Kimball v. Kimball , 44 N.H. 122 ( 1860 )

Bell, C. J.

There seems to us to be insuperable difficulties in the way of the allowance of this motion. The object of the suit is merely personal, to change the status or relation of the pai'ties to each other; to put an end to the connection between them of husband and wife. As incidental to that principal object, the court has the power to make decrees relative to alimony, to exonerate the wife’s estate from the claim of the husband, and to make orders relative to the care and custody of the children. But all these are regarded as merely incidental to the decree of divorce Sought, or perhaps to some decree of divorce already granted. The principal object in this case can no longer be reached. The marital relation has been already ended by the death of the husband and libelant. The court can no longer decree a divorce between parties one of whom has ceased to live; and with the failure of the principal object of the bill, the incidents must also ordinarily fail. There may, perhaps, be cases where the court might order a decree to take effect from a former term, when the parties were living, where the case was ready for decision at such former term, and the entry of the decree was delayed for the convenience of the court; but that is not this case, the libelant’s death having occurred before the entry of the libel in court, and before any of the papers had come into possession of the court.

The general rule at common law and in the nature of things is, that suits of all kinds abate by the death of the plaintiff. The action may be prosecuted, or revived, only in those cases where the right of the plaintiff survives to his personal representatives, his heirs, or executors. They can not be prosecuted for the benefit of others who do not occupy the position of the plaintiff, though they may have rights of their own which might be settled by the action.

We are unable to recollect any case, where a suit brought for the mere personal benefit of an individual, and in no way affecting rights of property, except incidentally, has ever been prosecuted by any other than the party himself, unless by virtue of some express statute.

It seems to be a leading and essential requisite to a decree of divorce, that the fact of an existing marriage should be proved. Thus it is said, in Bishop on Divorce, sec. 814, “ In every divorce suit, on whatever cause founded, the plaintiff must allege and prove, first his marriage with the defendant, and secondly a sufficient breach of matrimonial duty.” Ibid., sec. 315. “ The necessity of proving the marriage arises not only from the fact that the marriage is an essential ingredient in the offense alleged, since no violation of matrimonial duty can take place where the matrimonial relation does not exist, but likewise from the consideration that as divorce is the Suspension or dissolution of this relation, if there is no relation subsisting, there is nothing for the divorce to act upon. And so marriage is the foundation of the whole proceeding, and the decree or sentence of divorce affirms the marriage in form and effect, as well as declares the separation.”

It would seem that in England, in suits for nullity of marriage, third persons may prosecute. Thus (Bishop on Divorce, sec. 317) Dr. Swabey, the judge, admitted, on the authority of former decisions, that if the suit were prosecuted by a person other than one of the parties to the marriage, and the proof of the fact of the marriage were not in the power of such a plaintiff, it might, without tDe proof, be declared void. Under the latter state of facts the decree of tbe court would pronounce tbe marriage void, if any such were had. It is no where suggested that any such practice exists in libels for divorce. By the statute (Rev. Stat., ch. 148, sec. 8 ; Comp. Stat. 377), “a divorce from the bond of matrimony shall be decreed for the following causes, in favor of the innocent party.” By the language no authority is conferred to decree a divorce in favor of a third person, or at his instance.

The motion must he denied.