
    Rogers, Appellant, vs. Hollister and another, Respondents.
    
      February 27
    
    March 17, 1914.
    
    
      Divorce: Effect of judgment when entered: 'Wills: Construction: “Husband."
    
    1. It would seem that a judgment of divorce granted pursuant to see. 2374, Stats., is effectual -when entered to dissolve the marriage contract, subject to the conditions prescribed in the statute.
    2. Where, while an action by a husband for a divorce was pending, the wife made her will giving her personal property to him “providing he is my husband at the time of my decease,” and within a year after judgment of divorce Was granted pursuant to sec. 2374, Stats., the wife died, it is held that he was not, within the meaning of the will, her husband at the time of her decease.
    Appeal from a judgment of the circuit court for Walworth county: E. B. Belden, Circuit Judge.
    
      Affirmed.
    
    On September 19, 1911, Fred L. Rogers, husband of Martba A. Rogers, commenced, an action for divorce against bis wife, said Martba A. Rogers. While tbe action was pending and on October 27, 1911, said Martba A. Rogers made ber will wbicb contains tbe following:
    “If Fred Rogers is my bnsband at my decease, I give, devise and bequeath to him all of my personal property absolutely, and tbe right to use and occupy my residence where I now reside for and during bis natural life, providing be is my husband at tbe time of my decease. . . .
    “I nominate Fred Rogers, my husband, executor of this my will without bonds, provided be is my husband at my decease.”
    Judgment was entered in tbe action above mentioned January 9,1912, wbicb provided:
    “It is ordered, adjudged, and decreed, as and for an interlocutory judgment herein, that tbe marriage and bonds of matrimony between tbe plaintiff, Fred L. Rogers, and tbe defendant, Martba Alice Rogers, be and tbe same are hereby dissolved, and each of tbe parties hereto is forever freed therefrom.
    “It is further ordered-, adjudged, and decreed that tbe plaintiff deliver to tbe defendant all their household goods and fixtures now in their home in tbe city of Delavan, Wal-worth county, Wisconsin, and also that tbe plaintiff pay to tbe defendant seven hundred dollars ($700) in cash, and that be give to tbe defendant two notes of five hundred dollars ($500) each, one due in one year from tbe date thereof, and tbe other due in eighteen months from the date thereof, with interest on each of said notes at tbe rate of six per cent, per annum.
    “And it is further ordered, adjudged, and decreed that when tbe said articles of furniture and fixtures have been delivered and tbe payment of money made and tbe said notes given, as described in tbe findings in this action, by tbe plaintiff to tbe defendant, tbe same shall be a final division of tbe property of tbe plaintiff between tbe parties hereto.
    “And it is further ordered, adjudged, and decreed that upon tbe application of either party to this action, made after tbe expiration of one year after the entry of this interlocutory judgment, or after tbe last modification or revision thereof, if any be made, a final decree of divorce may be entered in said action as by law in such case made and provided.”
    Martha A. Rogers died December 26, 1912. The only question here involved is whether Fred L. Rogers was at the time of the death of Martha A. Rogers her husband within the meaning of her will.
    The question arose on application for the appointment of an administrator of the estate of Martha A. Rogers, deceased, in the county court of Walworth county. The county court held that Fred L. Rogers was the husband of Martha A. Rogers, deceased, and ordered that letters' of administration be granted to him. On' appeal the circuit court reversed the judgment of the county court and directed that letters of administration issue to J ames R. Williams, father of deceased. This appeal is from the judgment of the circuit court.
    
      Geo. G. Sutherland and Charles E. Pierce, for the appellant.
    
      E. L. von Suessmilch, attorney, and John B. Simmons, of counsel, for the respondents.
   Keewikt, J.

In the consideration of the question involved in this case it will be well to refer briefly to the Statutes bearing upon the subject.

Sec. 2330, Stats., prohibiting marriage under certain circumstances, was amended by ch. 271, Laws of 1901, by adding thereto a provision to the effect -that it shall not be lawful for any person divorced to marry again within one year from the date of the entry of such judgment, and that the marriage of any divorced person within one year from the date of the entry of such judgment shall be null and void, but upon application of such divorced person the court granting the divorce may authorize the marriage of such person within the year. This statute was again amended by ch. 456, Laws of 1905, so as to provide, in effect, that it shall not be lawful for any divorced person to marry again within one year from the date of entry of such judgment, and that the marriage of any divorced person solemnized within one year from the date of such judgment of divorce shall be null and void; and providing further that the circuit judge who granted the divorce, upon application of both parties, may by order authorize the remarriage of such divorced persons to each other within the year. Ch. 323, Laws of 1909, made several provisions and amendments to the law on the subject of divorce, and among others sec. 23607c, which provided in effect that in every action for divorce in which it should be determined that a divorce be granted, an interlocutory judgment shall be entered which shall fully determine the rights of the parties, provide for the care, custody, and maintenance of the minor children, fix the amount of alimony, etc., and that such judgment shall determine the status of the parties, but such determination of the status shall not be effective, except for the purpose of an appeal to review the same, until after one year from the date when such interlocutory decree was entered; that any of the provisions of such interlocutory judgment may be reviewed by appeal within one year from the date of such interlocutory judgment or from the date of the last modification or revision of the same, if modified or revised after it is first entered. Also, sec. 2360l, which provided that at the expiration of one year from the entry or from the date of last modification of such interlocutory judgment the final judgment may be entered, unless such interlocutory judgment shall have been reversed or so modified on appeal as to'prevent entry of such final judgment, unless the court, for sufficient cause, upon its own motion or upon the application of a party, shall otherwise order before the expiration of such period, and that if an appeal from such interlocutory judgment be pending at the expiration of said year, no final judgment shall be entered until such appeal shall have been finally determined.

