Weight, C. J.
This case was before us at the December term, 1856. An opinion was then delivered by a majority of the court, affirming the decree of the court below, The respondent, who is also appellant, filed her petition for a re-hearing, which has been granted; and I am now instructed to prepare an opinion, in which all' the members of the court concur, reversing the decree below, and dismissing complainant’s bill.
The first question, and one that, as now advised, we think disposes of the whole case, is, whether it was legitimate or permissible to render such a decree. The statute in force at the time the decree of divorce was rendered, provided that whenever a divorce was decreed from the bonds of matrimony, the guilty party should forfeit all rights acquired by virtue of such marriage. Act of 17th January, 1840, sec. 6. In this case; it was found that the wife, (the present complainant,) was the guilty party.
While mere names may, in most instances, be unimportant, and should not be allowed to affect substantial rights, yet, in this instance, we understand that what the complainant claims, and that to which she is entitled, if anything, is dower from the deceased husband’s estate. This [251]*251is what it is styled in her bill, and it is this, or it can be nothing. It cannot be alimony, for this is merged, necessarily, in the right of dower, so soon as the husband dies. To entitle the wife to this dower, there must be a marriage, seizin, and the death of the husband. After marriage and seizin, the right is inchoate, and on his death, it becomes perfect, unless she has, voluntarily or otherwise, parted with, or forfeited the same. To give her this right, the marriage or coverture must have continued until the time of his death; or, if not so continuing, her right will not be preserved, if the marriage was dissolved from her fault, he being the innocent party. And where, as in this case, the sentence of divorce, which adjudges her guilty, and by virtue of which, she, by the law, forfeited all her rights acquired by the marriage, remains in full force, in no manner reversed or set aside, the wife, upon no fair or legitimate reasoning, can be entitled to dower. The decree of divorce is as complete and absolute a bar to the relief prayed for, as would be her own voluntary conveyance, executed with all the formalities required by law. The argument may be stated thus: the sentence of divorce dissolved the bonds of matrimony, existing between the parties. The petition was filed by him, and she was found to be the guilty party. Being so found, she forfeited all rights acquired by virtue of her marriage. If she stands adjudged guilty, and the forfeiture follows, then she cannot claim any right so forfeited, so long as that sentence dissolving the marriage remains. And, therefore, we conclude, that where there is a decree of divorce from the bonds of matrimony, in favor of the husband, for the fault of the wife, of the pendency of the application for which she had personal service, she, after his death, is not entitled to dower, nor to a portion of his estate, by virtue oí the former marital relation, so long as such sentence of divorce remains in force. And more particularly is this true, when the husband has again married.
But it is urged, that the sentence of divorce does not continue in force, but is declared void in part, or so far as [252]*252to give the complainant the relief asked. This is true. But such a decree, we think, is both logically and legally inconsistent, and cannot be supported either upon principle or authority. This decree gives the complainant dower in the lands, and one-third of the personal estate, and at the same time, leaves so much of the sentence of divorce as dissolved the bonds of matrimony, in full force. It does not find that the coverture continued to the time of his death ; nor that its non-continuance was occasioned by any fault or guilt on his part; and yet gives her dower to the same extent, and as fully, as if it did so continue. It, in effect, says, there may be dower, without the continuance of the matrimonial state.
But the legal, as well as logical, inconsistency of such a decree, may be best illustrated by the circumstances of this case. It gives complainant dower, and yet in effect recognizes the continuance of the second marriage to the ' time of the husband’s death. We say, in effect, for this is doubtless what is particularly contemplated, by the clause which provides that the decree of divorce shall not be vacated as to other persons, or in any other respect. Under such a decree, what is respondent’s situation ? Is she entitled to dower? She certainly is, upon every known rule, for she was the wife at the husband’s death, and still continues his widow, for aught that appears by this decree. Let us suppose, then, that she applies for dower, and it is granted) upon what basis is it to be given ? Is she to have one-half or one-third of the remaining estate ? And whether the one or the other, how are the rights of the children by the second marriage affected ? How much of their estate is taken from them, by carving out of the whole, a dower interest for two widows ? What consistency or reason is there in providing, that the sentence of divorce shall be vacated to give the complainant dower, but not so far as to affect third persons, or in any other respect, and yet in the same decree, strip such third persons of almost a moiety of their inheritance ?
