (Code Civ. Pro. §§ 1762-1767.) Neither the nature nor effect of the judgment of divorce granted by the court in Illinois, in favor of David Van Cleaf against the plaintiff, appears in the record before us, except that the bond of marriage between them is stated to have been dissolved upon the ground that she had wilfully deserted, and absented herself from her husband without reasonable cause for the space of more than two years prior to the commencement of the action. It does not even appear that the decree would have the effect upon her right to dower in the state where it was rendered that is claimed for it here. Apparently it simply dissolved the marriage relation, and whether it had any effect by retroaction upon property rights existing at its date, is not disclosed. A judgment of a sister state can have no greater effect here than belongs to it in the state where it was rendered. ( Suydam v. Barber, 18 N.Y. 468.) There is no presumption that the statutes of the state of Illinois agree with our own in relation to this subject. ( Cutler v. Wright, 22 N.Y. 472; McCulloch v. Norwood, 58 id. 562.) If they do, the fact should have been proved, as our courts will not take judicial notice of the statutes of another state. ( Hosford v. Nichols, 1 Paige, 220; Chanoine v. Fowler, 3 Wend. 173; Sheldon v. Hopkins, 7 id. 435; Wharton on Evidence, §§ 288, 300.) Adequate force can be given to the Illinois judgment by recognizing its effect upon the status of the parties thereto, without giving it the effect contended for by the respondent. ( Barrett v. Failing, 111 U.S. 523; Mansfield v. McIntyre, 10 Ohio, 27.)
The judgment appealed from, therefore, can be affirmed only upon the ground that a decree dissolving the marriage tie, rendered in another state for a cause not regarded as adequate by our law, has the same effect upon dower rights in this state as if it had been rendered by our own courts adjudging the party proceeded against guilty of adultery. This would involve as a result, that the expression "misconduct of the wife" as used in the Revised Statutes, means any misconduct, however trifling, that by the law of any state is a ground for divorce. Thus it might happen that a wife, who resided in this state and lived in strict obedience to its laws, might be deprived of her right to dower in lands in this state by a foreign judgment of divorce based upon an act that was not a violation of any law of the state of her residence. It is important, therefore, to determine whether the provision that a wife shall not be endowed, in case of divorce dissolving the marriage contract for her misconduct, refers only to that act which is misconduct authorizing a divorce in this state, or to any act which may be termed misconduct and converted into a cause of divorce by the Legislature of any state.
In Shiffer v. Pruden ( 54 N.Y. 47, 49), this court, referring to said provision of the Revised Statutes, said that "the misconduct there spoken of must be her adultery, for there is no other cause for a divorce dissolving the marriage contract." It had before said, in Pitts v. Pitts ( 52 N.Y. 593), that "a wife can only be barred of dower by a conviction of adultery in an action for divorce and by the judgment of the court in such action." While these remarks were not essential to the decision of the cases then under consideration, they suggest the real meaning and proper application of the word misconduct as used in the Revised Statutes with reference to its effect upon dower.
When the Legislature said, in the chapter relating to dower, that a wife should not be endowed when divorced for her own misconduct, and, in the chapter relating to divorce, that she should not be entitled to dower when convicted of adultery, the sole ground for a divorce, we think that by misconduct adultery only was meant, or that kind of misconduct which our laws recognize as sufficient to authorize a divorce. The sections relating to dower and to the effect of divorce upon dower are in pari materia and should be construed together, and when thus construed they lead to the result already indicated. ( Beebe v. Estabrook, 79 N.Y. 246, 252.) The repeal of section 48, which provided that the wife, if convicted of adultery, should not be entitled to dower, has not changed the result, as sections 1756 and 1760 of the Code have been substituted, leaving the law unchanged. They enact, in effect, that when judgment is rendered, at the suit of the husband, dissolving the marriage for the adultery of the wife, she shall not be entitled to dower in any of his real property. There is no change in meaning and the slight change in language, as the commissioners of revision reported, was to consolidate and harmonize the new statute with the existing system of procedure. (Throop's Annotated Code, § 1760, note.)
The repealed section was pronounced in In re Ensign ( 103 N.Y. 284), "An unnecessary and superfluous provision as respects dower." It was also held in that case that while the relation of husband and wife, both actual and legal, is utterly destroyed by a judgment of divorce so that no future rights can thereafter arise from it, still, existing rights, already vested, are not thereby forfeited, and are taken away only by special enactment as a punishment for wrong. It follows that depriving a woman of her right to dower is a punishment for a wrongful act perpetrated by her. Is it probable that the Legislature intended to punish as a wrong that which it had not declared to be a wrong? If a divorce granted in another state for wilful desertion, relates back so as to affect, by way of punishment, property rights previously acquired, must not a divorce for incompatibility of temper or any other frivolous reason be attended with the same result? Does the penalty inflicted upon the guilty party to a divorce granted in this state for a single and special reason, attach to any judgment for divorce, granted in any state for any cause whatever, including, as is said to be the law in one state, the mere discretion of the court?
Our conclusion is that as nothing except adultery is, in this state, regarded as misconduct with reference to the subject of absolute divorce, no other misconduct is here permitted to deprive a wife of existing dower rights, even if it is the basis of a judgment of divorce lawfully rendered in another state, unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered, and as to that we express no opinion.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur, except FOLLETT, Ch. J., dissenting.