
    Catharine Mansfeild v. James McIntyre and John Babcock.
    A decree of divorce in Kentucky does not bar the right of dower in lands lying in the State of Ohio.
    This is an application for dower, from the county of Hamilton.
    The case made by the bill, answers, exhibits, and testimony is this:
    In the year 1816, the complainant intermarried with one John Mansfield, at Campbell county, Kentucky, with whom she resided some short period, when a separation took -place, and since 1818 she has lived separate from her husband, in Butler county, in the State of Ohio. What was the cause of this separation is not shown, but it was probably by mutual agreement of the parties. During the coverture, Mansfield owned and possessed the lands described in the petition, as an estate of inheritance. This land is a part of lots numbered 201 and 202, in the city of Cincinnati. Mansfield, on October 15,1818, conveyed the premises to one John Chambers, and the same are now vested in the defendants as an estate of inheritance.
    On April 28, 1824, Mansfield filed his petition in the circuit 28] court of Campbell county, Kentucky, praying to be ^divorced from his wife Catherine, alleging'for cause that the said Catherine had willfully abandoned him and continued absent from him for a long period of time prior to the filing of the petition.
    Of the pendency of this petition, notice was given by publication in a newspaper, and at the October term of said court, 1825, a decree was pronounced divorcing the said John Mansfield from his said wife.
    John Mansfield died in 1828, and his widow now claims to be endowed of the lands before referred to.
    The defendants, in their answer, alleged that subsequent to the divorce the claimant entered into an agreement to relinquish her right of dower in the premises, in consideration of $400, to her paid by the said John Mansfield. Upon this point, there was some testimony which was contradictory.
    The case was argued by H. Hall, for the complainant; and by Riddle and Roll, for the defendants.
    For the defendants, it was insisted, that the divorce in Kentueky was a good and valid divorce; that from the time it was pronounced the complainant was no longer wife of John Mansfield, and of course did not become his widow at the time of his death. Not being his widow, she is not entitled to dower under the statute of Ohio ; for by the statute of Ohio, where a divorce is decreed for the misconduct of the wife, she is barred’of her dower, and as this decree was pronounced in consequence of the misconduct of the complainant, she is barred by the terms of the statute.
    It was further insisted that the complainant was barred in equity of her right of dower by the agreement set up in the answer. The following authorities were cited: 2 Kent’s Com. 107-109; Story’s Conflict of Laws, 499; Spencer v. Brockway, 1 Ohio, 259.
   Hitchcock, J.

It is evident that during coverture 3ohn Mansfield was possessed of the premises in which dower is ^claimed, as an estate of inheritance, and of course this complainant is en- [29 titled to the relief sought, unless there is something in the case which will operate to defeat her claim.

It is resisted on two grounds: 1. On account of the divorce decreed by the circuit court of Campbell county, Kentucky ; and 2. On account of the agreement to release dower, claimed to have been made subsequent to the divorce.

As respects this agreement, something of the kind is testified to by a witness by the name of Walker, who is far advanced in life) and who appears to have a very indistinct recollection of the circumstances, in relation to which he testifies. But from the other evidence in the case, it is manifest, that this witness refers to a transaction which took place long prior to the divorce and probably about the time of the separation. There can be no doubt, that an agreement made between husband and wife after a divorce, whereby she shall agree for a good consideration to release her right of dower, might be enforced in equity; and should the consideration be paid, the wife would not, after the death of her bus-band, be permitted to recover her dower. But in the case before us there is no evidence to sustain such an agreement, and the defense set up by the defendants on this ground entirely fails;, and the only question in the case is, whether this woman is barred of her dower by the divorce in Kentucky.

From anything which appears in the case, this divorce ought to be deemed valid in this state as well as in the state where it was prononneed. The petitioner was a resident of Kentucky. The defendant had been a resident. By the laws of that state the court had jurisdiction, and the notice required by their statute had been given. But the real question is whether a divorce decreed in Kentucky, or in any other state than Ohio, can have any effect upon the rights of the wife, so far as property in this state is concerned.

Our act relating to dower provides : “ That the widow of any person dying shall be endowed of one full and equal third part of all the lands, tenements, and real estate, of which her husband 30] was seized, as an estate of inheritance ^during coverture.” Of this right she may be barred by jointure, but it can not be defeated by any separate act of the husband during coverture. If she elope from her husband and live with another man in a state of adultery, she loses her right of dower ; but, in such ease, if she return to her husband and he becomes reconciled to her, she is restored to this right. These are the only cases named in this act which operate as a bar.

In section 6 of the “ act concerning divorce and alimony,” it is provided “that when the cause of divorce shall arise from the aggression of the wife, she shall be barred of her right of dower, whether there be issue or not.” But does this apply to divorces generally, or to those decreed by our own courts in pursuance of this statute ? A very slight examination of the statute will be sufficient to convince any one that it applies only to divorces decreed in our own courts. If the divorce is on account of the aggression of the husband, the wife is restored to all her real estate, and is to be allowed, out of the real and personal estate of her husband, such share as the court shall deem reasonable, having regard to the personal property that came to the husband by the marriage. But if the divorce shall arise from the aggression of the wife, the court may order to her, restoration of the whole ora part of the lands, tenements, and hereditaments, and also such share of the husband’s personal property as may appear reasonable, all ch’cumstances considered. In the latter case she is barred of the right of dower in her husband’s lands, in the former she is not. If there are children of the marriage who are infants, the court are authorized to direct that they be committed to the guardianship of the mother, or remain with the father, as shall seem most expedient. In fine, the court are authorized to make such disposition of the property, and also of the children, as shall do perfect justice between the parties. Now, this can not be done by a court in another state, certainly not under the provisions of our law, and therefore it could not have been the intention of the legislature to declare the effect of any other decrees than those pronounced by our own courts.

*It is urged, however, that by the statute, a woman, in order [31 be entitled to dOwer, must be the widow of the decedent, and it is said that the complainant is not the widow of John Mansfield, having ceased to be his wife long before his death. But is this true? By our law, when a divorce is decreed both parties are absolved from the obligations of the marriage contract. In looking into the decree in the present case, however, I find that although John Mansfield is divorced from his wife, she is not, in terms, released from any of her obligations to him. From aught that appears in the decree she still continued to be his wife. If so, upon his death she became his widow. But aside from this consideration, this objection can not be sustained. By our law, although the divorce operates to release both parties from the obligations of the contract, still if it be decreed in consequence of the aggression of the husband, the wife is not barred of her right of dower, but upon the death of her husband may enforce that right, in the same manner she might have done had she continued to live with him until the day of his death.

The complainant is entitled to a decree. Decree for the complainant.  