Summary
explaining that "[d]uring the lifetime of both spouses, dower is a contingent inchoate right and becomes vested in the surviving spouse only upon the death of the other spouse."
Summary of this case from Egnot v. Triad Hunter LLCOpinion
No. 32999
Decided December 17, 1952.
Dower — A statutory right — Subject to modification and qualification while inchoate — Amendment or repeal of statute — Effect on pending action — Section 26, General Code, inapplicable, when — Divorce and alimony action involving inchoate right of dower.
1. Dower is a creature of statute, is founded on reasons of public policy, and is subject, while it remains inchoate, to such modifications and qualifications as legislative authority, for like reasons of public policy, may see proper to impose.
2. Section 26, General Code, which precludes a pending action from being affected by an amendment to or the repeal of a statute, has no application to a pending divorce or alimony action, where the statute involved relates to inchoate right of dower.
APPEAL from the Court of Appeals for Mahoning county.
On February 6, 1907, the plaintiff, Alma L. Goodman, was married to Roy A. Gerstle at Youngstown, Ohio. On November 13, 1918, a decree of divorce was granted to the plaintiff from Gerstle. The decree awarded her alimony in the sum of $3,000 per year, which was made a lien upon lots Nos. 37 and 38 then owned by Gerstle in the city of Youngstown, and provided that she was "not by this decree of divorce and alimony barred of her right and interest of dower in any of the real estate owned by the defendant at the date of this decree."
Thereafter, plaintiff married Bertram J. Goodman, and Gerstle married Ruth R. O'Brisky, who survived him. Upon remarriage of the plaintiff in 1924, Gerstle moved for a modification of the alimony award and the same was vacated. He died on March 20, 1947, and at the time of his death was seized in fee simple of the real estate above described.
In 1918, when such divorce decree was entered, the pertinent part of Section 8606, General Code, read as follows:
"A widow or widower who has not relinguished [relinquished] or been barred of it, shall be endowed of an estate for life in one-third of all the real property of which the deceased consort was seized as an estate of inheritance at any time during the marriage, in one-third of all the real property of which the deceased consort, at decease, held the fee simple in reversion or remainder * * *."
Effective January 1, 1932, the above-quoted section was repealed, and Section 10502-1, General Code, was enacted, which, as amended September 2, 1935, and in effect at the death of decedent, read in part as follows:
"A spouse who has not relinquished or been barred of it shall be endowed of an estate for life in one-third of all the real property of which the consort was seized as an estate of inheritance at any time during the marriage, but all such dower interest shall terminate and be barred upon the death of the consort except:
"(a) To the extent that any such real property at any time during the marriage was conveyed by the deceased consort, the surviving spouse not having relinquished or been barred of dower therein * * *
"* * *
"In lieu of such dower interest as terminates and is barred pursuant to the provisions of this section, a surviving spouse shall be entitled to the distributive share provided by the statute of descent and distribution.
"All dower interest shall terminate and be barred upon the granting of an absolute divorce in favor of or against such spouse by a court of competent jurisdiction within or without this state."
Effective January 1, 1932, Section 11991, General Code, was amended to read as follows:
"Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or instalments, as the court deems equitable."
Section 11986, General Code, was amended January 1, 1932, by adding thereto the following sentence:
"Upon the granting of a divorce, whether on a petition or cross-petition, by force of such judgment each party shall be barred of all right of dower in real estate situated within this state of which the other was seized at any time during coverture."
On or about June 14, 1947, plaintiff, through her counsel, advised Ruth R. Gerstle and Myron O'Brisky, executors and trustees under the will of decedent, of her claimed interest in the estate of the decedent and on or about July 31, 1947, made a written demand upon such executors and trustees for an assignment of a dower interest in said lots Nos. 37 and 38, under the applicable statutes as they existed prior to January 1, 1932, or that in lieu thereof she be assigned a distributive share in the estate of the decedent. Neither at the time of the divorce nor at any time subsequent thereto did the plaintiff join in any deed, mortgage or other conveyance purporting to release any right of dower which she might have in said real estate.
This action was brought by plaintiff against the executors and trustees and others for a declaratory judgment that she has certain dower rights in lands of which decedent was seized in fee simple at the time of the divorce and at the time of his death.