We cannot think that such a decree can be sustained. [253]*253If tlie sentence of divorce was void for fraud or duress, then it was void, not in part, but in all its parts, and should have been so declared. The effect thereof upon the second marriage, contracted before such sentence was set aside, or upon the children born of such second marriage, is not to be determined, nor is it material to enter upon that inquiry. But it is material, that the disability resulting from the divorce, should be removed, before complainant could assert a right, which, by that sentence, was forfeited. And without entering upon the inquiry, whether, by the law of this country, a woman can, in any case, have dower in the husband’s estate, unless the coverture was continuing at the time of his death, we feel constrained to hold, that she cannot, if the cause of its non-continuance, is the result of her own fault or guilt, as found and settled by the decree of a court of competent jurisdiction; and certainly not, until the disability resulting from such a decree, is removed, and she substantially, and in fact, re-instated as the wife during his life, and the widow after his death. There cannot be two widows, lawfully entitled to dower, any more than there can be two wives, legally entitled to the support, care, protection and name of the husband. And, in this case, either complainant or respondent were entitled to the dower estate, to the exclusion of the other. Both could not be thus entitled. Bishop on Mar. & Div. sections 660, 1, 2, 3, 5, 6, 8, 9 and notes; Given v. Man, 27 Maine, 212; McCafferty v. McCafferty, 8 Blackf. 218; Clark v. Clark, 6 Watts & S. 85; 4 Kent, 53; Starr v. Pease, 8 Conn. 541; Mattocks v. Stevens, 9 Vermont, 326; Green v. Green, 2 Gray, 361.
The bill in this case, does not ask to set aside the decree of divorce entirely and for all purposes, but only to the extent already stated. Wé think this cannot be done, and b eyond this, perhaps, we may not go.
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Weight, C. J.
This case was before us at the December term, 1856. An opinion was then delivered by a majority of the court, affirming the decree of the court below, The respondent, who is also appellant, filed her petition for a re-hearing, which has been granted; and I am now instructed to prepare an opinion, in which all' the members of the court concur, reversing the decree below, and dismissing complainant’s bill.
The first question, and one that, as now advised, we think disposes of the whole case, is, whether it was legitimate or permissible to render such a decree. The statute in force at the time the decree of divorce was rendered, provided that whenever a divorce was decreed from the bonds of matrimony, the guilty party should forfeit all rights acquired by virtue of such marriage. Act of 17th January, 1840, sec. 6. In this case; it was found that the wife, (the present complainant,) was the guilty party.
While mere names may, in most instances, be unimportant, and should not be allowed to affect substantial rights, yet, in this instance, we understand that what the complainant claims, and that to which she is entitled, if anything, is dower from the deceased husband’s estate. This [251]*251is what it is styled in her bill, and it is this, or it can be nothing. It cannot be alimony, for this is merged, necessarily, in the right of dower, so soon as the husband dies. To entitle the wife to this dower, there must be a marriage, seizin, and the death of the husband. After marriage and seizin, the right is inchoate, and on his death, it becomes perfect, unless she has, voluntarily or otherwise, parted with, or forfeited the same. To give her this right, the marriage or coverture must have continued until the time of his death; or, if not so continuing, her right will not be preserved, if the marriage was dissolved from her fault, he being the innocent party. And where, as in this case, the sentence of divorce, which adjudges her guilty, and by virtue of which, she, by the law, forfeited all her rights acquired by the marriage, remains in full force, in no manner reversed or set aside, the wife, upon no fair or legitimate reasoning, can be entitled to dower. The decree of divorce is as complete and absolute a bar to the relief prayed for, as would be her own voluntary conveyance, executed with all the formalities required by law. The argument may be stated thus: the sentence of divorce dissolved the bonds of matrimony, existing between the parties. The petition was filed by him, and she was found to be the guilty party. Being so found, she forfeited all rights acquired by virtue of her marriage. If she stands adjudged guilty, and the forfeiture follows, then she cannot claim any right so forfeited, so long as that sentence dissolving the marriage remains. And, therefore, we conclude, that where there is a decree of divorce from the bonds of matrimony, in favor of the husband, for the fault of the wife, of the pendency of the application for which she had personal service, she, after his death, is not entitled to dower, nor to a portion of his estate, by virtue oí the former marital relation, so long as such sentence of divorce remains in force. And more particularly is this true, when the husband has again married.
But it is urged, that the sentence of divorce does not continue in force, but is declared void in part, or so far as [252]*252to give the complainant the relief asked. This is true. But such a decree, we think, is both logically and legally inconsistent, and cannot be supported either upon principle or authority. This decree gives the complainant dower in the lands, and one-third of the personal estate, and at the same time, leaves so much of the sentence of divorce as dissolved the bonds of matrimony, in full force. It does not find that the coverture continued to the time of his death ; nor that its non-continuance was occasioned by any fault or guilt on his part; and yet gives her dower to the same extent, and as fully, as if it did so continue. It, in effect, says, there may be dower, without the continuance of the matrimonial state.
