MARTIN'S HEIRS and ADM'RS. vs. MARTIN, 22 Ala. 86

CHILTON, J. The first question presented for consideration is, should the demurrer to the petition have been overruled.

Several objections have been taken to it by the counsel for the plaintiffs in error, as: First, it does not state whether the alleged husband of the demandant died testate or intestate, and consequently it is impossible to determine from the petition itself whether devisees or the heirs at law are the proper persons to be made parties; Second, it does not aver that the children named in the petition as the “ onljr legitimate children of the deceased,” are the heirs at law, or the devisees of the deceased; Third, it fails to show that there is any executor or administrator upon the estate, except that there is an administrator with limited authority, and fails to state who he is; And fourth, fails to show who are the tenants of the freehold.

By the third

section of the act of 1826 (Clay’s Digest 173, § 5,) it is provided “ that it shall be lawful for any widow, claiming dower, to file her petition in the Circuit or County Court, in the county where her husband shall have usually dwelt next before his death, setting forth the nature of her claim, and particularly specifying the lands, tenements and hereditaments, of which she claims dower, and praying that her dower may be allotted to her; whereupon the said court shall issue their writ to the sheriff, commanding him to summon five discreet freeholders as commissioners, connected with the parties neither bjr consanguinity nor affinity, and entirely disinterested, who, upon oath, (which oath the sheriff is hereby authorized to administer) shall allot, and set off by metes and bounds to the said widow, one third part according to quantity and quality of all the lands, tenements and hereditaments in said county, and shall put her in possession of the same, which possession shall vest in her an estate for her natural life ; and where she has claim to dower in lands lying in different counties, she may proceed in the Circuit or County Court where such lands may lie, and make recovery in manner as is hereby directed; and the sheriff and commissioners shall, also, at the same time, allot and set off to such widow ber portion of the personal estate, of which her husband died possessed, and to which by this law she shall be entitled, which part or portion shall be and enure to such widow, her heirs, executors, administrators and assigns forever.” The succeeding

section provides, that “the proceedings upon such petition for dower, shall be in a

summary way, and the court shall, at the first term when such petition is filed, proceed to hear and determine as to them shall'seem just and .right; Provided, That the party petitioning for dower shall give ten days’ previous notice to the executors or administrators, by serving them with a copy of said petition; and where there are no executors or administrators, or where they do not reside in the county of the residence of such widow, or where the widow shall be the executrix or administratrix, then she shall give the said notice in one of the newspapers published in this State nearest to the residence of such widow, by advertising the same four times in succession.” In the case of the Executors of Greene v.

Greene, 7 Por. Rep. 19, the provisions of this statute above cited underwent an examination by this court, and a construction was then given to it with which we are entirely satisfied, and to which we feel bound to adhere. This court held “ that in all cases it is necessary, either in the petition, or by suggestion to the court, for the petitioner to state who are the heirs and tenants of the freehold; and to avoid delay, she may give them notice to appear at the court to which the application is made, to controvert her claim.

If they appear and plead, an issue may be made up, &c., or the)'- may demur to the petition ; for it is necessarjr that the petition should set forth with reasonable precision the facts on which her claim to dower rests, so as to make out a prima facie case. The same doctrine was substantially affirmed in Earle v. Juzan, 7 Ala. Rep. 474; and in Barney v. Frowner & Wife, 9 ib. 901-3, it was said: “ The petition does not show whether there is any personal representative of the estate or not.” It did not appear that one- of the heirs was notified.

As to a necessary party who had died (Margaret Johnson) no steps had been trken but merely to suggest her death. Nor did it appear that all the terre Unants were, regularly before the court, as was decided in Greene v. Greene, supra. Eor these reasons, the judgment of allotment of dower was reversed. We think these citations very conclusively establish the insufficiency of the petition in the case before us. The remedy given by the statute is a

summary one, in derogation of the common law, and a special limited jurisdiction is created in the Probate Court, to avoid the delay consequent upon the common law proceeding. The party petitioning must therefore conform to the statute in every essential particular. We would say then, she must show by her petition the essential elements which constitute the title to dower, marriage, seizin of the husband during the coverture, and his death. She must farther particularly describe the lands in which she claims dower.