References herein to the divorce and alimony statutes relate to such statutes as they were prior to the recodification of the same in 1951.
The cause was submitted and tried in the Common Pleas Court upon the pleadings and a stipulation of facts, which court found in favor of the defendants.
Plaintiff thereupon prosecuted her appeal on questions of law to the Court of Appeals, wherein the stipulation of facts was submitted and accepted as a bill of exceptions, and that court affirmed the judgment of the Common Pleas Court.
The plaintiff now brings the cause to this court on appeal, a motion to certify the record having been allowed.
Messrs. Harrington, Huxley Smith and Mr. Donald J. Lynn, for appellant.
Messrs. Manchester, Bennett, Powers Ullman, Mr. John F. Elsaesser and Mr. Roy J. Stone, for appellees.
The question here presented is: Did the amendments of Sections 11986 and 11991, General Code, and the enactment of Section 10502-1, General Code, upon the repeal of Section 8606, General Code, all effective January 1, 1932, bar plaintiff of her inchoate right of dower under former Section 11991, General Code, in the lands of which decedent was seized on November 13, 1918, and of which he continued to be seized until his death on March 20, 1947?
It is the contention of the plaintiff that her inchoate right of dower at the time of the divorce was not barred by the subsequent amendment of Sections 11986 and 11991, General Code, and the enactment of Section 10502-1, General Code, inasmuch as such amendments and enactment were prospective in operation and applied only to divorces granted on and after January 1, 1932; that, upon the granting to her of the divorce, such inchoate dower right was preserved to her by virtue of the statutes then in force and effect, and particularly Section 11991, which provided that if a wife survived her husband, she was entitled to dower in his real estate which was not allowed to her as alimony, of which he was seized during coverture and in which she had not relinquished dower; that the effect of Section 11991, General Code, was to preserve to her the same dower right which she had as decedent's wife as though she was still his wife at the time of his death; and that notwithstanding she had secured a divorce from him she was entitled to dower in real estate of which he was seized at the time of his death, even though she was not his widow and she and he had remarried.
To support these contentions, plaintiff relies not only upon the statutes as they existed prior to January 1, 1932, but upon the following cases: Arnold v. Donaldson, 46 Ohio St. 73, 18 N.E. 540; Lamkin v. Knapp, 20 Ohio St. 454; McGill v. Deming, 44 Ohio St. 645, 11 N.E. 118. See, also, Van Blaricum v. Larson, 205 N.Y. 355, 98 N.E. 488, 41 L.R.A. (N.S.), 219, Ann. Cas. 1913E, 553.
It may be conceded that if the legislation above noted constituted a valid exercise of legislative power, the claimed dower rights of the plaintiff have been completely barred. These statutes did not act retrospectively but prospectively as to all inchoate dower rights. Notwithstanding the divorce decree, the inchoate right of dower of the plaintiff continued up to the time the dower and alimony statutes above noted became effective on January 1, 1932, and her inchoate right of dower was barred as were the inchoate rights of dower of all other spouses whose husbands or wives were living on that date. The plaintiff and all persons in her situation had no vested interests by way of dower in the realty of their living spouses on the date the new legislation became effective. Hence, these statutes took away no constitutional rights and did not operate retrospectively but prospectively as to all dower rights which accrued and vested after such date.
The plaintiff complains that the new legislation operated discriminatingly against her in that she was deprived of the statutory rights given in lieu of dower under the new legislation and in that the legislation operated unfairly as between pre-1932 divorcees and post-1932 divorcees, because, as to the latter as distinguished from the former, the court could decree alimony in the light of the loss of dower rights. The answer to this complaint is obvious. The jurisdiction of a court in an alimony case is continuing and if any injustice had been done to the plaintiff by the barring of her inchoate dower rights she could have applied after 1932 for a modification of the alimony award in her favor because of changed circumstances just as decedent did upon her remarriage.
