
    Elizabeth West, Libellant, versus Nathaniel West.
    The statute of March 7,1806, respecting marriage and divorce, applies to divorces decreed after the passing it, whether the adultery was committed before or after the date of the statute.
    Upon a libel for a divorce vinculo matrimonii, for the cause of adultery, evidence was offered to the Court of sundry acts of adultery committed, some of which were stated to have taken place since the 7tb of March, 1806, the date of the act hereafter mentioned. The Court, in declaring the divorce, observed that the evidence of these latter instances was not satisfactory, and that the decree was. wholly grounded on the evidence of one or more facts of an anterior date.
    After the divorce was decreed, the counsel for the libellant moved the Court for an assignment of alimony.
    By sect. 5 of “An Act for regulating marriage and divorce,”  it is enacted “ that when a divorce shall be had for the causes of affinity, consanguinity, or of impotency of [ * 224 ] * either of the parties, the wife shall have restored to her all her lands, tenements, and hereditaments; and a judgment may be passed for a restoration to her of all or such part of the personal estate specifically, or the value thereof, which hath come to her husband’s hands by force of the marriage, as the justices of the Supreme Judicial Court, from all the circumstances of the case, shall determine equitable ; and the} may make use of such kind of process, to carry their judgment into effect, as shall be necessary; and the Court, in case they think proper, may compel the husband to disclose, on oath, what nersonal estate he hath received in right of his wife, and how the same hath been disposed of, and what proportion thereof remained in his hands at the time of such divorce: and when the divorce shall be for the cause of adultery committed by the husband, the wife shall have her dower assigned her in the lands of the husband, in the same manner as if such husband was naturally dead.”
    The preamble of the additional act, passed March 7,1806, recites that, in the former act,11 no provision is made for a woman divorced for the cause of adultery committed by the husband, excepting dower to be assigned her in the lands of the husband, which provision is in many cases inadequate.” The statute then enacts “ that when any woman shall hereafter be divorced from the bond of matrimony, for the cause of adultery committed by the husband, in addition to her dower, as in the said act is provided, and to the real estate which her husband held in her right, the court by whom such divorce may be decreed shall have power to assign to her, for her own use, all the personal estate which the husband hath received by reason of the marriage, — or such part thereof as shall be just and reasonable under all the circumstances of the case and of the family of the parties,” &c.
    For the libellant it was contended,
    that the fair construction of the first statute is that, in addition to the provisions for the wife, in the cases which are first recited in the section, and which make the marriage void ab initia, when the' divorce follows from the misconduct of the husband, the wife shall have her dower * in his real estate. The word “ also ’’seems to have [*225 | been omitted in the last sentence of the section. It must have been intended that the wife shall “ also,” i. e. beyond or besides the foregoing provisions, have her dower, &c. If the preamble of the additional act of March last is objected to this construction of the former statute, it was argued that the new act was explanatory of the former one, to which it is in addition, and the preamble can intend no more than that no express or precise provision is made by the first law for such a case as this. This act being made in explanation of the former one, the libellant had a claim to the benefit of its provisions.
    
      For the respondent
    
    it was answered, that there was no ambiguity in the first statute. If the marriage was void from the beginning, for any of the causes redited, the wife was to be restored to every thing she had lost by such void marriage. If it should be decreed void for the misconduct of the husband, having been originally lawful and valid, she should be entitled to dower in his estate.
    If, indeed, this construction were doubtful, the legislature have, by the second act, given an explanation ; they have said expressly, that the former law had made no provision except dower.
    And it was strongly contended that the second act, having been passed since the facts on which the Court had bottomed their decree of divorce took place, cannot have any operation on the present question. It is true, the act speaks of divorces thereafter decreed; but, upon every principle of natural justice, this must intend divorces for acts of adultery thereafter committed. On any other construction, it is an ex post facto law, and inflicts a penalty on the respondent, to which he was not liable when he committed the offence. If this was to be considered as a civil suit only, it was said there was no instance of a judicial court applying a rule of damages not existing at the time of the fact committed.
    
