The main question raised by this bill of exceptions is, whether the complainant is entitled to dower in lands whereof her husband was seised during the coverture, prior to the divorce for adultery committed by him, she being the innocent and he the guilty party. As the divorce took place in 1825, the cause must be decided, so far as the divorce is concerned, upon the law as it stood then.
When the case of Burr v. Burr was before me as vice chancellor of the 4th circuit, I intimated that “ after a divorce for *211adultery, the wife being the complainant, is still entitled to be endowed of the lands of which her husband had been theretofore seised.” (10 Paige, 25,26.) But the case of Burr v. Burr not being a bill for a divorce for adultery, but only for a separation, or limited divorce for cruelty, did not call for a decision of this question. The dictum, though in direct conflict with a dictum of Vice Chancellor McCoun, in 2 Edw. Ch. Rep. 596, was not repudiated nor sanctioned by the chancellor, on the appeal, nor by any member of the court of errors when the cause was before them, though the general principles of the opinion were fully sustained. (7 Hill, 207.) It therefore becomes necessary now to meet the question and decide it.
The act of 1787, concerning dower, directs that there shall be assigned to the widow, for her dower, the third part of the lands of her husband, which were his at any time during the coverture. (1 R. L. 56.) This is the same as is declared by Little-ton, § 36, of Dower. (Coke Lit. 30, b. 2 Bl. Com. 129. 4 Kent’s Com. 35. Park on Dower, 47.) Three things must concur to entitle the widow to an estate in dower, viz. marriage, seisin of the husband, and death of the husband. The marriage must be a lawful one, from which a legitimate issue may spring, capable of inheriting the land of which the husband was so seised. And according to the elementary books, (2 Bl. Com. 130; 4 Kent’s Com. 54,) she must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed ; for ubi nullum matrimonii, ibi nulla dos. All the modern writers derive this doctrine from Coke Lit. 32, a, who limits the meaning of the term divorce a vinculo matrimonii to a divorce, rendering the marriage void from the beginning, as for precontract, affinity, consanguinity, &c., and not a mensa et thoro only, as for adultery. In speaking of a divorce a vinculo matrimonii, as depriving the widow of dower, the term must be understood as relating only to such divorce as makes the marriage void from the beginning, and which consequently bastardizes the issue. (Shelford on Mar. and Div. 706.)
The divorce in this case was granted under the 4th section *212of the act of 1813. (2 R. L. 198.) That section authorized the court of chancery, on the defendant’s being found guilty of the adultery charged in the bill, to decree “ that the marriage between the parties shall be dissolved, and each party freed from the obligations thereof, but such dissolution of the marriage shall not in any wise affect the legitimacy of the children thereof. And it shall be lawful for the complainant, after such dissolution of the marriage, to marry again as though the defendant were actually dead. But it shall not be lawful for the defendant, who may be so convicted of adultery, to marry again until the complainant shall be actually dead.” The dissolution of the marriage under a decree for a divorce for adultery, has no retroactive effect. It takes for granted that the original marriage was lawful. It operates only prospectively, and dissolves the marriage as to future transactions, only sub modo. It differs, therefore, in many respects, from the divorce a vinculo matrimonii, which Coke, and others after him, say puts an end to the claim of dower. That bastardizes the issue. (Shelford on Mar. and Div. 706.) The consequences of a divorce for adultery under the act of 1813, are similar to those arising from parliamentary divorces for the same cause. (Id. 576, 873, et seq.) In the latter the guilty party is not allowed to marry.
In Connecticut, a divorce for adultery is a vinculo matrimonii ; and all the consequences of divorce take place, except that the issue are not bastardized; and the wife being the innocent party is entitled to dower. (Reeve’s Dom. Rel. 208.)
