I cannot concur in the affirmance of this judgment.
The action sounds in equity. Mr. Pomeroy, in his Equity Jurisprudence (Yol. 3, §§ 1380-1382), states that originally the wife’s right of dower was purely legal and was asserted at law; that in the *454reign of Queen Elizabeth courts of equity began to assume jurisdiction over cases of dower; that this jurisdiction has been expanded so as to afford complete relief between the parties; that equitable interposition in cases of dower was at first invoked for the removal of impediments in the way of recovery at law; and that it is now well settled that courts of equity have concurrent jurisdiction in cases of legal dower or dower in legal estates.
In the present action dower is claimed, not only in real property which was conveyed to William H. Starbuck in April, 1884, and stood in his name, but also in another piece of property which, in 1881, was conveyed to, and stood in the name of¿ one Turner, and-of which, the complaint alleges that Starbuck was in fact owner. It was necessary to bring an action in equity to remove this title impediment in the way of plaintiff’s recovery; and she has sought such forum.It is not necessary to cite authority for the principle that he who seeks equity must do equity and must come into court with clean hands. (1 Story Eq. Juris. § 64e; Bisp. Eq. §§ 42, 48; “ Qui sentit commodum sentare debet et onus.” Broom Leg. Max. 705.)
The plaintiff invoked the jurisdiction of the Superior Court of Massachusetts, in commencing an action for divorce, and submitted herself to the power of that court. She cann'ot now in good conscience refuse to abide by its decree dissolving the marital bonds. '
In Hewitt v. Northrup (75 N. Y. 506) it was said (p. 510) :(i But the claim is further made that the Supreme Court is not the court to determine the amount and validity of debts, nor to marshal the assets of a bankrupt, and that the proper parties are not here for that purpose;" But the plaintiffs went into that court' and invoked its jurisdiction, and brought in just such parties as they deemed proper, and they cannot now complain that the court determined all the questions needful for a proper disposition of the case.”
The marriage in question took place in Massachusetts, and there is no evidence tending to show that the plaintiff went there for the purpose of acquiring a domicile in order to bring an action for divorce. She went there in 1868, and her action for divorce was not commenced until 1874. She obtained her decree, received and accepted whatever benefits accrued therefrom, including the custody of a minor child of the marriage; and, from 1874 until the death of William H. Starbuck, practically proclaimed that she was no longer *455his wife. Having accepted the benefits of the decree and acted under it, she cannot be permitted to reject its disabilities and burdens. This principle is so fully established that it is unnecessary to cite authority.
I think the plaintiff is estopped to claim a dower right in property acquired by William after the dissolution of the marriage tie between herself and him. He acted upon the faith of the judgment and contracted a new marriage, not in New York, but in Pennsylvania, so that no prosecution for bigamy, within the principle of People v. Baker (76 N. Y. 78), could have been maintained against him in New York. Children have resulted from the marriage, and an affirmance of the judgment would in effect declare the new wife to be an adulteress and the children bastards, and strip them of rights in property acquired by the husband and father after the plaintiff had obtained her decree of divorce and after the contracting of the new marriage. I cannot assent to any doctrine which would have that result.
There is no decision of our Court of Appeals, so far as I can find, where it has been announced that a plaintiff who has sought and •obtained a decree of divorce within the jurisdiction of her domicile, can be heard to assert its invalidity for the purpose of claiming dower in the property of her divorced husband acquired after the •decree and a second marriage. There are decisions at Special Term which sustain the doctrine upon which the prevailing opinion is based. There are also opinions of the same character in the old General Term. But there are also opinions in the old General Term to the contrary, and as- these are referred in the opinion of Mr. Justice Hirschberg, I do not refer to them.
A recent opinion in the fourth department (Matter of Swales, 60 App. Div. 599) contains this significant language (p. 603): “ Mrs. Swales, in order to obtain an absolute divorce from her husband, •elected to go into the State of Illinois, where the rules and regulations respecting such actions are much less rigid than they are in this State. She obtained what she went for, and, reposing upon the regularity and security of her decree, she subsequently married another man, with whom she is still living. Having made this election and secured to herself all the benefits that were obtainable therefrom, it would seem like a travesty of justice to permit her now to repudiate the same and by impeaching the validity of the *456decree under which she has lived for eighteen years, to administer and appropriate the personal estate of a man from whom, for that period of time, she had proclaimed to the world that she was absolutely divorced.”
People v. Baker (supra) and other like cases rest upon the principle that where there is substituted and not personal service upon the defendant within the State, the court acquires no jurisdiction of' the defendant as he has had no opportunity to be heard. But that principle does not affect the plaintiff, who has invoked the jurisdiction, has been heard and had her status declared.
In Jones v. Jones (108 N. Y. 415) there had been an action for divorce in Texas, in which the defendant there appeared at first to object to the jurisdiction, but afterward appeared generally and defended the action and prosecuted an appeal from the judgment. The court held (p. 427) “ that the Texas judgment is a valid and binding adjudication. There is no reason to regret this result. The present plaintiff had a full opportunity tó be heard and to present, his defense in that proceeding, and availed himself of it. He appealed from the judgment, which was affirmed by the highest jurisdiction of the state. The litigation was, we think, conclusively ended by the final decree.”
