Littlefield v. Paul

• Decision Date: 07 June 1879
• Citation: 69 Me. 527
• Court: Maine Supreme Court
• Parties: MARY E. LITTLEFIELD v. ELIZABETH PAUL & another.

69 Me. 527

MARY E. LITTLEFIELD v. ELIZABETH PAUL & another.

Supreme Judicial Court of Maine.

June 7, 1879

ON FACTS AGREED.

ACTION OF DOWER. Marriage, seizin, death of husband and demand of dower admitted. Also, that demandant was married to Rosewell M. Littlefield, of Wells, in York county, deceased, October 30, 1837, and cohabited with him in this state several years that she afterwards left the house of said Rosewell and went to Massachusetts, and there lived in adultery, although having gone through the forms of marriage, with another man by whom she had several children, and never returned to her husband; that said Rosewell also lived in adultery with two other women, with whom he had gone through the forms of marriage, and had children by them; that said Rosewell became seized of all the real estate in which dower is demanded in this action under the will of one Isabella Littlefield, with whom he lived in adultery, which will was dated October 15 1853, and subsequently proved in probate court, except thirty-five square rods, which he purchased of Samuel Weeks by deed of April 22, 1851; that no divorce was ever decreed between the demandant and said Rosewell; that said Rosewell conveyed to the tenant February 23, 1863. Judgment to be entered by the full court, as the law may require. Plaintiff to carry the case to the law court.

Charles C. Hobbs, for the plaintiff.

George C. Yeaton, for the defendants, among other things, said:

This action presents the single question whether elopement and adultery are a bar of dower.

Statute of 13 Edwd. I., c. 34, provided that a wife, voluntarily leaving the husband and living in adultery, was thereby barred of her dower. " The best construction of which statute," says Willes, J., in Woodard v. Dowse, 10 C. B. (N. S.) 100 E. C. L. 722, 732, " seems to be that the leaving sponte is not of the essence of the offense which leads to the forfeiture. It is enough if, having left her husband's house, the woman afterwards commits adultery."

That the facts bring the case at bar fully within the provisions of this statute cannot be questioned. Is this statute law in Maine? The question is res integra. It should be so held.

I. From the nature of the dower itself.

1 Wash R. Prop. 146, defines dower as the " provision which the law makes for a widow, out of the lands or tenements of the husband, for her support and the nurture of her children." And substantially similar definitions are given by all the text writers. Vide passim, Bouv. Dic. Tit. Dow. Schoul. Dom. Rel. 183.2 Black. Com. 130; which latter authority still more pointedly inserts before children the word " younger."

To assert that the law of any civilized society could ever contemplate appropriating a portion from the estate of a man, wronged as only a wife could wrong a man, for the support of an adulteress, and the nurture of the very children (the word " younger" imports it) whose guilty parents, while procreating them, the same law suffers the outraged husband to slay with comparative impunity, is a proposition so monstrous that it can scarcely stand without the support of an absolutely mandatory statute. No court could to-day arrive at such a conclusion otherwise.

II. Upon authority.

The Stat. 13 Edwd. I., c. 34, has been in terms re-enacted in some states, and declared to be the common law in others. 1 Wash. R. Prop. 196. Note to Woodward v. Dowse, 100 E. C. L. 722, 733.

In 1 Greenl. Cruise R. Prop. 156, Mr. Greenleaf says, in a note under the text referring to this Stat.: " Such is understood to be the common law of the United States; " again, 176, n., " It is believed to be held as the common law of this country in all the states originally settled by English colonists or their descendants," citing 4 Dane's Abr. 672, 676. 4 Kent. Com. 53. Coggswell v. Tebbetts, 3 N.H. 41.

Kent (loc. cit.) says: " There is so much justice in it that an adulterous elopement is probably a plea in bar of dower, in all the states of the Union, which protect and enforce the right of dower."

But, after a tolerably diligent search, we are unable to find any state barbarous enough to deny that this statute was the common law in that state, except only in those states which have held that no English statute, unless expressly adopted, was law, and those states where the whole subject of dower was expressly provided for in their own statutes.

But Lakin v. Lakin, 2 Allen 45, holds the statute in question not law in Massachusetts.

Mr. J. Chapman in that case, while admitting that " the authorities seem to indicate that the provisions of this statute have been in force" in Massachusetts, claims that " the question has never been thoroughly discussed" by the Massachusetts court, and distinctly places the decision upon three grounds:

(1.) Express statutory provision, c. 76, § 32, that " she shall not be entitled to dower in any other case of divorce" than divorces against the husband for his fault.

