In re Ensign

• Citation: 8 N.E. 544,103 N.Y. 284
• Parties: In re ENSIGN.
• Decision Date: 05 October 1886
• Court: New York Court of Appeals

103 N.Y. 284

8 N.E. 544

In re ENSIGN.

Court of Appeals of New York.

October 5, 1886.

This was an appeal from a judgment of the supreme court in the Fifth department, affirming a decree of the surrogate of Erie county dismissing this proceeding, and confirming the probate of the will of Elisha W. Ensign, deceased.

Elisha W. Ensign, the testator, made his last will and testament on December 1, 1866. At the time of the execution of the will he was unmarried, and had no children, but subsequently, on May 24, 1867, he was married to the appellant, Jennie Ensign Martin, and had one child by her, which died within 24 hours. On December 13, 1875, the appellant obtained a decree of divorce, on the ground of her husband's adultery, dissolving the marriage, and freeing each party from the obligations thereof, and further ordering that it would be lawful for the appellant to marry again, but not for her husband. Testator died October 1, 1877, and letters testamentary of his will were granted to his brother Charles Ensign, who dying, Cornelia Hamilton, the respondent, was appointed administratrix with the will annexed of Elisha W. Ensign.

The appellant commenced proceedings to revoke the probate of the alleged last will and testament of her husband, and to set aside the appointment of the respondent as the administratrix of his estate. The respondent, while she substantially admitted the facts, pleaded the decree of divorce, and the release of her dower, (which defendant had executed subsequent to testator's decease,) as a bar to the maintenance of the proceedings by the appellant. The surrogate dismissed the appellant's petition upon the ground that she was not entitled to notice of the proceedings for the probate of the will, or the appointment of Cornelia Hamilton as administratrix, and that she was not and would not be entitled to any distributive share of his personal estate had he died intestate, and that she had shown no right or interest entitling her to have the decree of probate, or the proceedings for the appointment of Cornelia Hamilton as administratrix, opened or revoked.

It was argued, on behalf of the appellant, that, under the statutes of New York and the doctrine adopted by the courts, a woman obtaining a divorce from her husband on the ground of his adultery, upon his death becomes his widow notwithstanding such divorce, and as such is entitled to a distributive share of his personalty in case of his intestacy, and is a necessary party to all proceedings for the probate of any alleged will made by him, or the granting of letters of administration upon his estate.

Louis Marshall, for appellant.

S. S. Rogers, for respondent.

FINCH, J.

A statutory construction, unchallenged for more than half a century, is assailed on this appeal. That a divorced wife, however innocent, has no right to a distributive share in the personal estate of her divorced husband, upon his death intestate, has been conceded until a very recent period, but is now asserted to have been all the time a mistake which should be at last corrected. A single provision of the statute relating to divorce gives color to the construction sought. Where the decree is founded upon the misconduct of the wife, it is expressly provided that ‘she shall not be entitled to dower in her husband's real estate, nor any part thereof; nor to any distributive share in his personal estate.’ On the theory that this was a needed provision to bar the guilty wife of dower, it is argued that it was thought also a needed provision to bar distribution, and the inference is drawn that, without such prohibition, or where, by reason of the divorced wife's innocence, it could not apply, the legislature supposed she would be so entitled, and intended to leave her, when free from fault, in the possession of both rights to their full extent.

But it is quite evident that we have here an unnecessary and superfluous provision as it respects dower. In a previous part of the Revised Statutes (volume 1, § 8) it had already been declared that, in case of a divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. This provision was needed to cut off the inchoate dower of the wife in property of the husband acquired prior to the decree, and was useless beyond that, and so operative for that purpose only. The added provision of section 48 was therefore needless. It is conceded to have been a mere ‘repetition,’ having no excuse except that overcaution which is sometimes as dangerous as neglect. In the same statute there is a second instance of the same superfluous legislation. It is provided that the dissolution of the marriage contract shall not affect the legitimacy of the children. 3 Rev. St. (5th Ed.) p. 236, §§ 56, 57. In Wait v. Wait, 4 N. Y. 95, it was said of this provision: ‘No one, however, will pretend that such a provision, though for greater caution it may have been wise to adopt it, was in fact necessary,’ and the court admitted that this needless care bore, ‘to some extent,’ upon the prohibition of dower in section 48. There were thus concededly two instances of needless caution in the statutes under consideration, and others ought not to surprise us. Ascertaining that the clause relating to dower was useless, we may expect to find that equally true of the following one, relating to distribution. The revisers omitted it in their draught, but the legislature added it. At that time no right to distribution had ever been conceded to the divorced wife, but the law had been administered to the contrary; and, with the full knowledge of that fact in the mind of the legislature, it is difficult to conceive an intent to change the rule in so important a matter left to be evidenced merely by an indirect inference, and not affirmatively and expressly declared.

The rule as it then stood rested upon very clear and definite grounds. The statute of divorce began with a provision permitting a marriage to be annulled for specific reasons. In such case no marital rights could exist on either side, since the decree adjudged that a lawful marriage had never existed. But then came provisions for a dissolution of the marriage contract. In such case the contract is ended and terminated by the decree of the court. The relation of husband and wife, both actual and legal, is utterly destroyed, and no future rights can thereafter spring out of or arise from it. Existing rights, already vested, are not thereby forfeited, and are taken away only by special enactment as a punishment for wrong. But future rights, dependent upon the marital relation, and born of it, there can be none. Thus the wife's dower, at the date of the decree, is vested as an inchoate right, at least as against the husband, whether she be innocent or guilty, by the concurrence of marriage and seizin. It has fastened upon the land, and follows it as an incumbrance, and would be consummated upon the death of the husband, in either event, but for the express mandate of the statute, which forfeits it where the wife is the guilty party. But the wife, although blameless, acquires no dower right in lands conveyed to the husband after the divorce, because he was not seized during the coverture. Kade v. Lauber, 16 Abb. Pr. (N. S.) 288. The coverture is ended, and cannot serve to found a new right after its destruction. The existing inchoate right remains, because it has already accrued, has not been forfeited by guilt, and does not depend upon the continuance of the marriage relation, but, independent of that continuance, becomes consummated by the death of him who was the husband when it sprang into being. For the same reason,-that future rights, dependent for their origin upon the marriage relation, cannot arise after its dissolution, and which prevents the innocent wife from having dower in her husband's after-acquired lands,-it follows that she can have no distributive share in his personalty. At the date of the decree she has no existing right in his personal estate. That is his. No fraction...