McAlister v. Novenger

• Decision Date: 31 October 1873
• Parties: MARY A. MCALISTER, Appellant, v. SARAH NOVENGER, et al, Respondents.
• Court: Missouri Supreme Court

54 Mo. 251

MARY A. MCALISTER, Appellant,

v.SARAH NOVENGER, et al, Respondents.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Adair Circuit Court.

Barrow & Millan, for Appellant.

I. If plaintiff is barred of her dower at all, it is by or under the 20th section of the Dower Act, (Wagn. Stat., 542,) which is the same as the statute of Westminister. (13 Edw. I., 1 C., 34.) By this statute adultery alone would not bar dower. There must also be a voluntary separation by the wife from the husband; she must leave him sponte. If the husband go away and leave his wife, then even continued adultery after such separation will not bar the wife of her dower. (Elder vs. Reel, 62 Penn. St., 308, and cases cited; 1 Bish., Mar. & Div., § 628; Graham vs. Law, 6 Up. Can., 310; Coggswell vs. Tibbetts, 3 N. H., 41; Walters vs. Jordan, 13 Ired., 361; 2 Scribner Dow., 501, § 7.)

II. The case of Stegall vs. Stegall, 2 Brock, [Va.] 256, is not applicable. There the wife refused to go and live with her husband because she had heard he had another wife.

DeFrance & Halliburton, for Respondents.

I. The going away of a woman is not the gist of the cause of the forfeiture, but the living in adultery. (2 Scribner Dow., 498, § 3; 500, § 6.)

II. All the circumstances mentioned in the statute need not concur in form, provided they do so in substance. (2 Scribner Dow., 500, § 6 and n. 3.)

III. Where a woman and her husband voluntarily separate, or she leaves his house on account of his cruelty, or against her consent, or she refuses to go with him to his place of abode, and while living apart she commit adultery, she will forfeit her dower, unless there is a subsequent reconciliation. (1 Wash. Real Prop., [2 Ed.] 196, § 4; 197, § 4; Hethrington vs. Graham, 6 Bing., 135; Reel vs. Elder, 62 Penn. St., 308; 2 Scribner Dow., 500, § 6; 503-4 §§ 10, 11, 12; Woodward vs. Dowse, 10 C. B., [N. S.] 722; Stegall vs. Stegall, 2 Brock. [Va.], 256.)

IV. The case of Reel vs. Elder, supra, relied on by the appellant, is very dissimilar from the one before the court. There the husband slipped away from his wife without her knowledge; here she refused to go with her husband. Even that case has only one case to support it; all the other cases are against it.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff instituted her suit in the Adair County Circuit Court asking for an assignment of dower in the estate of her deceased husband. The facts as shown in the bill of exceptions are in brief these: That plaintiff and John McAlister were married in the State of Pennsylvania in the year 1836 or 1837, and that while in that State they resided with plaintiff's step-father; that sometime after the marriage John McAlister started for Missouri to look out for a home and purchase land; he requested the plaintiff and her step-father to accompany him, but they declined on the ground that they might not be satisfied with the place after they got there, and it was finally determined that he should go alone, and, if he succeeded in purchasing land, he should either come back after them or send for them. The evidence is not precise as to the time, but it seems that some three or four years after the husband's departure the plaintiff committed adultery and had a child born, whose father was one Sawyer, and a few years after the birth of this child she intermarried with one Rommell, by whom she has had a large family of children, and still continues to live with him as his wife. It appears further, that, when plaintiff first committed adultery, and when she contracted her second marriage, she was aware that her first husband, McAlister, was living, and knew where he resided. The land, in which dower is now claimed, was purchased by McAlister and owned by him at his death. The court below held, that plaintiff was not entitled to dower, and she has appealed the case to this court.

The question presented for determination involves the proper construction of the 20th section of the act concerning Dower. (1 Wagn. Stat., 542.)

That section is as follows: “If a wife voluntarily leave her husband and go away and continue with an adulterer, or after being ravished consent to the ravisher, she shall be forever barred from having her jointure or dower, unless her husband be voluntarily reconciled to her, and suffer her to dwell with him.” This section is in substance the same as the statute of 13 Edward I. Ch. 34, commonly called the statute of Westminister second, which enacts, that if a wife elope from her husband and continue with an adulterer, she shall be barred of her dower, unless her husband willingly and without coercion of the church reconcile her and suffer her to dwell with him.

In some of the States this English statute is declared to be in force, and in nearly all the others they have similar or like provisions.

At common law adultery was no bar to dower, and by the statute something more must occur to produce that effect. The construction universally put upon the statute is, that an elopement, a voluntary separation or departure by the wife from her husband, as well as adultery, is necessary to make the bar complete. (Co. Litt., 32, 6; 2 Inst., 435.)

There must be an actual separation between the parties, but whether the wife leave her husband with or without his consent, and live in adultery, she will nevertheless forfeit her dower, if there be no subsequent reconciliation between them, (2 Scrib. Dow., 499, § 5 and note.)

The counsel for the appellant have cited Reel vs. Elder, (62 Penn. St., 308,) and rely upon it as the strongest case in their favor. In that case it appears, that John Elder and Amelia Dehart were married, and the difference in their social condition made the marriage an unhappy one. About two weeks after the marriage Elder went away clandestinely saying, that he was going to leave his wife and that he did not want her to know any thing about it. He was absent for many years, and afterwards procured a divorce in the domicile where he removed to. This divorce, was, however, declared to be a nullity. During the absence of Elder his wife, remaining in Pennsylvania, committed adultery. After that he returned, met his wife, declared the divorce a nullity, and lived with her for several months. The parties were again separated, and John lived with another woman, and Amelia, the wife, with another man. They were subsequently reconciled, and lived together till John died, and had children born of this latter union.

Upon the case as thus made out, the court decided that the wife was entitled to dower. It is true the court did not base the decision on the ground of final reconciliation, which, it was said, could only become important if the dower had been barred by force of the statute, but it was not considered that the case came within the statute. The language of the court was: “Now there was not only no evidence, that the plaintiff had willingly left her husband, but the proof was direct, positive and uncontradicted, that he had deserted her. He did not request her to go with him, nor even inform her of his intention. He left her clandestinely on the false pretense that he was going a gunning, and was absent for several years.”

In Hethrington vs. Graham, (6 Bing., 135,) the statute received a full consideration, and it was there held, that if a woman leave her husband with her own free will, or the parties have separated by mutual consent, and the wife afterwards lives in adultery, that...