In order also to confer jurisdiction upon the Court of Probate, she should aver that the lands were situated in the county in which she filed her petition. (See — Ala. Rep.-.) In order also to enable the court to ascertain whether she should not be put to her election, as between her claim for dower and the provision made for her in the will of her late husband, and as necessary to enable the court to determine as to whom notice should be given to come in and contest as parties, she should show whether her husband died testate or intestate, and who are his personal representatives, if any there be.

She must show who are the heirs and tenants of the freehold; and the record should show that the necessary parties are before the court, otherwise its sentence would not be definitive, and the sheriff might be required by the mandate of the court to turn a party out of possession of his freehold, whose first notice of the proceeding by which he is to be ousted is the visit of that officer. The petition before us is defective in several of these essential requisites. The marriage is only to be arrived at by inference from the averment that demandant is the widow, a mode of pleading not to be encouraged.

It is not said the lands lie in Perry county, in which the petition is filed, but that the deceased died -in said county, seized and possessed (they may have been in another county) of the following lands, &c. Upon whom did the seizin of the ancestor devolve upon his death? Upon his heirs at law, if not otherwise provided by deed or will. But wbo are Ms heirs ? The petition does not inform us.

It says, certain persons who are named, “ are his onty legitimate children.” There may have been others who “are not,” but having died, may have left children who would also be heirs, although they would not be, in common parlance, the children of the decedent; so that we must arrive at the heirs, from the averment that the persons named are the only legitimate children, and thus be compelled to resort to inference in order to aid the pleader. Another and more palpable omission is, the failure to show that there is any personal representative upon the estate.

The petition avers that the deceased has much personal property in the county, a list of which, as petitioner has been informed, has been returned to the court by the administrator with limited authority appointed by said court. Who was this administrator, and to what did his authority extend ?

If he were a mere temporary administrator, to take care of the estate pending some controversy as to who should be administrator-in-chief, or executor under a contested will, or an administrator ad colligendum, it is clear he is not the officer whose duty it is to make distribution to the widow, nor the administrator contemplated by the fourth

section of the act of 1826 as entitled to notice. We are therefore of opinion that the petition is defective, and that the demurrer to it should have been sustained. We might here close this opinion; but as the case would doubtless return upon us, it is proper that we express our views upon the merits of the controversy, which may be done in few words. And first we may premise, that the Probate Court proceeds according to the rules of law, in the exercise of its

summary jurisdiction over the subject of dower, and has no equity jurisdiction; so-that if the demandant has a legal right to dower, it is the duty of the court to allot it, irrespective of considerations which are purely of equitable cognizance. The proceedings are drawn out to a most unnecessary length, and as upon a subsequent trial they will doubtless be modified, it is unnecessary that we go into an examination of the' numerous points raised upon them, as it would serve rather to confuse than to assist the primary court in arriving at a correct result upon the real merits of the controversy.

The questions which appear to be involved in the record, and a decision of which at this time is deemed necessary as a guide in the future conduct of the cause in the court below, may be thus stated: First, was the marriage between the demandant and the deceased, lawful? Second, if lawful, was the husband, during the coverture, seized of such an estate in the lands of which dower is claimed, as entitles demandant to dower ? And third, conceding the marriage and the seizin of the husband as established, has the demandant released, forfeited, or in any manner barred her right to dower ?

And first, as to the marriage: Though a man marries never so often, he can have but one lawful wife living. So long as she is living, and the marriage bond remains in full force, all his subsequent marriages, whether meretricious, or founded in mistake and at the time supposed to be lawful, are utterly null and void. No decree of divorce is necessary to annul such subsequent marriage, for it never had any legal existence. Such was clearly the common law. In Riddlesden v. Wogan, Cro. Eliz 857, the plaintiff declared in debt on a bond.

Defendant pleaded that she was, at the time of its execution, the wife of one Inglebert, -who was then in life et sic non est factum.

