were at first granted in the province of New York.84 But be that as it may, after the act of 1787, all divorces a vinculo matrimonii were referred by the courts to the authority of that act,85 and it was even denied that the ecclesiastical jurisdiction to grant limited divorces, or divorces a mensa et thoro, or to dissolve a marriage by reason of a canonical disability, existed here at all. But in 1824 and subsequently acts were passed permitting limited divorces and also annulment of marriages in certain cases.87

86

Annulment of Marriage. There is, however, a jurisdiction in the State courts, independent of statute, to declare a marriage void ab initio for fraud or lunacy.88 But the sentence in the last class of cases is not a divorce, but that there is no marriage between the parties, and, therefore, the maxim, "Ubi nullum matrimonium ibi nulla dos," applies in all such cases, and there is no dower because no marriage.83 The Code now regulates actions for annulment of marriage, and the rights of the issue are preserved by statute.91

Dower not Barred by Wife's Misconduct, but by Sentence against Her. Since the repeal of the English Statutes and the adoption of the Revised Statutes in 1830, adultery, the wife's abandonment of the husband and her living with the adulterer, or her consent to the ravisher after a rape, do not forfeit dower, unless the woman has been divorced therefor, by a decree of divorce a vinculo matri84 Record of N. Y. Court of Assizes, 316, 318, 319, 519; Burtis v. Burtis, Hopk. 557, 563.

85 Erkenbach v. Erkenbach, 96 N. Y. 456; Griffin v. Griffin, 47 id. 134, 138; Forrest v. Forrest, 25 id. 501, 505; Wood v. Wood, 61 App. Div. 96, 98; Durham v. Durham, 99 id. 450.

86 Burtis v. Burtis, Hopk. 557; Perry v. Perry, 2 Paige, 501; Jones v. Jones, 90 Hun, 414; Higgins v. Sharp, 164 N. Y. 4, 9; Cohen v. Congregation Sheareth Israel, 114 App. Div. 117; cf. Campbell Crampton, 8 Abb. N. C. 363.

V.

87 Chap. 205, Laws of 1824; Perry v. Perry, 2 Barb. Ch. 311; Perry v. Perry, 2 Paige, 501; Di Lorenzo V. Di Lorenzo, 174 N. Y. 467; Svenson v. Svenson, 178 id. 54; Bange v. Bange, 46 Misc. Rep. 196; Weiberg v. Weiberg, 112 App. Div. 231; cf. Code Civ. Proc., §§ 1762, 1767.

88 Griffin v. Griffin, 47 N. Y. at p. 138; Weightman v. Weightman, 4 Johns. Ch. 343; Ferlat v. Gojon, Hopk. 478; Di Lorenzo V. Di Lorenzo, 71 App. Div. 509; revd., 174 N. Y. 467; Svenson Svenson, 178 id. 54; cf. Higgins v. Sharp, 164 id. 4, 9; Jones v. Brinsmead, 183 id. 258.

89 Price v. Price, 124 N. Y. 589; $ 1754, Code Civ. Proc.; §§ 6, 7, Domestic Relations Law; §§ 1742, 1743, Code Civ. Proc; Stein V. Dunn, 119 App. Div. 1; cf. Glenn v. Glenn, 70 id. 576; Di Lorenzo v. Di Lorenzo, 71 id. 509, 174 N. Y. 467.

90 §§ 1742-1755, Code Civ. Proc.; Gore v. Gore, IC3 App. Div. 75; Wander v. Wander, 11 id. 189.

91 Chap. 225, Laws of 1903; § 1749, Code Civ. Proc.; Matter of Del Genovese, 56 Misc. Rep. 418; art. 2, Domestic Relations Law, chap. 14, Consol. Laws.

93

monii; the former laws to the contrary being repealed.92 The action for a divorce is now wholly regulated by statute in New York, and, in order to bar dower, the divorce must be a divorce a vinculo matrimonii, and on the statutory ground. When the woman forfeits dower, she forfeits all other pecuniary provisions made for her in lieu of dower.95

94

97

Husband's Misconduct. A divorce a vinculo matrimonii granted the wife for misconduct of the husband, does not forfeit the wife's title of dower,96 even if she marry again. Such divorce is only prospective in operation. Thereafter she has no title or interest in subsequently acquired property of the quondam husband.98 But on his divorce for his own fault, the quondam husband loses all right in the income of the wife's separate estate, and no doubt forfeits his title to curtesy.99

Limited Divorce. A divorce a mensa et thoro does not forfeit any right of property arising through the conjugal relation.1