The supreme court of Massachusetts, in Davol v. Howland, (14 Mass. 219,) held, that a wife divorced for the adultery of her husband, is entitled to dower in all the lands of which he was seised during the coverture, although he may have conveyed them before the decree of divorce. This latter case arose under the statute of Massachusetts of 1785, which gave to the wife divorced on account of the adultery of the husband, dower in any lands whereof he was seised during coverture, in the same manner as if he were naturally dead. The case, therefore, does not settle any common law principle, but the statute marks the sense of the people with respect to the rights of the *213wife under an injury of this kind. It would be a strange anomaly in the law, if the wife should be deemed to forfeit her dower, for seeking the relief afforded her by law for the infidelity of her husband. It is contrary to the analogy of the law, to permit the crime of one party to work a forfeiture of the rights of another.
It is clear, that at common law, a divorce for the adultery of the husband did not bar the wife of dower. (Coke Lit. 32, a.) Nothing short of a divorce a vinculo worked that consequence; and by divorce a vinculo, was meant a divorce declaring the marriage void from the beginning, bastardizing the issue, and placing the parties in all respects as if no marriage had existed. The act of 1813 did not authorize a divorce a vinculo for adultery, in the common law sense of that term. It did not make use of that term at all. It merely dissolved the marriage and freed the parties from the obligations thereof, but without impairing the rights which accrued under it, except so far as is specified in the 6th, 7th, and 8th sections. By the 6th section the separate estate of the wife, on a divorce granted for the adultery of the husband, is preserved to her; and by the 7th section it is vested in the husband, on a divorce for the adultery of the wife, in the same manner as if the marriage had continued. And by the 8th section it is declared that the wife being the defendant, and convicted of adultery, shall not be entitled to dower in the complainant’s real estate, nor to a distributive share in his personal estate, on his dying intestate. It would seem, therefore, that she being the innocent party, and the divorce being granted for his adultery, she would be entitled to dower. The 5th section, which provides for permanent alimony to the wife, and for the support of the children of the marriage, is not declared to be in lieu of dower, and has never been so treated in this state. (See Burr v. Burr, 10 Paige, 20 ; 7 Hill, 207; Cramer v. Lane, and Burr v. Lane, MS. decided by me as V. Chan. in April, 1846, growing out of the divorce in Burr's case.) The widow of Burr was there adjudged entitled to her permanent alimony for life, as a debt *214against her husband’s estate, and a distributive share of his personal estate, and dower in his real estate besides. In some of the states it is understood that the allowance by way of alimony, is declared to be in lieu of dower. (R. S. Verm. 326.) In others the dower is .reserved to the wife, and may be recovered immediately after the decree, as if the husband were naturally dead. (Mass, act of 1785.) I am satisfied that the maxim nullum matrimonium, ibi nulla dos, applies only to cases where the marriage never in fact existed, or has been declared void from the beginning. Under a divorce, therefore, granted for the adultery of the husband, in pursuance of the act of 1813, the marriage may be deemed so far continued, notwithstanding the separation, as to preserve the right of the wife to dower in the lands of which the husband was seised at any time during the coverture and prior to the divorce.
The second matter to be considered is the seisin of the husband. This must be of such an estate “ so as by possibility it may happen that the wife may have issue by her husband, and that the same issue may by possibility inherit the same tenements of such an estate as the husband hath, as heir to the husband of such tenements. Of such seisin she shall have dower, otherwise not.” (Litt. §§ 53,36. 2 Bl. Com. 131. Park on Dower, 79.) 4 Kent's Com. 38,39.) It must therefore be a seisin during the coverture and prior to the divorce, because of no other could the issue of the marriage by possibility inherit. If, therefore, the divorce annulled the marriage from the beginning and bastardized the issue, dower never could attach; because not only the maxim nullum matrimonium ibi nulla dos, would apply; but also the principle, that when the issue could not by possibility inherit to the husband, dower cannot be granted.
■ In the present case, the seisin of the husband during the coverture was shown, of an estate whereof the issue of the marriage could by possibility inherit to the husband. And in the third place, the death of the husband in 1845 was shown, thus establishing all the requisites to a perfect estate in dower.
