Lot Rawlins, Appellant, v. Robert D. Buttel and Mary his wife, late Mary Smith, widow of William W. Smith, deceased, Respondents

Lot Rawlins, Appellant, v. Robert D. Buttel and Mary his wife, late Mary Smith, widow of William W. Smith, deceased, Respondents. A wife lived with an adulterer in a state of separation from her husband until his death, but he was profligate and intemperate and frequently inflicted personal violence upon her, and finally abandoned her several years before his death and lived in adultery with another woman. Held that she did not thereby forfeit her dower. A demandant in dower out of lands in the hands of a purchaser, is only entitled to the assignment of a third according to the value of the land at the time of the purShase, and not according to the enhanced value produced by improvements made at the expense of the purchaser upon them subsequent to the purchase. This case came up on appeal and objections taken in the nature of a bill of exceptions, from a decree of the Orphans’ Court of Sussex County, on the petition of Robert D. Buttel and Mary his wife, for the assignment of her dower out of certain lands formerly owned by William W. Smith, her late husband during their marriage, and then in the tenure and possession of Lot Rawlins, the appellant, who had since purchased them. The petition of the respondents set forth that the said Mary was formerly the wife of the said William W. Smith, deceased, and that he was seized in fee of the lands in question during their marriage, and that, whilst he was so seized of them and after their marriage, a judgment was recovered in the Superior Court of the County against Smith, on which the lands were sold by virtue of execution process to George W, Green, at public sale, who afterwards sold and conveyed them to Lot Rawlins, the appellant. To this petition the following pleas were entered in the Orphans’ Court. 1. That the said William W. Smith was never seized of any estate in the premises whereof the said Mary was entitled to be endowed. 2. That the said Mary eloped from her then husband, the said William W. Smith, in his lifetime and after their said marriage, and lived in adultery with the said Robert D. Buttel during the residue of the lifetime of the said Smith, and that the latter never became reconciled to her, or cohabited with her afterwards. 3. That valuable improvements had been erected thereon at great cost and expense to him by the said Rawlins, since the purchase and possession of the premises by him: on all of which the petitioners took issue in the Court below. On the trial of the case before the Orphans’ Cóurt the facts alleged in the second and third pleas were sustained by the proof adduced; but the evidence in reply on the second plea showed that Smith also, in his lifetime and after the marriage, had been guilty of adultery and cohabited with another woman, and by cruelty, neglect, and abandonment of his wife, had to a great degree constrained her to leave him and to seek support by her own exertions among strangers; for which reason the Court overruled that together with the other pleas, and decreed in favor of the petitioners, and ordered the assignment of dower according to the prayer of the petition. The exceptions taken to the decree and order for the assignment of the dower on the appeal were, 1. Because* the Court below had disallowed the plea of improvements erected on the premises by Rawlins, at an expense proved of $600, since his purchase of them, and ordered the assignment of one entire third part thereof, without reference to the improved value of the premises by reason of that expenditure. 2. Because the Court below admitted evidence of acts of adultery on the part of the said William W. Smith, after as well as before the elopement of the said -Mary from him, and without any replication of said facts. 3. Because the said Court decreed the one-third part of the said lands and premises to be assigned to the said Mary Buttel for the term of her natural life, instead of to the said Robert X). Buttel, in right of the said Mary Buttel, for the term of her life. E. D. Cullen, for appellant: It is provided in the dower act, Rev. Code, 290, if a wife willingly leaves her husband and elopes with an adulterer, she forfeits her dower, with or without any fault or misconduct on the part of her husband ; for no misconduct of his can excuse her for willingly leaving him and going with an adulterer. 2 Bac. Abr. 384; Park. on Dower, 11 Law Libr. 102; 19 Eng. C. L. R. 94; 6 T. R. 603; Crabb on Real Prop., sec. 1189; 4 Esp. Rep. 237; Bishop on Mar. & Div., sec. 243. So obscenity* or indecency on the part of the husband can excuse a wife for committing adultery. Bish. on Mar. & Div., secs. 422, 423. If a purchaser improve, the dower shall be of only one-third of the land according to its value at the time of the purchase; but if the heir improve, the widow shall have one-third of the improvements, because the heir makes them after the widow’s title of dower has completely accrued. 2 Bac. Abr. 368; 3 Mass. Rep. 347; Green v. Tennent, 2 Harr. Rep. 336. C. S. Layton, for respondents: This Court will not reverse the decree below entirely, even if it should be of opinion that it is erroneous on the last ground taken; but will enter such a decree on the appeal, as the Court below in its judgment should have rendered. On the main question, our statute has gone far beyond the statute of Westminster and the authorities cited on the other side. Adultery was not a bar to dower at common law, and, in this State, the defence to the claim must depend upon the provisions of our own statute on the subject, and the only provision which it contains in relation to it, is as follows: “If a wife willingly leave her husband, and go with an adulterer, or willingly live in adultery in a state of separation from her husband, not occasioned by his fault, in either case, unless her husband be reconciled to her, and suffer her to dwell with him, she shall forfeit her dower and all demands, as his widow, upon his real or personal estate, and any estate, charge, or benefit settled upon her, or in trust for her in lieu of dower.” It is manifest, on reading this, that the present case falls under the second and not under the first branch of the provision. For the wife in this case did not willingly leave her husband and go with an adulterer,—that is to say, she did not elope and live with an adulterer; but the proof is that he left her after taking her to Philadelphia, abandoned her rto her own exertions for a support, and to the lures and temptations of a populous city, and afterwards lived himself in adultery with another woman. It is also in proof that he was guilty of adultery, and frequently inflicted personal and cruel violence upon her before they went to the city. He was profligate and intemperate in the highest degree, and abandoned her to the world, and for several years before his death neither sought her society, or made any effort to maintain her. It was in this state of abandonment, and long after he left her in Philadelphia, that she Appears to have made the acquaintance of her present husband, and formed, it seems, an illicit connection with him. Taking the evidence in its strongest aspect, therefore, against her, it amounts to nothing more than a case of a wife willingly living in adultery, in a state of separation from her husband, occasioned, however, by his own fault and gross misconduct, and which works, of course, under the operation of our statute, no forfeiture of dower. And this was the view which the Court below took of it. [MAJORITY — The Court] The Court affirmed the decree below awarding the dower; but reversed and annulled the order for the assignment of it, on the ground that it should have been for one-third of the lands and premises according to their condition and value at the time of the purchase of them by the appellant; because the respondents were not entitled, in the assignment of the dower, to any benefit from the improvements, or the enhanced value of the land, erected or produced at the cost and expense of the appellant subsequent to his purchase, of it.