Wife's Absence, Effect of. While a wife's continuous absence for five years, without her husband's knowledge of her being alive, may prevent his second marriage from being bigamy,2 yet such second marriage does not deprive the wife of dower, or entitle the woman last married to dower, though she entered into the supposed marriage relation in entire good faith.3

Effect of Divorce on Wife's Separate Property in Former Husband's Hands. A divorce a vinculo matrimonii, obtained by the wife, has no effect

921 R. S. 741, § 8; 2 id. 146, § 48; Reynolds v. Reynolds, 24 Wend. 193; Pitts v. Pitts, 52 N. Y. 593; Schiffer v. Pruden, 64 id. 47, 49; Van Cleaf v. Burns, 118 id. 549; Cooper v. Whitney, 3 Hill, 95.

93 Code Civ. Proc., chap. XV, art. II, §§ 1756-1761; § 8, Domestic Relations Law, chap. 14, Consol. Laws.

94 Pitts v. Pits, 52 N. Y. 593; Code Civ. Proc., §§ 1736, 1760; Van Cleaf v. Burns, 133 N. Y. 540; 2 R. S. 146, 48; Day v. West, 2 Edw. Ch. 592; Starbuck v. Starbuck, 62 App. Div. 437.

95 § 182, Real Prop. Law.

96 § 1759, Code Civ. Proc.; Wait v. Wait, 4 N. Y. 95; Price v. Price, 124 id. 589, 599; cf. Barrett v. Failing, III U. S. 523, 525; and as to

personalty, see Matter of Ensign, 103 N. Y. 284.

97 Voorhis v. Brintnall, 23 Hun, 264; revd., on other ground, 86 N. Y. 18.

98 Nichols v. Park, 78 App. Div. 94. 99 2 R. S. 146; Code Civ. Proc., § 1759.

1 Day v. West, 2 Edw. Ch. 592; Starbuck v. Starbuck, 62 App. Div. 437; cf. Smith v. Terry, 38 App. Div. 394, on effect of resumption of marital relations.

22 R. S. 687, § 9; Penal Code, $299; and see history of these laws, 124 N. Y. at p. 596.

3 Price v. Price, 124 N. Y. 589: Spies v. Spies, 16 Abb. Pr. (N. S.) 112; Rundle v. Van Inwegan, 9 Civ. Proc. 328.

upon her estate or property left in his hands by her. They continue But it forfeits all rights of the quondam husband

her sole estate.

in her estate.5

Tenants by Entireties. Where husband and wife hold as tenants by entireties, and are divorced a vinculo matrimonii, the tenancy is severed; each takes a proportionate share of the property as

tenant in common.

Effect of Divorce by Courts of Other States for Causes not Allowed Here. A divorce a vinculo matrimonii, granted to the husband by the courts of another State for a cause not regarded as adequate by the laws of this State, will not deprive the wife of her dower in this State. But if the decree is obtained for such cause at the suit and instance of the wife, it may operate as against herself to bar her dower.8

Effect of Foreign Divorce without Service or Appearance. A divorce rendered in another State against a resident of this State, where there was no personal service, and no personal appearance within the State rendering it, is void in this State.9

42 R. S. 146, § 46; 2 R. L. 199, § 6.

5 See above, "Husband's Misconduct."

6 Stetz v. Shreck, 128 N. Y. 263. 7 Van Cleaf v. Burns, 118 N. Y. 549, 133 id. 540; cf. Barrett v. Failing, 111 U. S. 523; Denick v. Denick, 92 Hun, 161; Campbell v. Campbell, 90 id. 233; Atherton v. Atherton, 181 U. S. 155.

8 Starbuck v. Starbuck, 173 N. Y. 503; Voke v. Platt, 48 Misc. Rep. 273.

9 Williams v. Williams, 130 N. Y. 193; Bell v. Bell, 4 App. Div. 527;

People v. Karlsioe, 1 id. 571, 30 Am. Law Review, 612; McGown v. McGown, 19 App. Div. 368; Bell v. Bell, 181 U. S. 175; Streitwolf v. Streitwolf, 181 U. S. 179; Andrews v. Andrews, 188 U. S. 14; Haddock v. Haddock, 201 U. S. 562; Lynde v. Lynde, 162 N. Y. 405; Winston v. Winston, 165 id. 553; cf. Hammond v. Hammond, 103 App. Div. 437; Ransom v. Ransom, 54 Misc. Rep. 410; Ackerman v. Ackerman, 123 App. Div. 750, 753; Edwards v. Edson, 119 id. 684; Post v. Post, 55 Misc. Rep. 538; Strauss v. Strauss, 122 App. Div. 729.