Plaintiff replied that, after the bond was made, the defendant was divorced from said Inglebert by decree of the spiritual court, by reason of his having another wife living at the same time of his marriage with defendant and averred that such former wife was then living- To this replication there was a demurrer, but it was adjudged good by the court, because the decree of divorce was but declaratory. “ The subsequent marriage was merely void, and needed not any such sentence of divorce. It was void ab initio, and so she was always sole.” So also in Pride v.

The Earls of Bath and Montague, Salkeld 120, which was ejectment by Pride as heir to the Duke of Albemarle, proving himself the son of one who was brother to the Duke, who died without issue. But the defendants proved that the Duke had a son, Christopher, who conveyed to them. Plaintiff then gave evidence that, at the time the Duke married Christopher’s mother, she had another husband living, and who was then living.

To this it was objected that, since the Duke and this woman lived together as man and wife, and were botb dead, the plaintiff could not be permitted to bastardize the issue, who was dead also, and who during his whole life had been taken and reputed to be the legitimate som of the Duke and so styled by him in his deed of settlement, and also in his last will and testament. But the objection was overruled, and the court said: “ If H. marries a woman, and that woman marries again, living H. the last marriage is void without any divorce.

The spiritual courts onlylnterfere in such cases pro salute animce. “ No person,” says Judge Kent, “ can marry while the former husband or wife is living. Such marriage is, by the common law, absolutely null and void.” 2 Com. 79. The prior marriage renders the parties incapable of contracting at all; “andif any persons under this legal incapacity,” says Mr. Shelford, “ come together, the union is meretricious, and not a matrimonial union; and therefore no sentence of avoidance is necessary.” Shelford on Divorce, &c., 480; 2 Phill. R., 19.

Such being the Settled law, it follows that if, at the time of the marriage between the demandant and David Todd, said David had a lawful wife living, his marriage with the demandant was absolutely null and void, and imposed no obstacle to her marriage subsequently with the deceased. Nor does it in any way affect the rights of the parties to this controversy, that the said Betsey knew at the time she married Todd that he had a former wife then living. We know of no principle which bars a woman of divorce because she has indulged a meretricious union anterior to her marriage.

As to the proof of marriage between Todd and Asa Rebecca McCulloch, it is only necessary that it should be such as to satisfy,the jury that such marriage actually did take place. Proof by an eye witness is not required, nor is it indispensable that the license with the minister’s return endorsed thereon should be produced. It was said by Lord Mansfield in Morris v. Miller, 4 Bur. 2057, and afterwards repeated by him in Birt v. Barlow, Doug. 171, that “ an action for criminal conversation was the only civil action where it is necessary to prove an actual marriage.

In other cases, cohabitation, reputation, &c., are sufficient.” See to the same point Ford v. Ford, 4 Ala. Rep. 145; 2 Starkie’s Ev. 6 Ed. marg. p. 251, and Forney v. Hallacher, 8 Ser. & R. 159; Phil. Ev. (C. and H. Notes,) yol. 8, p. 1147. The bond given by David Todd and Samuel McCullough, preparatory to obtaining license, is relevant and legal proof, but was improperly admitted on the trial in this case, because the certificates were insufficient. It does not purport to be a record, and no law was introduced showing that by the laws of Georgia it was required to be recorded. This is necessary. Mitchell v.

Mitchell, 3 Stew. & Por. 81; White v. Strother, 11 Ala. Rep. 723. When this proof is made, the act of Congress of 1804 (see Clay’s Dig. 619) prescribes the manner of authenticating the exemplification of it. As respects the question attempted to be raised by the pleading, that the lands were purchased by the decedent with money which he obtained from Mary Martin, one of the defendants, it is only necessary to observe, that the Probate Court is incompetent, for want of jurisdiction, to go into such an inquiry.

Whether a court of equity would decree a lien to take precedence of the claim for dower, is not a question now before us, and we therefore intimate no opinion upon it. It is very clear the Probate Court cannot entertain jurisdiction of such an inquiry.

If, upon a subsequent trial, the jury should find that, at the time of the demandant’s marriage with Todd, he had a lawful wife living, this would render her a feme sole when she after-wards married with the deceased, and incapacitate him from entering into a valid marriage with the defendant Mary; for the deceased would then have occupied a position precisely similar to Todd, having a lawful wife living. This marriage with Mary Campbell, as the defendant was called, would in such case be null and void, and this consequence would follow, however innocently the parties may have entered into the relation.

