Marvin v. Marvin
| Citation | 13 N.W. 851,59 Iowa 699 |
| Parties | MARVIN v. MARVIN ET AL |
| Decision Date | 21 October 1882 |
| Court | United States State Supreme Court of Iowa |
Appeal from Polk Circuit Court.
IT appears from the averments of the petition that the plaintiff was married to Wm. Marvin in the State of Ohio in the year 1852, and in 1856 she obtained a divorce from him in that State on her petition, he being the party in fault. Wm Marvin died in the year 1880. At the time of the marriage and up to the time of his death he was the owner of 160 acres of land in Polk county in this State. The plaintiff claims that she is entitled to one third of said land in fee as the widow of the deceased. The defendants are the heirs at law of Wm Marvin. There was a demurrer to the petition which was sustained, and plaintiff appeals.
AFFIRMED.
Detrick & Snell, for appellant.
Smith & Morris, for appellees.
A copy of the decree of divorce is attached to the petition, from which it appears that the divorce was full and complete. The following language is found in the decree: "It is therefore adjudged that the marriage contract existing between the parties be, and the same is, hereby canceled, dissolved and held for naught, and the parties be freed from the obligations of the same." The law of this State must control the descent and distribution of property within the State, no matter where the claimants thereto may reside.
The divorce being absolute, the rights of the parties in property within this State must be determined by our laws.
By section 2440 of the Code, the estate of dower is abolished but one-third in value of all the real estate of the husband is to be set apart to the wife in fee simple if she survive him. It seems to us if there be no surviving wife, as in case of the dissolution of the marriage relation by a decree of divorce, there can be no distributive share set off. It is a pre-requisite to the right that there be a surviving wife. After a divorce either party may again marry. Suppose in this case the husband had again married, and died leaving his lawful wife surviving him, who would be entitled to the distributive share of the estate? Of course it would be the last wife. There cannot be two surviving wives. At common law "no woman can have dower in her husband's lands unless the coverture were continuing at the time of his death." An absolute divorce "puts an end to all rights resting upon the marriage and not actually vested." ...
To continue reading
Request your trial