During the lifetime of both spouses, dower is a contingent inchoate right and becomes vested in the surviving spouse only upon the death of the other spouse. This court has indicated the character of the right under former statutes in holding that a wife was not a necessary party defendant in proceedings to partition or appropriate the husband's lands, nor was she entitled to any part of the condemnation award or dower therein. Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec., 355; Long v. Long, 99 Ohio St. 330, 124 N.E. 161. It is to be noted, too, that Section 8606, General Code, before its repeal contained a condition precedent to an award of a dower estate to the surviving spouse, which condition was that dower attached only in case the party claiming dower had "not relinquished or been barred of it." Clearly, by this provision of the statute the General Assembly had specifically retained its power to abolish inchoate dower by future legislative enactment.
It is the view of this court that the plaintiff had only an inchoate right of dower prior to decedent's death which could be terminated and was terminated by the repeal and revision of the statutes in question, effective January 1, 1932.
"Dower is not the result of contract, but is the creature of positive law, founded on reasons of public policy, and subject while it remains inchoate, to such modifications and qualifications as legislation, for like reasons of public policy, may see proper to impose." Weaver v. Gregg, supra, 549. See, also, Long v. Long, supra; DuBois v. Coen, Exr., 100 Ohio St. 17, 125 N.E. 121; Randall v. Kreiger, 23 Wall., 137, 23 L. Ed., 124; Ferry v. Spokane, Portland Seattle Ry. Co., 258 U.S. 314, 66 L. Ed., 635, 42 S. Ct., 358; Steinhagen v. Trull, 320 Ill. 382, 151 N.E. 250; Weyer v. Barwell, 327 Ill. 214, 158 N.E. 475; 37 Ohio Jurisprudence, 436, Section 189.
The plaintiff claims further that her divorce proceeding was a pending action since 1918, within the meaning of Section 26, General Code, by reason of the continuing jurisdiction of the court in divorce proceedings; and that her dower rights must be determined by Section 11991 prior to its amendment, effective January 1, 1932, citing as authority for her position the cases of Smedley v. State, 95 Ohio St. 141, 115 N.E. 1022; State, ex rel. Crawford, Exr., v. Industrial Commission, 110 Ohio St. 271, 143 N.E. 574; Hupp v. Hock-Hocking Oil Natural Gas Co., 88 Ohio St. 61, 67, 101 N.E. 1053, Ann. Cas. 1914D, 1004.
Specifically, the plaintiff claims that her divorce action, so far as it related to the subject matter of alimony and inchoate right of dower, was in effect a pending proceeding on January 1, 1932, within the purview of Section 26, General Code, which provides that pending actions shall not be affected by the repeal or amendment of a statute unless, where the repeal or amendment relates to the remedy, it is expressly provided for in the amending or repealing act.
The court, in its alimony decree, specifically provided that the plaintiff was "not by this decree of divorce and alimony barred of her right and interest of dower in any of the real estate owned by the defendant at the date of this decree," but in making this order the court was without jurisdiction to pass upon or render any decree awarding the plaintiff any right of dower which was in conflict with legislative enactment creating dower or alimony rights.
The purpose of Section 26, General Code, is to preclude a pending action from being affected by an amendment to or the repeal of a statute. Inchoate dower furnishes no basis for a cause of action relating to the preservation or destruction of dower rights. The court cannot by its decree either preserve or bar inchoate dower rights or dower burdens. Such rights or burdens are not determined by the court's orders. They exist and persist by the force of statutes. When a decree of divorce is granted, the statutes automatically define the inchoate dower rights or burdens of the parties regardless of the court's decree, even though the court decree attempts to deal with these matters. A person does not acquire a vested right to a dower interest in the property of his spouse until the latter's death. Until then, he can have no cause of action to assert a claim of dower or a dower status which an amending or repealing statute could destroy or take away. See DeWitt v. DeWitt, 67 Ohio St. 340, 351, 66 N.E. 136.
The plaintiff's divorce action before the death of decedent related solely to divorce and alimony and not to dower in his real estate. Hence, Section 26, General Code, had no application to an action asserting a claim of dower arising as it did upon the death of plaintiff's spouse 15 years after the changes in the statutes affecting dower rights. This claim of the plaintiff is, therefore, untenable.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON and MATTHIAS, JJ., concur.
TAFT, J., not participating.