      For the libellant, in reply,
    it was said that, in the very next sentence of the first statute, it is provided, where a divorce is de- | * 226 ] creed * for the adultery of the wife, that the husband shall have her personal estate forever, and her real estate during her life, or, if there be issue, during his life; that a construction which made the statute so partial in cases that had no shade of difference as to criminality, was unreasonable and absurd; and it was suggested that the practice of the Court, under the statute, has been to decree alimony to the wife upon a divorce for the adultery of the husband.
    
      
       Passed March 16, 1786.
    
   (Sedgwick, J.,

observed that such a practice had formerly obtained, biii; that, some time since, on considering the statute with more attention, the Court were satisfied that the practice was wrong, and in all late cases they had refused ihe alimony.)

The doctrine that ex post facto laws are void, relates only to such laws as go to inflict a penalty on an action not criminal at the time of its commission, or to laws affecting contracts previously made. But this statute relates to neither. It is much nearer akin to the laws proscribing the descent and distribution of estates.

A woman married to-day has an inchoate right to the third part of her husband’s lands, as her dower. But no one doubts the right of the legislature to declare, by law, that dower in future shall be the fourth part only, instead of the third part, and that if such declaration was made, it would, without question, apply to the case of a woman married before.

So, till within a few years, the eldest son inherited two shares in the estate of his father dying intestate. The legislature abolished this pract oe ; and it was never doubted they had a right so to do and that the new law applied to the estates of all persons dying intestate after the law was passed

Otis and Prescott for the libellant.

Amory and Dexter for the respondent.

The wife of one dying intestate, and without issue, is, by the existing laws, entitled to one moiety of her husband’s personal property. If the legislature were, by a new law, to say that wives so situated should hereafter take the whole personal estate, would this be properly objected to as an ex post facto law ? The scope of the respondent’s argument is simply this : — When I committed these acts of adultery, I knew that the only penalty upon * me was a divorce from my wife, and an assignment [ * 227 j to her of dower in my real estate. Had I known that I was, in addition, to restore to her all her personal property, I should never have exposed myself to so severe a penalty. The opinion of the Court was afterwards delivered by

Sedgwick, J.

We have considered the questions that have been argued, and are unanimously of opinion, that the first statute made no provision for a woman in the situation of the present libellant, except a dower in her husband’s lands, We are also agreed that the additional act, passed March 7, 1806, applies to all cases of divorce decreed after the passing of it, whether the facts of adultery alleged and proved were committed before or after that dale. By an intermarriage, the husband and wife, during the coverture, have, as a joint fund for their mutual benefit, the property which previously belonged to each, and also that which afterwards comes by either, and they have an inchoate title, which is consummated on survivorship, to certain proportions of this joint fund.

The legislature had an unquestionable right to prescribe what part of this joint fund shall go to each party, in the event of a separation by divorce. We think the provision not a hard one; and that, in most- cases, it is reasonable and just that the whole property which came to the husband through the wife should be restored to her, upon a criminal violation of the marriage contract on the part of the husband. But as there rpay be circumstances in this case which would lead the discretion of the Court to stop short of such an allowance, we shall malee no decree upon the subject at this time.

Note. — It was afterwards stated that certain terms had been mutually agreed by the parties; so nothing further was done in the matter by the Court. 
      
      
         Davol vs. Davol, 13 Mass. Rep. 264.— Howard vs. Howard, 15 Mass. Rep. 196
     
      
      
         Vide Wilkinson on Line, 137—147, and the cases there cited.—2 Dwarris on Stat. 680—687, and cases there cited. — 7 Bacon Ab. by Guyl. & Dodd. 439, Stat. (c — Fowler vs. Chatterton, 6 Bingk. 258. — 1 Kent, Comm. 455, 2d ed.
     