
    Matter of the Estate of Elisha W. Ensign, Dec’d.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    Statute of distribution—A divorced woman is not the widow of her
    FORMER HUSBAND UPON HIS DEATH.
    A woman who has procured a divorce from her husband on the ground ■of adultery is not, upon his death, a widow within the meaning of the statue of distribution, and is not entitled to a distributive share of his personal estate, or to letters of administration, or to notice of proceedings impróbate of his will.
    Appeal from judgment of the supreme court, general term, fifth department, affirming a decree of the surrogate’s court of Erie county.
    
      Louis Marshall, for app’lt; 8. 8. Rogers, for resp’t.
    The appellant, Jennie Ensign Martin, presented a petition to the surrogate’s court of Erie County.praying for a citation to issue to Cornelia Hamilton, as sister of Elisha W. Ensign, deceased, and to the other parties interested, requiring them to appear in court and show cause why the probate of the pretended last will and testament of Elisha W. Ensign, deceased, should not be wholly revoked and annulled; and to further show cause why Cornelia Hamilton should not be removed from her position as administratrix. Upon the presentation of the petition, citations were issued to the parties named therein, and on the return day an answer was interposed by Cornelia Hamilton, and the issues formed thereby were tried before the surrogate, who found as facts' that, on the 24th day of May, 1867, at Cincinnati, Ohio, Elisha W. Ensign married the petitioner in this matter, Jennie Ensign Martin, and they lived together as man and wife till the year 1875. There was no issue of the marriage except one child, born on the 10th day of November, 1869, which survived but a few hours. The petitioner commenced an action for divorce in the court of common pleas of the city and county of New York on the 28th day of October, 1875, and thereafter on the 13th day of December, 1875, the court rendered judgment ordering and adjudging that the marriage between the petitioner and Elisha W. Ensign be dissolved, and that each party be freed from the obligations thereof, and that it was lawful for the petitioner to marry again, but not for Elisha W. Ensign. It was further adjudged that Elisha W. Ensign pay to the petitioner as alimony the sum of $25,000, and also the further sum of $13,500, being the amount of a mortgage on premises owned by her. After the death of Elisha W..Ensign, Charles Ensign, as executor of his last will and testament, paid the petitioner $10,000, being the balance due for the money directed to be paid by the judgment, and the petitioner thereupon executed a release of all her dower right in and to the lands and real estate of Elisha W. Ensign. In the month of December, 1877, the petitioner married one Edward Martin, whose wife she how is. Elisha W. Ensign died the 1st day of October, 1877, being then a resident of the city of Buffalo, and left him surviving Charles Ensign, his brother, and Cornelia Hamilton, his sister; that they were of full age, and were his only next of kin and heirs at law. His will was duly proved and admitted to probate, and Cornelia Hamilton appointed administratrix with the will annexed. No notice of the probate of the will being served upon this petitioner. The surrogate found as conclusions of law that the petitioner is not entitled to any distributive share of the personal estate of Elisha W. Ensign, and that she was not, therefore, a necessary party, or entitled to notice of the proceedings for the probate of his will.
    
      
       Affirming 37 Hun, 152.
    
   Finch, J.

A statutory construction, unchallenged for moro than half a century, is assailed on this appeal. That a divorced wife, however innocent, has no right to a distributive share in the personal estate of her divorced husband, upon his death intestate, has been conceded until a very recent period, but is now asserted to have been all the time mistake which should be at last corrected. A single provision of the statute relating to divorce gives color to the construction sought. Where the decree is founded upon the misconduct of a wife, it is expressly provided that “she shall not be entitled to dower in her husband’s real estate, nor any part thereof, nor to any distributive share in his personal estate.”

On the theory that this was a needed provision to bar the guilty wife of dower, it is argued that it was thought also a needed provision to bar distribution, and the inference is drawn that, without such prohibition, or where, by reason of the divorced wife’s innocence, it could not apply, the legislature supposed she would be so entitled, and intended to leave her, when free from fault, in the possession of both rights to their full extent.

