EFFIE J. VAN BLARICUM, Respondent,
GEORGIANA H. LARSON, Individually and as Administratrix, etc., of ELIAS T. LARSON, Deceased, and Others, Appellants, Impleaded with ADAM MARKLINGER and Others, Defendants.
APPEAL by the defendants, Georgiana H. Larson, individually and as administratrix, etc., and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 6th day of February, 1911, overruling the said defendants' demurrer to the amended complaint.
George P. Decker, for the appellants.
William T. Plumb, for the respondent.
The action is for dower, and the question here is whether by obtaining a divorce in the State of Indiana, upon the grounds of desertion, failure to support and drunkenness on the part of her husband, as the laws of that State permit, plaintiff lost her right to claim dower in his real property situate in this State.
I think she did not. She was married in the city of Indianapolis, Ind., on or about the 26th day of November, 1874. On or about the 4th day of September, 1886, the judgment dissolving that marriage was rendered by the Circuit Court of Marion county, Ind. Her husband died on or about June 7, 1907, in the city of Rochester in this State. Before the marriage was dissolved the husband entered into the actual possession and continued to hold and occupy the lands in question, as owner in fee simple thereof, to the time of his death, as appears by the allegations of the complaint.
The plaintiff did not remarry after the divorce, so far as the record discloses. The complaint is silent upon that subject, and the question here arises upon a demurrer to the complaint, which was overruled. The appeal is taken from the interlocutory judgment entered upon that decision.
It is unnecessary to discuss the origin and development of dower. It was recognized in England at least as early as the thirteenth century, in the provisions of Magna Charta, and here by the colonial law as well as the statutes of the State. Since the enactment of the Revised Statutes the declared law has been that 'a widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage.' (Colonial Laws of 1683, chap. 1, passed October 30, 1683; Colonial Laws [Comp. Stat. Rev. Comm.], vol. 1, pp. 111, 114, 115; Laws of 1787, chap. 4; R. S. pt. 2, chap. 1, tit. 3 [1 R. S. 740], § 1; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 170; Real Prop. Law [[Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 190.) Nor is it necessary to refer to laws
and decisions of other States relating to dower as it exists at the present time. The question must be determined by the laws of this State, as the real property is situated here.
By the decisions of the courts of this State, dower is recognized as a vested right arising out of the marriage. It is inchoate until the death of the husband, but the inchoate right vests at the time of the marriage in lands of which the husband is then seized, and in such as are thereafter acquired by him during coverture at the time he becomes seized thereof, of which right the wife can only be divested by her own voluntary act, or by forfeiture as the law provides. ( Wait v. Wait, 4 N.Y. 95; Kursheedt v. Union Dime Savings Institution, 118 id. 358; Matter of Ensign, 37 Hun, 152; affd., 103 N.Y. 284; Van Cleaf v. Burns, 133 id. 540.) Judge HAIGHT, in the course of his opinion in the Ensign case, when the case was before the General Term of the Supreme Court, of which he was then a member, in commenting upon the decisions there referred to, says: 'These decisions are placed upon the ground that the inchoate right of dower becomes a vested interest as soon as the husband is seized; and that, although the divorce may dissolve and terminate the marriage, it does not take away a vested interest in real estate previously acquired.'
The point made by the appellants is, that the plaintiff cannot be a widow of the man who was not her husband at the time of his death, and, therefore, she is not entitled to dower. But that conclusion does not follow. As is said in Wait v. Wait (supra): 'Whether or not a woman, divorced from her hus band, upon his subsequent death, is to be called his widow, may furnish a curious question in philology, but can not, I think, be decisive of the plaintiff's rights. It is true, the Legislature, in declaring what estates are liable to dower, speak of the party entitled to dower as a widow. Possibly the term may not, in every instance, be the most appropriate, yet, as descriptive of the person intended, it is clearly sufficiently so. All ...