The provocation which she had to depart will not aid her. The words of the statute Westm. 2, are, "if a wife willingly leave her husband, and go away, and continue," etc. Lord Coke, in his commentary, says: "Albeit the words of this branch be in the conjunctive, yet if the woman be taken away not sponte, but against her will, but after consent, and remain with the adulterer without being reconciled, etc., she shall lose her dower; for the cause of the bar of her dower is, not the manner of her going away, but the remaining with the adulterer in avowtry, without reconciliation; "and so if she go away with her husband's consent and agreement with another man, and afterwards commit adultery, she shall be barred. And Coke cites what he calls "a rare and strange case," from the Parliament roll, 30 Ed. 1, which was only seventeen years after the statute was passed. In that case, John de Camoys, by deed, delivered and committed his wife Margaret to the Lord William Paynel, and did grant and confirm that the said Margaret should be and remain with said Lord William according to his will. After the death of her husband, the wife demanded her dower, but it was adjudged against her, on the ground of the adultery with Paynel. 2 Inst. 435; Dyer, 107 a., note; Bacon's Abr. Dower F. In Coot
v. Berty, 12 Mod. 232, in dower, the defendant pleaded the elopement of the wife; she replied that the husband had bargained and sold her to the adulterer; but the replication was held bad. In the recent case of Hethrigton v. Graham, 6 Bing. 135, it was held that adultery was a bar, although committed after the husband and wife had separated by mutual consent. Tindal, Ch. J., concludes a review of the authorities, by saying that they "place the forfeiture of the dower upon the fact of a living from the husband in adultery, and not upon the circumstances of the elopement." I do not find that this doctrine has been departed from.
Although the plaintiff had good cause for leaving her husband, yet the subsequent adultery, had the husband died while the act of 1787 remained in force, would clearly have barred this action for dower. The effect of the present statute upon her claim remains to be considered.
In 1830, the act of 1787 was repealed and after declaring that a widow shall be entitled to dower, a new provision was made in the following words: "In case of divorce dissolving the marriage contract, for the misconduct of the wife, she shall not be endowed." 1 R. S. 741, § 8.1 Under this statute the adultery is not enough. It must be followed by a divorce dissolving the marriage contract. This has brought us back to the common law, as it stood before the statute of 13 Ed. I., for we have already seen, adultery did not work a forfeiture at the common law. And as to a divorce a vinculo, that always put an end to the claim of dower; for although it was not necessary that the seisin of the husband should continue during the coverture, it was necessary that the marriage should continue until the death of the husband. Co. Litt.32, a.; 2 Bl. Comm. 130; 2 Kent's Comm. 52, c, p. 54. The statute bar for the mere act of adultery, which had existed for more than five centuries and a half, was blotted out by the repeal of the act of 1787 - the British statutes not being in force in this State; and the 8th section of the act of 1830 has added nothing to the law as it would have stood had the Legislature stopped with a simple repeal of the act of 1787.
How, then, stands this case? Prior to 1830, the plaintiff was under a statute disability, and had her husband died at that time she could not have taken her dower. But seven years before the death of her husband, the disability was removed by the repeal of the statute -there was no longer any bar, and I am unable to discover any valid objection to her claim. She is able to establish all the elements of a perfect title to dower, to wit, a lawful marriage, and the seisin and death of the husband. The objection urged against her is, there was a time when if your husband had died, you would not have been entitled to dower. To this she may well answer, true it is, there was such a time, but it has gone by and when my husband died, there was no legal bar in my way. The law says, a widow shall be endowed, unless there has been a divorce for her misconduct; there has been no such divorce in my case, and I am a widow and claim my right. Her arguments rest, I think, on a solid foundation.
1 1. N. Y. R. P. L., §§ [76 and 186; and see § 1760 Code Civ. Pro. - Ed.
It is not very important whether we regard the late revision of the statutes as working a simple repeal of the act of 1787, and thus reviving the ancient common law; or whether we regard it as a repeal, accompanied by a new provision; for in either case, the mere fact of living in adultery ceased to be a bar to dower in 1830, and the husband did not die until 1837. There had been no divorce, and there was at that time no obstacle in the way of the plaintiff's claim.
The defendant's answer to this view of the case is, that the plaintiff had a right, interest or estate in the land in the lifetime of the husband, which was forfeited by the adultery prior to 1830; and we are referred to the saving clauses in the repealing statute. 2 R. S. 779, §§ 5, 6. The argument assumes what cannot be maintained. While the husband lives, the wife has no right, interest or estate in the land. She has nothing but a mere capacity to take, in the event of her surviving her husband - she is dowable. It is not until she becomes a widow, that she is entitled to dower. It was the widow, not the wife, who was provided for by magna charta. 9 Hen. III., ch. 7; 2 Inst. 16. And so it has always been in our statutes concerning dower. 1 R. L. 56, ch. 4;1 R. S. 740. The legal assurance that the wife shall have dower if she becomes a widow, is sometimes spoken of, through the imperfection of language, as though it were a present estate or interest in the land; but, in truth, it is not so; she has no right, until after the death of her husband. In Lampet's Case, 10 Co. 49, Lord Coke, although he was endeavoring to prove that the wife might be barred by a fine, was forced to admit that, "notwithstanding her husband is seised in fee, and the marriage is lawful yet she has but a possibility of dower till the death of her husband." * * *