Holmes v. Holmes

Vanderburgh, J.

■ The plaintiff’s cause of action is for a divorce on tbe ground of tbe adultery of tbe defendant. In her co'm-plaint sbe demands that sbe be adjudged to have ber dower in defendant’s lands as if be were dead, and under tbis relief sbe claims to be entitled to- bold tbe homestead of defendant for life, and an equal undivided third of all other lands of which be was during coverture seised, and to be allowed alimony. Tbe court adjudged tbe plaintiff entitled to a divorce on tbe ground stated, and awarded alimony, but refused dower, or tbe provision in lieu of dower, provided for by tbe present statute.

There is no doubt that 1878 G. S. ch. 62, § 24, secures to tbe wife, in tbe cases specified, an unqualified right to dower in tbe lands of ber husband as if be were dead. By tbe statute in force when tbis section was enacted, tbe widow’s right of dower, substantially as at common law, was preserved to ber. 1851 R. S. ch. 49, § 1. By Laws 1875, ch. 40, estates in dower eo nomine, as then existing, were abolished, and, in lieu thereof, provision was made for a life estate in tbe homestead of tbe husband and an undivided one-tbird of all other lands of which be might die seised. By Laws 1876, cb. 37, and again in tbe Probate Code, enacted in 1889, tbe subject is revised, and, with some changes, tbe provisions of the act of 1875 are retained, and incorporated under tbe bead of “Title to Real Property by Descent.” Now, under section 24, in question, is tbe rule to be applied as tbe term “dower” was used and understood when that section was enacted, or is it to be given an enlarged and extended application, so as to embrace tbe present liberal provisions for tbe wife made out of bis estate on tbe death of ber husband? Estates in dower have been changed and enlarged in many of tbe states by legislative enactment, (Noel v. Ewing, 9 Ind. 46; Smith’s Appeal, 23 Pa. St. 9; Beard v. Knox, 5 Cal. 252;) so that it has come to be understood generally as tbe provision in tbe nature of dower which tbe law makes for tbe wife from tbe estate of ber deceased husband, and it is contingent only upon tbe seisin of tbe husband and bis death, and beyond bis power to divest. Tbe present provisions for tbe wife, above specified, were clearly intended to be in lieu of dower, and retain its essential features. Tbe interest thereby created is inchoate upon tbe marriage and seisin, and becomes absolute at bis death, and is thus distinguishable from other provisions made for ber as heir in certain contingencies. Her estate extends to the homestead and one-third of other lands of which her husband is seised during coverture, and cannot be divested without her consent. Unless it be held that any material change in the law of dower as it stood when 1878 G. S. ch. 62, § 24, was enacted would operate as a repeal of that section, or make it inoperative, we are of the opinion that the term “dower” therein must be interpreted to extend to the present statutory provisions referred to. The estate under consideration, thus created for the benefit of the wife, has always since the act of 1875 been treated by this court as in the nature of dower, and governed by the same rules of legal construction. In re Gotzian, 34 Minn. 159, (24 N. W. Rep. 920;) In re Rausch, 35 Minn. 293, (28 N. W. Rep. 920;) McGowan v. Baldwin, 46 Minn. 479, (49 N. W. Rep. 251;) Dayton v. Corser, 51 Minn. 406, (53 N. W. Rep. 717.) When, therefore, a divorce is ordered for the cause of adultery committed by the husband, the wife will be entitled to dower, as provided by the present statutes on the subject, as if he were dead. The decree of divorce will establish her right to the estate, but we do not think the statute contemplates that it should be set off or assigned to her in the divorce proceedings. Nor would such decree be the basis of a writ of assistance to put her in possession, (2 Bish. Mar. & Div., Ed. 1891, §§ 1522, 1639;) but, if possession is denied her, she can recover it, and will be entitled to partition as in other cases. As she was not entitled to such relief in this action, the judgment must be affirmed.

(Opinion published 56 N. W. Rep. 46.)