But the legal, as well as logical, inconsistency of such a decree, may be best illustrated by the circumstances of this case. It gives complainant dower, and yet in effect recognizes the continuance of the second marriage to the ' time of the husband’s death. We say, in effect, for this is doubtless what is particularly contemplated, by the clause which provides that the decree of divorce shall not be vacated as to other persons, or in any other respect. Under such a decree, what is respondent’s situation ? Is she entitled to dower? She certainly is, upon every known rule, for she was the wife at the husband’s death, and still continues his widow, for aught that appears by this decree. Let us suppose, then, that she applies for dower, and it is granted) upon what basis is it to be given ? Is she to have one-half or one-third of the remaining estate ? And whether the one or the other, how are the rights of the children by the second marriage affected ? How much of their estate is taken from them, by carving out of the whole, a dower interest for two widows ? What consistency or reason is there in providing, that the sentence of divorce shall be vacated to give the complainant dower, but not so far as to affect third persons, or in any other respect, and yet in the same decree, strip such third persons of almost a moiety of their inheritance ?
We cannot think that such a decree can be sustained. [253]*253If tlie sentence of divorce was void for fraud or duress, then it was void, not in part, but in all its parts, and should have been so declared. The effect thereof upon the second marriage, contracted before such sentence was set aside, or upon the children born of such second marriage, is not to be determined, nor is it material to enter upon that inquiry. But it is material, that the disability resulting from the divorce, should be removed, before complainant could assert a right, which, by that sentence, was forfeited. And without entering upon the inquiry, whether, by the law of this country, a woman can, in any case, have dower in the husband’s estate, unless the coverture was continuing at the time of his death, we feel constrained to hold, that she cannot, if the cause of its non-continuance, is the result of her own fault or guilt, as found and settled by the decree of a court of competent jurisdiction; and certainly not, until the disability resulting from such a decree, is removed, and she substantially, and in fact, re-instated as the wife during his life, and the widow after his death. There cannot be two widows, lawfully entitled to dower, any more than there can be two wives, legally entitled to the support, care, protection and name of the husband. And, in this case, either complainant or respondent were entitled to the dower estate, to the exclusion of the other. Both could not be thus entitled. Bishop on Mar. & Div. sections 660, 1, 2, 3, 5, 6, 8, 9 and notes; Given v. Man, 27 Maine, 212; McCafferty v. McCafferty, 8 Blackf. 218; Clark v. Clark, 6 Watts & S. 85; 4 Kent, 53; Starr v. Pease, 8 Conn. 541; Mattocks v. Stevens, 9 Vermont, 326; Green v. Green, 2 Gray, 361.
The bill in this case, does not ask to set aside the decree of divorce entirely and for all purposes, but only to the extent already stated. Wé think this cannot be done, and b eyond this, perhaps, we may not go. We remark, however, that in concluding, as a majority of the court did before, that such a decree might be rendered, they also with some hesitation, regarded the testimony sufficient to sustain the charge of fraud made in the bill. If, however, the decree [254]*254of divorce must be entirely vacated to let complainant in to tbe relief prayed for, we concur in saying, that the testimony is not sufficient to justify such a decree of vacation, even if it could be granted under the prayer of the bill. The testimony is very voluminous, and we shall not refer to it, but content ourselves with this statement of the conclusion arrived at, after fully considering all that it tends to .prove. If the decree could legitimately act alone upon the property, and not upon the state and condition of third persons — if it were consistent to adjudge to complainant a portion of the estate, without vacating the decree dissolving the vmculMm of her former marriage, and visiting upon the innocent wife of the second marriage and her offspring, the consequences of such vacation — we might more readily accept the conclusion contended for by the complainant from the proof made. "Where, however,' the decree must bring wretchedness and misery to the heart of respondent, and tend to bring reproach upon the children of such second marriage, it is but natural — it is but right — that the judicial mind should want more testimony, than if its effect was merely to take property from one, and give it to the other*. Such strength of testimony, is not before us in this case.
The disposition of this question, covers the substance of the case. Other points of minor consequence, however require attention. It is urged that the petition for the dil vorce was not sworn to, and that the court rendering the decree had, therefore, no jurisdiction of the cause. This defect cannot be considered as vital. It was not a jurisdictional requisite in such a proceeding, and if not, it could not vitiate the action of the court for the purposes of the present inquiry. Cooper v. Sunderland, 3 Iowa, 114.
It is again urged, that the court had not jurisdiction of the cause of this divorce, inasmuch as the complainant’s desertion took place before the passage of the act under which those proceedings took place, and the act, it is said, cannot have a retrospective operation. The desertion is alleged to have taken place in August, 1837. The act giv[255]*255ing a right to a divorce for desertion of one year, and under which this divorce was granted, was passed January 17, 1810, and the petition for the divorce was not filed until in October, 1811. More than one year elapsed thereafter the passage of the law, before the bill was filed. When the cause called for by the statute, is a continuing one, although it may have begun before the enactment of the statute, yet, if it continued after the passage, the period required therein, this is sufficient, and the case comes within the act. In such a case, it is the future, and not the past act, which becomes the offence. Clark v. Clark, 10 N. H., 380; Greenlaw v. Greenlaw, 12 N. H., 200.
The decree of the district court is reversed, and bill dismissed.