(2.) At common law adultery " was not a cause of divorce," so that it could not be made a bar by means of a divorce obtained by the husband.

(3.) By failing to apply for his divorce, which he might have had, the husband had preferred to bury the scandal, and third parties should not be suffered to first raise the question.

As to ground (1), it is to be observed that our statutes, while providing dower for the wife in case of divorce from husband, (R. S., c. 60, § 7,) and for husband's interest in the wife's estate, when divorced from her (R. S., c. 60, § 8), not only contain no provision denying her dower in such case, but are wholly silent as to the effect of a divorce for her fault upon her dower.

As to ground (2), with great deference, it is suggested that this is not an accurate statement of the common law, for it was only in 1602 that adultery ceased in the courts of England to be ground for either a divorce a vinculo, or a divorce, though in terms a mensa et thoro, yet consequent upon which followed the right to remarry; and certainly both wives (if the husband had two) could not have dower at his death in such cases. Vide Art. 6, 1 Law Review (English) 353, 360. 3 Salk. 138. Glanv. 44. Bract. 92. 18 Edwd. IV., 45. Macqueen, H. L. & P. C. 470, 473.

Hence the Stat. 13 Edwd. I., c. 34, having been passed in 1285, was in force more than three hundred years, during which a man could have barred dower by availing himself of existing law in the courts; and when, in 1602, ecclesiastical aggression robbed the courts of their jurisdiction to grant divorces a vinculo, or with equivalent privileges, immediately grew up the parliamentary practice of granting them, which continued down to 1858. So that the statement that " her mere adultery could not be made a bar by means of a divorce" must be declared inaccurate.

As to ground (3), in the case at bar, the husband could not have had a divorce, for his own adultery was a bar; R. S., c. 60, § 18, has been law since 1821, c. 71, § 4, so that, whatever force the reason may have abstractly, it has no application here.

In New York the statutes expressly bar the wife of dower only upon a conviction of adultery." Pitts v. Pitts, 52 N.Y. 593. Schiffen v. Pruden, 64 N.Y. 47.

In Pennsylvania also the statutes expressly control. Reed v. Elder, 62 Penn. St. 308.

In Rhode Island it is held that this statute was never introduced. Bryan & wife v. Batchelder, 6 R. I. 543. But in that state, it seems, no English statute is held to be law, unless expressly re-enacted there, and in this case the court declared: " It may at first seem singular that our law should be so regardless of what seems so just and reasonable a ground of forfeiture."

In New Hampshire the statute was admitted to apply to that state in Coggswell v. Tebbetts, 3 N.H. 41.

In Cochrane v. Libby, 18 Me. 39, at nisi prius, the jury were instructed that this statute was " the law in this state," and the opinion of the full court impliedly recognized the soundness of the instruction.

III. Public policy forbids that such a woman should be enabled to deplete a dead man's estate, to the detriment of innocent heirs-at-law; as no man would incline to accumulate property if it were subject to such depredation.

Adoption of English statutes (generally). Sackett v. Sackett, 8 Pick. 309, 316. Going v. Emery, 16 Pick. 107, 115. Com. v. Chapman, 13 Met. 68.

All existing at date of settlement of the country, not unsuited to the character of our institutions.

Con. Maine, Art. 10, § 3: " All laws now in force. . remain until altered or repealed by legislation." Colley v. Merrill, 6 Me. 50, 55.

No repeal by implication " if the implication does not necessarily follow from the language used." Pratt v. A. & St. L. R. R. Co. 42 Me. 579, 587.

LIBBEY J.

The defendants claim that by the statute of Westminster 2, 13 Edward I., c. 34, the plaintiff is barred of her dower. The fourth clause of that statute reads as follows: " And if a wife willingly leave her husband and go away, and continue with her adulterer, she shall be barred forever of action to demand her dower that she ought to have of her husband's lands, if she be convict thereupon, except that her husband willingly, and without coercion of the church, reconcile her and suffer her to dwell with him, in which case she shall be restored to her action."

If this statute is a part of the common law of this state, as construed by the English courts, the plaintiff is barred of her action. So far as we are aware, in this state it has been invoked as a defense to an action of dower but once. Cochrane v. Libby, 18 Me. 39. In that case the question whether it was in force in this state was not discussed by the counsel or the court. Weston, C. J., says " The second marriage of...