In Rigney v. Rigney (127 N. Y. 408) the court said (p. 413): “ The courts of the United States and those of most of the several states, including Hew York and Hew Jersey, hold a divorce to be valid, so far as it affects the marital status of the plaintiff, which is granted by the courts of a state pursuant to its statutes, to one of its resident citizens in an action brought by such citizen against a resident citizen of another state, though the defendant neither appears in the action nor is served with process in the state wherein the divorce is granted. (Cheever v. Wilson, 9 Wall. 108; Pennoyer v. Neff, 95 U. S. 714; People v. Baker, 76 N. Y. 78; Doughty v. Doughty, 28 N. J. Eq. 581; Cooley on Const. Lim. 400; 2 Bish. Mar. Div. & Sep. § 150 et seg.) But the courts of this and some of the states hold that the marital status of such non-resident defendant is not changed by a. judgment so recovered, he or she. remaining a married person. (People v. Baker, 76 N. Y. 78; O’Dea v. O’Dea, 101 id. 23; Jones v. Jones, 108 id. 415 ; Cross v. Cross, Id. 628 ; Cook v. Cook, 56 Wis. 195; Doughty v. Doughty, 28 N. J. Eq. 581; Flower v. *457Flower, 42 id. 152; 2 Bish. Mar. Div. & Sep. § 153 et seq. ; 2 Black Judg. § 926.) ” This decision was reversed by the United States Supreme Court, sub nomine Laing v. Rigney (160 U. S. 531), but I do not find that the statement of the law in the above quotation was disapproved.
Thus we have the declaration of the Court of Appeals that the marital status of the plaintiff has been changed by the valid decree of the Massachusetts court. As that decree declared her to be no longer the wife of William, it is somewhat difficult to understand how she can have dower in his subsequently acquired real estate.
The judgments of divorce under consideration in People v. Baker (supra) and O'Dea v. O'Dea (supra) were obtained previously to 1874, at which time there was no provision in our Code for serving an absent defendant in a divorce action by substituted service. The Code was amended in 1876 so that in a divorce action a non-resident could be served by publication, and this fact was referred to by Judge Folger in his opinion in the Baker case, at page 87. Both of these cases, therefore, were decided at a time when our statutes did not provide for the service by publication of a summons upon a defendant in an action for divorce. Since the amendment which authorized the acquiring of jurisdiction against a non-resident in such an action, it seems unreasonable that, as against the plaintiff, we should refuse to recognize the decree of the court of a sister State, obtained by the plaintiff in precisely the same manner, and thereby fail to give that full faith and credit to the records and judicial proceedings of every other State which is required by article 4, section 1, of the Federal Constitution.
These views are sanctioned by Atherton v. Atherton (181 U. S. 155), where the court said (p. 162): “ The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife or a wife without a husband is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall- not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage.” The court cites, apparently with approval, Dit*458son v. Ritson (4 R. I. 87), the leading case in opposition to the People v. Baker doctrine, remarking, with regard, to it, that Judge Cooley, in his Treatise on Constitutional Limitations (403, note), says that there is no case in the books more full and satisfactory upon the whole subject of jurisdiction in divorce suits. The opinion also refers to People v. Baker, the doctrine of which is apparently disapproved, inasmuch as the Supreme Court recognizes the binding character of a decree obtained in Kentucky without personal service upon the absent defendant, in accordance with the 1st section of the 4th article of the Constitution of the United States, above referred to.
The wide divergence of opinion in the courts of different States upon this important question gives weight to the remark of the Court of Appeals in People v. Baker, where it was said: “It remains for the Supreme Court of the United States, as the final arbiter, to determine how far a judgment rendered in such a case, upon such substituted, service of process, shall be operative without the territorial jurisdiction of the tribunal giving it.” It seems to me that the-United States Supreme Court has virtually decided , the question adversely to the views expressed in the prevailing opinion in the present case, as that court (Atherton case, p. 173) said: “ The result is that the courts of Kew York have not given to the Kentucky decree of divorce the faith and credit which it had by law in Kentucky, and that, therefore, their judgments must be reversed.”
My objections to the conclusions of Mr. Justice. Hieschbebg are, that his opinion fails to regard the equities of the situation; that it .makes no distinction between the rights of a plaintiff who has invoked the jurisdiction of a court and those of a defendant who, though he may have been summoned according to the law of the jurisdiction, has not appeared in the action; that it fails to give effect to the doctrine declared in Rigney v. Rigney (supra), that the plaintiff’s marital status is fixed by the Massachusetts decree; that it disregards the principle that one who has accepted the benefits- of one part of a decree cannot reject the burdens imposed by it ;-and that full faith and credit are not accorded to the judgment of the Superior Court of Massachusetts.
Defendant’s exceptions overruled and motion for new trial denied, with costs.