§ 197. When dower barred by jointure. Where an estate in real property is conveyed to a person and his intended wife, or to the intended wife alone, or to a person in trust for them or for the intended wife alone, for the purpose of creating a jointure for her, and with her assent, the jointure bars her right or claim of dower in all the lands of the husband. The assent of the wife to such a jointure is evidenced, if she be of full age, by her becoming a party to the conveyance by which it is settled; if she be a minor, by her joining with her father or guardian in that conveyance.

Formerly section 177, Real Property Law of 1896, chapter XLVI General Laws:

§ 177. When dower barred by jointure. Where an estate in real property is conveyed to a person and his intended wife, or to the intended wife alone, or to a person in trust for them or for the intended wife alone, for the purpose of creating a jointure for her, and with her assent, the jointure bars her right cr claim of dower in all the lands of the husband. The assent of the wife to such a jointure is evidenced, if she be of full age, by her becoming a party to the conveyance by which it is settled; if she be a minor, by her joining with her father or guardian in that conveyance.10 Section 177 was formerly 1 Revised Statutes, 741, sections 9, 10:

§ 9. Whenever an estate in lands shall be conveyed to a person and his intended wife, or to such intended wife alone, or to any person in trust for such person and his intended wife, or in trust for such wife alone, for the purpose of creating a jointure for such intended wife, and with her assent, such jointure shall be a bar to any right or claim of dower of such wife, in any lands of the husband.11

10. The assent of the wife to such jointure shall be evidenced, if she be of full age, by her becoming a party to the conveyance by which it shall be settled; if she be an infant, by her joining with her father or guardian in such conveyance. 1

12

Common Law. At common law, as no right could be barred till it accrued, and no right to an estate of freehold could be barred by a collateral satisfaction, it was impossible to bar dower by any assurance either before or during marriage.13 To avoid this consequence, estates were commonly conveyed to uses, a widow not being dowable of a use.14

Jointure. It was a common practice before the Statute of Uses (27 Henry VIII) to provide for the wife by a settlement or by an

10 Repealed by Real Prop. Law of 1909, 8 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

11 Repealed, chap. 547, Laws of 1896.

12 Repealed, chap. 547, Laws of 1896. 13 Cruise, Dig., tit. 7, chap. 1, § 1. 14 Atherly, Marriage Settlements, 501, and see Sugden's note to Gilbert on Uses (Lond. ed. of 1811), 321.

When the

estate held to the joint use of her self and husband. Statute of Uses fastened the legal estate to the use, the effect of such union would have been to endow the wife of all the husband's estate, leaving her also her separate provision, had the 6tl. section of that statute not taken this fact into consideration, and provided that where a "jointure" was made she should not claim or have title to dower.15 From this statute arose the modern “jointure." 18 But as the statute was in derogation of the common law it was construed strictly, and, as Lord Coke stated, to bar a wife's dower by a jointure five facts must concur: (1) The jointure must take effect immediately on the husband's death. (2) It must be an estate for her life or a greater estate. (3) It must be made to her and not in trust for her. (4) It must be in satisfaction of the whole dower and not of a part. (5) It must be averred to be in satisfaction of dower. It might be made either before or after marriage.17 In the construction of the Statute of Wills, courts of law regulated their decisions in reference to the widow's title to dower upon the validity of jointures. As to time of commencement, certainty, interest, etc., they have required the jointure to be as beneficial to the widow as her dower. If this object was effected, the jointure might be limited by any conveyance, though the statute expressly mentioned five forms: (1) To the husband and wife and to the heirs of the husband; (2) to the husband and wife and to the heirs of their two bodies; (3) to the husband and wife and to the heirs of the body of one of them; (4) to the husband and wife for lives; (5) to the husband and wife for the life of the wife.18 The intending wife's assent was not necessary to a legal jointure, if it corresponded with the requirements denoted.19 But if the settlement was made after marriage the jointure might be refused by the wife on the death of the husband, unless it was made by act of Parliament.20

"Jointure" in New York. The Statute of Uses being in force in the province of New York was adopted by the first State Constitution,21 and in 1787 it was revised among the English statutes extending here, and re-enacted as a statute of the State.22 The 6th and 9th sections of the English Statute of Uses were, however, in New York then placed in a separate "act concerning dower." 23