Other changes were made by the legislature in 1911 (ch. 239), which left the law on the subject as follows:

“Sec. 2314. 1. When a judgment of divorce from the bonds of matrimony is granted in this state by a court, such judgment, so far as it determines the status of the parties, shall not be effective, except for the purpose of an appeal to. review the same, until the expiration of one year from the date of the entry of such judgment.
“2. So far as said judgment determines the status of the parties the court shall have power to vacate or modify the same, for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the entry of such judgment. But no such judgment shall be vacated or modified without the service of notice of motion, or order to show cause on the divorce counsel, and on the parties to the action, if they be found. If the judgment shall be vacated it shall restore the parties to the marital relation that existed before the entry of such judgment.
“3. It shall be the duty of every judge, who shall enter a judgment of divorce, to inform the parties appearing in court that the judgment, so far as it affects the status of the parties, will not become effective until one year from the date when such judgment is entered.
“4. Such judgment, or any provision of the same, may be reviewed by an appeal taken within one year from the date when such judgment wa's entered. At the expiration of such year, such judgment shall become final and conclusive without further proceedings, unless an appeal be pending, or the court, for sufficient cause shown, upon its own motion, or upon the application of a party to the action, shall otherwise order before the expiration of said period. If an appeal be pending at the expiration of said year, such judgment shall not become final and conclusive until said appeal shall have been finally determined.”

It will be seen that by the amendments made in 1911 the provision in ch. 323, Laws of 1909, respecting the entry of an interlocutory judgment was dropped out and other changes made.

Sec. 2374, Stats., does not make plain just what the status of the parties is during the year after judgment. True, it provides that the judgment, so far as it determines the status of the parties, shall not be effective, except for the purpose of an appeal to review the same, until the expiration of one year from date of entry, and that so far as it determines the status the court shall have power to vacate or modify it at any time within one year, and if the judgment shall be vacated it shall restore the parties to the marital relation that existed before the entry of the judgment. The statute makes it the duty of the judge who shall enter the judgment to inform the parties that the judgment, so far as it affects the status of the parties, will not become effective until one year from date of entry. It further provides that the judgment may be reviewed by appeal within one year, and at the expiration of one year shall become final without further proceedings unless an appeal be pending or the court shall otherwise order before expiration of said period.

, Now it is contended by appellant that the judgment here entered was not effectual to dissolve the bonds of matrimony until the expiration of one year from date of entry; therefore, at the time of the death of Martha Alice Rogers the appellant, Fred L. Rogers, was her husband. On the part of the respondents it is insisted that the judgment dissolved the marriage contract at the date of entry, subject to revision within one year, and conditions specified in the statute; and that in any event the appellant was not the husband of Martha Alice Rogers at the time of her death within the meaning of her will.

We need only consider the latter proposition in this, case, namely, whether Fred L. Rogers was the husband of Martha at the time of her death within the meaning of her will. While the divorce action had been commenced shortly before the will was executed, it is plain from the record that Martha was opposed to the divorce and desired a reconciliation; but the appellant persisted, and the judgment was entered contrary to the wish of the wife. Whether the judgment dissolved the marriage contract when entered, subject to modification within the year, or whether it became effectual to dissolve the contract at the end of the year, it was at least a conditional judgment, which without further action upon it would automatically become final and conclusive at the end of one year from its entry. So it would seem that when Martha Alice Eogers made her will bequeathing property to Fred L. Rogers if he should be her husband at the time of her death, she meant that she gave the property to him if no divorce -was granted. It does not seem that she intended to give her property to him if he had a judgment of divorce entered against her which would at least be final and conclusive one year from the date of entry unless otherwise ordered. She doubtless meant a “duly commissioned husband,” with all the rights and privileges and charged with all the duties and obligations of a real husband in law and in fact. Whatever the effect of the judgment may have been under the statute when entered, it at least impaired the relation which formerly existed between Fred L. Rogers and Martha Alice Eogers as husband and wife and severed the social if not the legal relation which formerly existed between them. We therefore conclude that Fred L. Rogers was not, at the time of the death of Martha Alice Eogers, her husband within the meaning of the will.

The history of legislation on the subject and the statute as left by ch. 239, Laws of 1911 (sec. 2314, Stats.), would seem to indicate that it was the intention of the legislature that the entry of judgment should dissolve the marriage contract, subject to the conditions prescribed by the statute, but this we do not decide. It follows that the judgment of the court below must be affirmed.

By the Court. — The judgment of the court below is affirmed.

