We think it was clearly the intent of the legislature, by the statutory provisions on the subject of dower, to confine the effect of adultery by the wife in barring her claim for dower, to cases in which such adultery is established by a judgment of the court.
It may well be doubted whether either of those provisions, (5 N. Y. Stat. at Large, p. 335, §§ 8, 48,) apply to a case which arises after a divorce has been obtained. Section 8 only applies to a case where the divorce is granted for the misconduct of the wife; and section 48 applies to a case where the defendant is convicted of the adultery in a suit for a divorce brought by the husband. ¡Neither applies to adultery committed, unless the wife is convicted of the'offence, if, upon the trial, the plaintiff fails, on account of condonation of the offence, there is no conviction.
Coke says: “If the wife is pardoned, before the death of the husband, she shall be endowed.” So., also, if she is reconciled to her husband, after elopement. The effect of condonation restores her right to dower, even if forfeited by the adultery; and "if such fact is found, in the divorce suit, the previous adultery works no forfeiture.
The order was right, and should be affirmed.