But it is quite evident that we have an unnecessary and superfluous provision as it respects dower. In a previous part of the Revised Statutes (volume 1, § 8) it had already been declared that, in case of a divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. This provision was needed to cut off the incohate dower of the wife in property of the husband acquired prior to the decree, and was useless beyond that, and so operative for that purpose only. The added provision of section 48 was therefore needless. It is conceded to have been a mere “repetition,” having no excuse except that overcaution which is sometimes as dangerous as neglect. In the same statute there is a second instance of the same superfluous legislation. It is provided that the dissolution of the marriage contract shall not affect the legitimacy of the children. & Rev. Stat. (5th ed.), 236, §§ 56; 57. In Wait v. Wait (4 N. Y., 95) it was said of this provision: “No one, however, wifi pretend that such a provision, though for greater caution it may have been wise to adopt it, was in fact necessary,” and the court admitted this needless care bore, “to some extent,” upon the prohibition of dower in section 48. There was thus concededly two instances of needless caution in the statutes under consideration, and others ought not to surprise us. Ascertaining that the clause relating to dower was useless, we may expect to find that equally true of the following one, relating to distribution. The revisers omitted it in their draft, but the legislature added it. At that time no right to distribution had ever been conceded to the divorced wife, but the law had been administered to the contrary; and, with the full knowledge of that fact in the mind of the legislature, it is difficult to conceive an intent to change the rule in so important a matter left to be evidenced merely by an indirect inference, and not affirmatively and expressly declared.

The rule as it then stood rested upon very clear and definite grounds. The statute of divorce began with a provision permitting a marriage to be annulled for specific reasons. In such cases no marital rights should exist on either side, since the decree adjudged that a lawful marriage had never existed. But then came provisions for a dissolution of the marriage contract. In such case the contract is ended and terminated by the decree of the court. The relation of husband and wife, both actual and legal, is utterly destroyed, and no future rights can thereafter spring out of or arise from it. Existing rights already vested are not thereby forfeited, and are taken away only by special enactment as a punishment for wrong. But future rights dependent upon the marital relation and born of it, there can be none. Thus, the wife’s dower at the date of the decree is vested as an inchoate right, at least, as against the husband whether she be innocent or guilty, by the concurrence of marriage and seizin. It has fastened upon the land and follows it as an incumbrance and would become consummate upon the death of the husband in either event, but for the express.mandate of th.e statute which forfeits it where the wife is the guilty party. But the wife, although blameless, acquires no dower right in lands conveyed to the husband after the divorce because he was not seized during the coverture. Kade v. Lauber, 16 Abb. Pr. [N. S.], 288. The coverture is ended and cannot serve to found a new right after its destruction. The existing inchoate right remains because it has already accrued, has not been forfeited by guilt, and does not depend upon the continuance of the marriage relation, but independent of that continuance consummate by the death of him who was the husband when it sprang into being. For the same reason that future rights, dependent for their origin upon the marriage relation, cannot arise after its dissolution, and which prevents the innocent wife from having dower in her husband’s after-acquired lands, it follows that she can have no distributive share in his personalty. At the date of the decree she has no existing right in his personal estate. That is his. No fraction of it and no hen upon it are hers. He may sell it without her consent, give it away if he pleases, and bequeath it at his own free choice. If it remains his at his death then the wife, if the marriage relation exists and has not become sundered, becomes “the widow” named in the statute of distribution, and at that moment for the first time arises her right in the personal estate dependent upon the existence of the marriage at the husband’s death. Administration is given, first, “to the widow.” The law contemplates the possible existence of but one, and makes no provision for a struggle of priority between two or more. To “ the widow ” is given one-third of the personal estate and all the other provisions allowing her occupation of her husband’s house, and setting apart for her specific articles of household use indicate the understanding of the legislature that she only was “the widow” who held to the deceased at the date of his decease, the relation of wife. Otherwise the statutes meant to be both just and generous, become fomentors of discord and plan for bitterness and war. The divorced wife is not “the widow.” She may be the lawful wife of another man and the deceased may have lawfully remarried in another state, or by permission of the court in this, and it would follow, if the appellant is right, that a woman may be a widow although her lawful husband is living, and that an intestate may leave two widows with equal rights to administration and distribution. Suppose that with unusual activity he should leave four, how would each get one-third of the personalty ? And were the children of any account in the scheme of distribution? In one event “the widow” is entitled to the whole surplus. The appellant’s counsel solves the trouble by applying to the later wives, with a sort of grim humor, the maxim caveat emptor; but the suggestion is not quite adequate to unsettle the law, and unite at desired points a several bond. When the court dissolves the marriage contract at the suit of the innocent wife, it is authorized to decree the payment to her of a suitable allowance.

