
    PITTS against PITTS.
    
      Supreme Court, First District; Special Term,
    
    
      November, 1872.
    Divorce.—Adultery.—Dower.
    Under 2 Rev. Stat., 146, § 48,—which declares that a wife convicted of adultery, forfeits her right of dower,—she incurs forfeiture only when convicted of adultery by the final judgment of a competent court in a proper action, brought by the husband. A finding of a referee that she had been guilty of adultery, but that the husband had condoned the offense, does not bar her right of dower.
    Motion to vacate an order.
    Friend Pitts and others brought this action against Mary Ann Pitts and others, for a partition, and obtained a judgment, in which an allowance for dower was made to one Rachel Ann, wife of John Pitts, who were also defendants in the partition suit. The defendant, John Pitts, now moved to vacate an order for payment into court of such allowance, on grounds which fully appear in the opinion.
    Gardiner, Ward & Wagstaff,, for the motion.
    
      R. L. H. Finch, opposed.
   Fancher, J.

This is a motion by John Pitts, a defendant, to vacate an order entered in this action on September 4, 1872, whereby a referee was directed to collect a mortgage and pay to Rachel Ann Pitts, another defendant (wife of said John Pitts), eight hundred and two dollars and seven cents, being the amount found due her, according to the principles of life annuities, for her contingent right of dower in her husband’ s share of the real estate described in the decree herein.

The ground on which the motion is made, is, that the wife has forfeited her dower by adultery.

It appears that the husband had brought an action for divorce against the wife, prior to the judgment of partition herein, in which the referee found that the wife had been guilty of adultery, on April 8, 1869, which was prior to the commencement of this partition suit, and that the husband had condoned the offense by subsequent cohabitation with the wife, for which reason the complaint in the divorce action was dismissed.

The husband now moves to have the wife’s allowance for right of dower set aside, because of such offense.

It is contended by the learned counsel for the motion, that the wife was " convicted of adultery,” within the meaning of 2 Rev. Stat., 146, § 48, and thereby forfeited her right of dower. But I think the plain meaning of the statute is that she incurs the penalty of forfeiture of her dower, when she is convicted of adultery by the decree or judgment of a competent court in a suit for divorce brought by the husband. It would put a strain upon the statute which, by fair interpretation, it cannot bear, to construe it to mean some proof of adultery, or anything less than a conviction of adultery by a decree or judgment.

It would be going too far to say that such a conviction had been had whenever a referee has found that adultery has been proved, though the husband had condoned the offense, and on the report of such facts the complaint of the husband had been dismissed.

In such case, I think, there was no conviction of adultery within the statute. This will be clear if we refer to the course of enactments on the subject.

Under the statute of Westm. 2, 13 Edw. I., adultery in the wife, accompanied with elopement, created a forfeiture of dower by way of penalty. But a reconciliation with the husband reinstated the wife in her right. That statute was re-enacted in New York in 1787, and it barred the wife of dower, who eloped and lived with an adulterer, unless her husband was subsequently reconciled to her.

Our Revised Statutes have abridged this ancient bar by confining it to cases of a dissolution of the marriage contract for misconduct, and to cases of conviction of adultery in a suit for divorce, brought by the the husband. Elopement and adultery are no longer sufficient to bar dower ; but there must be a conviction of adultery in a suit for divorce.

It is said in the elementary works which treat of the subject, that “a divorce a vinculo matrimonii bars the claim of dower.” The reason is, that the claimant must have been the wife at the death of the husband. The remark thus quoted was well employed by Blackstone., and other old writers, who wrote when the common law was in full vigor, and when unchanged by later statutory enactments. But the remark is not now universally true in our country; for the statutes of many of the States have created new grounds of divorce a vinculo, which were unknown to the common law ; and in such cases, the right of dower can only be barred by express statutory enactment (See Wait v. Wait, 4 N. Y. [4 Comst.], 100).

There was no divorce a vinculo, at common law, for any cause arising subsequent to the marriage.

Not even adultery was a sufficient ground for divorce a vinculo, at common law, but only for a decree a mensa et thora.

It is, therefore, plain that it is not adultery, which of itself, can bar dower. It must be followed by a conviction in a suit for divorce by the husband ; and such a conviction must be established by the final decree or judgment in a proper action.

It follows that the wife was not barred of her right of dower in this case, and the motion must be denied.

Motion denied and stay of proceedings vacated.  