Stilphen v. Houdlette , 60 Me. 447 ( 1872 )

Danforth, J.

The plaintiff claims dower in the real estate* of' her late husband, Francis Stilphen.

To sustain her action she introduces the records of this court for Lincoln county, by which it appears that she was divorced from her husband, for his fault, in June 1871. Seisin during covertureis admitted.

To overcome this prima-faeie case, the defendant shows by the records of! the same court, that the plaintiff’s husband obtained a divorce from her at the May term, in Lincoln county, for the year 1865. It is, however, contended that the earlier decree is not admissible to impeach the later. The soundness of this position need not be questioned. The decree is not offered for any such purpose, but simply to show the status of the parties at the date of the last judgment. The two may stand together. Both are judgments of the same court, between the same parties, and equally binding up-’ on them ; each to the extent of the rights settled by it. In the later case, reported in 58 Maine, 508, in the opinion of the court, it is said, ‘ The fact must not be overlooked, that a second divorce in no way impugns the first. In declaring the bonds of matrimony dissolved, the second decree is in harmony with and confirms the first.’ What then are the rights of the plaintiff, respecting dower, growing out of these two equally valid judgments ? Her claim must rest solely upon the provision of the statute, as found in the revision of 1871, c. 60, § 7. A wife divorced for the fault of her husband, ‘ shall have dower in his real estate, to be recovered and assigned to her as if he was dead.’ It will be noticed that by this statute a divorce from a husband, for his fault, affects the right of dower precisely as would the husband’s death, at common law. Davol v. Howland, 14 Mass. 219.

At common law, to entitle a widow to dower the coverture must continue up to the death of the husband, and a divorce, for the fault of either party, is a sufficient interruption of the marriage relation to defeat that right. 1 Wash, on Real Prop., 3 ed. 228 and authorities there cited. After the first decree the plaintiff had no right of dower inchoate or otherwise. In this respect her legal condition was precisely the same as if the coverture, thus dissolved, had never existed. Under the second she acquires no rights, except such as the statute gives. This confers such dower, and such only, as would accrue to her by the husband’s death. It does not restore any lost rights, it simply saves such as already exist, at least in embryo. The second decree may be of importance as afifecting the rights of the parties between themselves, as laying the foundation for a decree of alimony, but it cannot be extended so as to affect the rights of other persons.

If the plaintiff’s .husband had died at the date of the second divorce, the one which was decreed to her, she would not have been entitled to dower. The divorce previously granted, would have put an end to any such claim. So the divorce decreed to her, having, under the statute, the same effect upon her dower as her husband’s death, can give her no greater rights, but must, in this respect, leave her in the same condition. Exceptions overruled.

Appleton, C. J.; Kent, Walton, Dickerson, and Barrows, JJ., concurred.