And why is that ? If any marital right continues after the divorce, the wife remains entitled to her support, and may enforce it in the ordinary way. On the contrary, the statute recognizes that, when the marriage tie is broken, and the relation ended, no future rights will remain-to the wife, and_ no future obligations bind the husband, which have their root in the marriage relation. The court is authorized to give, by its decree, in the form of an allowance, a just and adequate substitute for the right of the innocent wife which the divorce cuts off, and forbids in the future. The tribunal granting the decree investigates the husband’s financial condition, takes proof of the value of his property, and then makes, a suitable allowance for her' life, and so puts the decree and its power in the place and room of what is lost in the future.

If, because the wife is innocent, the marriage relation, in any degree, subsists as against the husband, we must confront the anomaly of a contract adjudged to have been dissolved, and yet remaining not dissolved as to one of' the parties, and read in the decree that both sides are freed from the obligations of the marriage contract when the court pronouncing it knows it to be false, since some obligations of the husband will remain. The distinction drawn, on behalf of the appellant, between rights and obligations, does not reheve the difficulty; for it is impossible to conceive of a right of the wife which, does not impose upon the husband a corresponding obligation. The true theory of the statute is that, from the date of the decree, no existing and vested rights are forfeited except by the express mandate of the statute; but since the marriage contract ends, and the relation terminates, no future marital right or obligation can arise for or against either. In place of them stands the decree of the court, looking beyond the bond it is about to sever, recognizing the inevitable consequences to follow the uplifted arm, and providing for the innocent wife or husband by its own mandate that separation which, after the decree, is possible from no other source.

Nothing decided in Wait v. Wait, supra, upon which the appellant so much relies, is at all to the contrary. The question there was over the right of the innocent wife to-dower in the lands of which the husband was seized before-the divorce, and therefore during coverture. The argument against that right assumed as not open to contradiction that the divorce ended the marriage, so that none of its-future rights or obligations could survive, and then sought to show that the wife’s inchoate dower was a mere possibility or expectation having no tangible existence until in the future, following the decree. The court met the argument exactly at that point, and asserted, as the sufficient answer, what we have already pointed out, that the wife’s dower, by the concurrence of marriage and seizin, attached to the land as a fixed and vested right, not to be shaken off unless by her consent or some declared forfeiture or decree of the sovereign power, and then argued that the dissolu tian of the marriage operated prospectively only, and so had no retroactive effect upon the right already vested. Observe that the ground taken was not that the marriage relation in any respect survived the divorce. If it had been, the argument founded on the character of the inchoate dower as a vested right would have been pointless and unmeaning; and while there are, in the opinion, expressions indicating a belief in some sort of continuance of the marriage relation after the decree, they were unessential to the decision, and were not the ground upon which it stood.

The further argument of the appellant rests upon the statute against bigamy, and our construction of it in People v. Faber (92 N. Y., 146).

The statute relating to divorce prohibits the guilty defendant from marrying again, and a clause to that effect is usually inserted in the decree. This was needless, and another instance of superfluous care if the marriage relation survived the divorce, as against the guilty party; and the express prohibition is here an argument against that theory, of equal character and force with that derived by the appellant from section 48. But, in spite of the prohibition, and because of the divorced husband no longer had a wife living, it was held in People v. Hovey (5 Barb., 117), that his after-marriage, although punishable as a contempt, did not constitute the crime of bigamy. We overruled that decision, but not at all upon the ground that the divorced wife remained the culprit’s wife in any sense or respect, but for the rerson that the statute, by its express words, disclosed an intention to make the crime of bigamy consist, not only in marrying a second time while the first wife was living, but in so marrying while under the prohibition of the law, and during the life of the woman who had been the wife before the decree of divorce. We construed these specific words as intended to force such a case into the meaning of the statute, which, without them, would not at all have embraced it, and without them would have led us to affirm People v. Hovey. Surely nothing was further from our thoughts, and from the careful reasoning of the opinion, than an idea that the divorced wife remained a wife as to the defendant, and that he was a bigamist for that reason. We held him to be such because the statute put him “in the situation” of one having a wife living, 1 ‘ for the purpose ” of enforcing the statutory provision.

The recent legislation which permits a divorced husband, prohibited from remarrying, to do so after five years, and with the consent of the court, and the class of cases which affirm the validity of such second marriage in another state over whose boundaries our own prohibition does not extend, are alike inconsistent with any doctrine which makes the marriage relation as to either of the parties remain in existence after the dissolution of the contract and the severance of the bonds. With the exception of a single case in the supreme court, itself overruled, the statutes and decisions are in entire harmony with the practice and the rule which has so long prevailed. We are of opinion that it should not be changed.

The judgment should be affirmed, with costs.

All concur, except Miller, J., absent.  