Tbe following opinion was filed March 23, 1914:

Maeshali,, J.

(concurring). In harmony with what I have several times said, I think the court should now decide the question of whether under sec. 2374, Stats., the parties to a divorce action are man and wife during the waiting period after judgment, except as regards remarrying. That is a very important matter. The public interests require all uncertainty in respect to it to be set at rest at the earliest possible moment. Serious consequences to many innocent persons and to the social state, in general, are within reasonable probabilities so long as the ambiguity left in the statutes remains unsolved. There is opportunity to solve it now. The matter has been well presented by counsel. We are as able to decide upon it now as we ever will be. Judicial duty, from my viewpoint, requires action without hesitation. The one who speaks for the court inclines to that view, as will be clearly seen by the opinion closing the case.

What does the statute mean by the language: “Such judgment, so far as it determines the status of the parties, shall not be effective, except for the purpose of an appeal . . . until the expiration of one year from the date of the entry . . .” Looking at that, by itself, one would, unhesitatingly, say, that the legislative idea was a judgment in form only for a waiting period of one year; the parties to be nevertheless man and wife, in fact, the same as if no judgment had been entered.

The history of the legislation on the subject, as indicated by the opinion of the court, shows that the real purpose of the legislature has been to prevent remarriage until the expiration of one year after promulgation of the result of the divorce trial. The term “status” was used, which has a well known technical meaning in regard to the social relations. It stands, where used in respect to the condition of marriage, for a thing, not physical, but incorporeal; the existence of a condition embodying ail tbe elements of tbe social relation in tbe marriage state; tbe condition of tbe parties in respect to tbeir legal relations, one to another, to tbe family, and to organized society.

Words of a statute, baying a well known technical meaning in tbe law, are presumed to bave been used in that sense; but such presumption is by no means conclusive. If tbe statute, as a whole, shows, clearly, that some other reasonable meaning was intended, then it must be so treated; since, under all circumstances, tbe legislative will, if discoverable, should prevail.

So, as indicated, if we are to look no further than the language I bave quoted, there would be no escaping tbe conclusion that, though a divorce judgment, in form, in tbe most positive terms, as in this case, dissolves a marriage contract, such contract yet subsists as before for tbe period of one year. No event short of a vacation of tbe judgment could be said to, logically, restore tbe marriage state, because of tbe condition not having been created admitting of any such operations as that of restoration.

Now turning to tbe second subdivision of tbe statute we read: “If tbe judgment shall be vacated it shall restore the ;parties to the marital relation that existed "before the entry of such judgmentHow is that? How can tbe “marital relation that existed before tbe entry of such judgment” be restored if never displaced? Eestoration implies, necessarily, prior existence and an interim of nonexistence.

Are not tbe two parts of tbe statute, in tbeir literal sense, fatally contradictory ? It seems so. That tbe legislature did not intend any such absurd result, we must assume. If we can see-any reasonable way out of tbe dilemma, — tbe situation created by tbe crude work of those responsible for tbe manner of vitalizing tbe idea of tbe lawmakers, it is a judicial duty to adopt it.

Here we bave a good example of tbe difficulties cast upon the court by inefficient efforts to clearly state a legislative purpose. Difficulties of that kind, seemingly, have greatly increased in recent years, over and above such as were incident to legislation when lawmakers depended upon themselves for the framing and shaping of laws.

I see no way of minimizing or changing, in any way, the ordinary meaning of the words of sub. 2 of the section under consideration. Therefore the way out of the difficulty must be sought by minimizing the ordinary meaning of the language in the first part of the section, so that it will convey the idea of a termination of the state which the second subdivision declares a vacation of the judgment “shall restore.” There is no very great difficulty in so minimizing the term “so far as it determines the status of the parties shall not be effective.” It may be restrained to mere capacity to remarry, — the status of marriageability, — so restrained within the reasonable meaning of the word “status” or by reading words, as in place, which are there by necessary implication. Either is a perfectly legitimate method of judicial construction. Neacy v. Milwaukee Co. 144 Wis. 210, 217, 128 N. W. 1063.

Status with-reference to the marriage relations, in general, ipeans the entirety, the marriage state with all which the name implies; but, after all, it is the mere method of stating a condition. So it may be appropriately used with reference to the marriage state, or with explanatory context, a minor condition of it. A condition as to marriageability, is a status in a proper sense. Unless the word be so restrained, in this instance, there is an irreconcilable conflict in the statute which would require its condemnation as void for uncertainty. It seems that the legislature must have used the term “status” in the limited sense mentioned, and have had that in mind in declaring that a vacation of the judgment shall operate to restore the marital relations that existed before the entry of the judgment.

Reading tbe two provisions together, by necessary inference, tbe modifying phrase, as regards capacity to remarry, or some similar words, in effect, are in place after tbe word “status.” So, in my judgment, upon tbe entry of a divorce judgment, as in this case, tbe parties cease to be man and wife; their former status is not affected, for tbe time being, as to marriageability; but otherwise their condition is entirely changed. Cohabitation between them during- the period of waiting would be adultery and marriage of either person to a third person would be bigamy.

Upon the ground stated I concur in the judgment in this case.  