*215The case has hitherto been treated as if it arose wholly under the act of 1813. The legal effect of the divorce is no doubt to be construed with reference to the law in force at the time it was granted ; but as the title to dower did not become consummate until the death of the husband, (Reynolds v. Reynolds, 24 Wend. 197,) it becomes necessary to see whether the law remained unchanged at that time.
The act in relation to dower (1 R. L. 740,) is merely a revision of the former law, and contains no alterations affecting the present question. The revised statutes in relation to divorces (2 R. S. 141 to 148) essentially changed the former law, and greatly enlarged the jurisdiction of the court of chancery with respect to this matter. Article two of this title (2 R. S. 141) vests the chancellor with power in certain specified cases, by a sentence of nullity, to declare void the marriage contract. Such divorce, beyond question, puts an end to the claim of dower, and bastardizes the issue. Article three (2 R. S. 144,) provides for divorces, dissolving the marriage contract for the adultery of one of the parties. Such decree does not bastardize the issue born or begotten prior to filing the bill, when it is exhibited by her; nor when born or begotten before the commission of the offence when exhibited by the husband; and it leaves the right of the wife to her own property when she is the innocent party, and the right of the husband to the property of the wife when she is the guilty party, in the same manner as though the marriage had continued, as was provided by the law of 1813. And in like manner it is provided by the 48th section, (2 R. S. 146,) that a wife being defendant, in a suit brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband’s real estate, or any part thereof, nor to any distributive share in his personal estate. The 49th section allows the complainant, when the marriage is dissolved, to marry again during the lifetime of the defendant, but prohibits the defendant convicted of adultery from marrying again, until the death of the complainant. The 4th article provides for separation of husband and wife from bed and board, or limited divorces, for certain acts of cruelty or abandonment on the part of the hus*216band. And subsequent sections provide for permanent and ad interim alimony, applicable to every case. Thus it will be seen, that there is no change in the law, affecting the present question. We have now three species of divorce, namely: 1. A divorce declaring the marriage null and void from the beginning, which answers exactly to the divorce a vinculo matrimonii, spoken of by Coke as putting an end to the claim of dower; 2. A dissolution of the marriage contract for adultery, partaking, in some respects, of the nature of a divorce a vinculo, but having a stronger relation to a divorce a mensa et thoro ; and 3. A separation, or limited divorce, being in short a mere divorce a mensa et thoro. When the marriage has been declared null under the first class of cases, it is conceded that the estate of dower and curtesy cannot exist. But it is believed that neither of the other divorces is incompatible with the existence of that estate.
The remaining questions grow out of an alleged compromise between the plaintiff and her husband Joseph Wait, about the time of the divorce. It seems that a parol submission was made by the plaintiff and her husband of matters in difference between them, and a parol award was made by them; after and in pursuance of which a writing was executed by the plaintiff and her husband, and delivered to Mr. Given, the counsel of one of the parties, and who was then the law partner of Mr. Cramer, and a bond and mortgage were executed by the said Joseph to the plaintiff in the penal sum of $700, conditioned to pay the plaintiff $30 a year for life, and in case of default of payment the whole to become due immediately. It was shown that Mr. Given had been dead some years. I think the judge was right in holding that the loss of the paper was not shown. Mr. Cramer should have been introduced as a witness to prove a search among the papers of him and Mr. Given. There was no room to raise a presumption of a release of dower, from the acts of the parties; because it was proved that their agreement was reduced to writing. That writing, if produced, would speak for itself.
*217The annuity of $30 a year was probably the alimony allowed to the wife by the agreement.
I think the cause was rightly disposed of at the circuit, and that the motion for a new trial should be denied.
New trial granted. *218daken, Ulster county. The cause was first heard before justice Watson, and was brought before the general term for a rehearing.