Tatro v. Tatro

• Decision Date: 10 November 1885
• Parties: TATRO v. TATRO.
• Court: Nebraska Supreme Court

18 Neb. 395

25 N.W. 571

TATRO

v.TATRO.

Supreme Court of Nebraska.

Filed November 10, 1885.

Appeal from Fillmore county.

John P. Maule, for plaintiff.

J. W. Eller and F. J. Foss, for defendant.

MAXWELL, J.

This action was brought by the plaintiff against the defendant in the district court of Fillmore county to obtain a divorce upon the grounds of cruelty and failure to provide a suitable maintenance. The cause was referred to a referee, who made a report in favor of the plaintiff. The report was confirmed, and a decree of divorce rendered, with permanent alimony to the amount of $2,000, to be paid by installments. The defendant appealed to this court; the plaintiff also appealed from the decree for alimony. Before the hearing the defendant died, and the cause, so far as it relates to alimony, was revived.

It is claimed on behalf of the plaintiff that the decree for alimony is not for a sufficient amount, and also that she is entitled to dower in the estate of the defendant; while on behalf of the defendant's estate it is alleged that the amount of alimony is excessive, and if, in addition, the plaintiff is entitled to dower in the estate, it will be impossible to raise the amount without her signature to the deeds, the property being exclusively real estate. A considerable amount of temporary alimony was allowed the plaintiff and her attorneys during the pendency of the action; while the costs and expenses of the trial amount to a very large sum. The defendant's property consists entirely of real estate, which, as is well known, is liable to fluctuate in value according as the demand may be brisk or dull. He is shown to have been in debt to a considerable amount, and, after deducting the debts, the alimony allowed is about equal to one-third the value of the estate, and therefore the court did not err in awarding the same. But it is claimed that, notwithstanding the decree of divorce, the plaintiff is still entitled, under the statute, to dower in the real estate of the defendant, and this is the principal question in the case. This is claimed under section 23, c. 25, Comp. St. 1885, which is as follows: “When the marriage shall be dissolved by the husband being sentenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery committed by the husband, or misconduct or drunkenness of the husband, or on account of his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to dower in his lands in the same manner as if he were dead; but she shall not be entitled to dower in any other case of divorce.”

Under a somewhat similar statute the court of appeals of New York held, in Wait v. Wait, 4 N. Y. 95, that a divorce for adultery was prospective in its operation, and had no other effect on the marriage relation than such as was declared by statute, and hence that such divorce did not deprive the wife of her right of dower. Burr v. Burr, 10 Paige, 25, 26. Under the New York statute, however, the defendant found guilty of adultery was prohibited from marrying again during the life-time of the plaintiff. 2 Rev. St. 146, § 49. This rule seems to have been extended by the courts to other cases of misconduct of the husband. In this state an absolute decree of divorce, if unappealed from, is final as to the rights of the parties. Our statute neither authorizes nor sanctions the practice of divorcing the plaintiff and denying a divorce to the defendant. A decree a vinculo matrimonii dissolves the marriage and puts an end to the relation of husband and wife, and, as a necessary consequence, to the right of dower. Dower in this state is only allowed to the widow who was the wife of a person dying at the time of his death. Kent says that “the next species of life-estate created by the act of the law is dower. It exists where a man is seized of an estate of inheritance and dies in the life-time of his wife.” 4 Kent, Comm. 35; Co. Litt. 30 a; 2 Bl. Comm. 130. The effect of a divorce is to put an end to all rights of property depending upon the marriage and not actually vested, such as the right of dower in the wife, etc. Rice v. Lumley, 10 Ohio St. 596;Billan v. Hercklebrath, 23 Ind. 71;Given v. Marr, 27 Me. 212; Barbour v. Barbour, 46 Me. 9; Whitsell v. Mills, 6 Ind. 229;Burdick v. Briggs, 11 Wis. 126;Miltimore v. Miltimore, 40 Pa. St. 151; Stilphen v. Houdlette, 60 Me. 447. It is presumed that the court, in rendering a decree of divorce, will award alimony in proportion to the property of the defendant. This must include all claims of the plaintiff upon the property of the defendant. If either party is dissatisfied with the decree, the case may be brought into this court for review; but the final decree is conclusive upon the rights of the parties, and bars the right of either party to any further claim upon the property of the other. The most that can be claimed for our statute is that upon the decree of divorce being rendered for any of the causes above named the court may, in the nature of alimony, award the plaintiff dower in the lands of which her husband was seized at the date of the decree. In such case, however, the right to dower is not contingent upon the death of the husband, but accrues at once upon the rendition of the decree. Thus, in Smith v. Smith, 13 Mass. 230, upon a divorce a vinculo for the...