The only remaining question is, has the demandant released, forfeited, or in any manner barred her right to dower. Premising that what we say upon this subject must be considered as applicable to the case in the common law forum, and without any intimation as to whether a remedy exists elsewhere, we are quite sure that the agreement said to have been entered-into between Shadrach Martin and the demandant, cannot be looked to as creating any bar or impediment to a recovery of dower.

If the husband by jointure after marriage make a competent livelihood of freehold for the wife, of lands and tenements, to take effect presently, in possession or profit, after the decease of the husband, and to continue for the wife’s life, even this shall not bar her dower, unless she elects to accept it in lieu of dower after her husband’s decease; for she is not capable of consenting to such provision during coverture. Stephens’ Com. vol. 1, p. 256.

Much less would the inadequate provision made by the parties in this case to continue two years, and entered into during their marriage, have the effect of barring the wife’s right. It is well settled law, that a release of dower from the wife to the husband either before or during the coverture is void. Rowe v. Hamilton, 3 Greenl. Rep. 63; Hastings v. Dickerson, 7 Mass. Rep. 155; Bouv. Inst. vol. 2, p. 248; Gould v. Womack, 2 Ala. Rep. 83; Blackman v. Blackman, 16 ib. 633. In respect to the dissent by the widow to the husband’s will: It was settled in Greene v.

Greene, supra, that where no provision was made for her by the will, she may claim dower without any express dissent. She cannot be put to an election, unless there be alternatives as to which she majr exercise a choice. The question as to fraud on the part of the demandant in failing to communicate to the deceased, at the time of her marriage with him, a correct knowledge of her condition, is a matter which the Probate Court cannot try.

If'there was a marriage between parties capable of entering into that relation, and the marriage has never been legally dissolved, it is sufficient upon this application, however the husband may have been decieved in respect to the former conduct or condition of his wife. And as we have seen that she could not, during the coverture, bar her right to dower by any agreement entered into with her husband, it would follow that, in a court of law, she would not be estopped by any recognition of his right to marry another woman, or of the validity of such subsequent union.

The relation of marriage once established, the wife during its continuance is regarded as sub potestate viri, and her inchoate right to dower attaches, which can only be barred or defeated by some of the modes pointed out by the common law, or recognized by the State. The record before us, if the marriage is found to be valid, presents no legal impediment to the demandant’s right to dower.

The authorities cited by the counsel for the plaintiff in. error, showing that these are cases where the wife shall be estopped from denying the marriage, doubtless are correct, but they have no application to cases like the present, where the claim is for dower.

Where the subject matter of the litigation arises out of a contract either express or implied, it may be granted that a married woman may be estopped, like-other parties, by acts or declarations upon which others have been induced to act, and against the truth of which it would work fraud and injustice for her to aver; but this doctrine can have no application to dower, which does not arise out of, nor is dependent upon any contract. On the contrary, “it is an estate which arises solely by operation of law, and not by force of any contract, express or implied, between the parties.

It is the silent effect of the relation entered into by them; not as in itself incidental to the marriage relation, or as implied by the marriage contract, but merely as that contract calls into operation the positive institution of the municipal law.” Park on Dower, 5. It has for its object the sustenance of the widow and the nurture and education of her children, if she have any, and is favored in law. Indeed, such was the favor with which it was regarded by the ancient common law, that it grew into a maxim, “ that the law favor-eth three things: 1. Life; 2. Liberty; 3. Dower.” Cro.

Jac. 111; 9 Co. 170; Park on Dower, 2 notes. Dower being an institution of positive law, can only be defeated or barred by some of the modes pointed out by the law. We are asked to render judgment in this court dismissing the petition; but we are of opinion the petition can be amended, and the proper parties made.

The fact that there was no such administrator as contemplated by the statute to be made a party to the petition when it was filed, did not prevent the widow, from proceeding under the statute by publication, and the subsequent appointment of a representative of the estate relates to the death of the testator, and sbe may be brought in and made a party, as well as the other persons in interest. Let the decree be reversed and the cause remanded.