The statute concerning divorce, contains, among others, the following provisions:
“ Sec. 1st. The Superior Court shall have exclusive jurisdiction of all petitions for divorce, and may grant divorces *424to any man or woman for the following offences committed by the other party, '* * * *.
“ Sec. 2d. The party aggrieved may prefer a petition to the Superior Court, * * * * and, on proof of the allegation, said court may grant a divorce, and declare the petitioner single and unmarried; and the parties divorced may then marry again.”
“ Sec. 5tli. The Superior Court may assign to any woman so divorced, part of the estate of her late husband, not exceeding ono-tliird, and may change her name.”
Wo are asked to say that these provisions confer upon the Superior Court power to assign at its discretion, to a woman divorced for her own fault, one third part of her late husband’s estate.
Although the expression “ any woman so divorced,” taken by itself, seems to be broad and all-inclusive, yet the act read as a whole furnishes good foundation for the belief that only those husbands who are divorced for their own violations of the marriage contract are to be punished by such diminution of their estates; for instance, the sixth section provides as follows: “ When any married woman shall have derived from her husband, in consideration of their marriage, or of love and affection, any estate, and her husband shall thereafter be divorced from her on the ground of her misconduct, the court may decree that such personal estate remaining in her possession, and such real estate standing in her name, shall thereafter belong to him.”
Hereby the legislature strips the guilty wife of all the estate which she may have received upon certain specified consideration from her husband, and returns the same to him. This can mean nothing in reality if she can immediately reclaim even a greater sum under another section of the same act. We can hardly attribute to the legislature the intention of providing simply for an exchange of estates.
Chief Justice Reeve, in his work on Domestic Relations, page 208, says as follows. “ In all cases in which the Superior Court in this state has jurisdiction in matters of divorce, the divorce is a vinculo matrimonii; and in none of them is *425the issue bastardized. The court, when it divorces on account of the fault of the husband, hath power to assign to the wife forever part of the husband’s estate, not exceeding one-tliird, whether it is real or personal property.” He leaves no trace of a suggestion that the court had ever exercised or claimed the right to assign to the guilty wife any part of her husband’s estate-
Chief Justice Swift, in the first volume of his Digest, page 25, writing upon the subject of divorce, is likewise silent upon this important point. Bishop, in his Marriage and Divorce, Yol. 2d, sec. 377, says: “ It moreover follows from these principles that when the wife is the offender she cannot have alimony on a divorce decreed in favor of the husband. So long as he has committed no breach of marital duty he is under no obligation to provide her a separate maintenance, for she cannot claim it on the ground of her own misconduct.”
All this, coupled with the fact, that, so far as we-know,tlie profession in this state has refrained for nearly a century from making the request now preferred to us, has even more weight than a positive judicial precedent against it, and compels us to deny it.
We are referred to the action of the legislature in the case of Thaddeus King, Yol. 1, Lotteries and Divorces, page 288, in May, 1787. There King included in his petition for divorce a request that a portion of his estate should be set to his offending wife. Also to the case of Sarah Wolcott, Vol. 1, Crimes and Misdemeanors, page 199, October 1774. We think that in this case the marriage was the result of the fraud of a third person who caused letters to be sent to each of the parties purporting to come from the other. Upon discovery the parties were divorced; they were equally free from fault; and a portion of the property Avhich the wife brought to her husband was returned to her. Under these circumstances these cases fail to have much weight as precedents. It is said that the clause in the statute, “ the Superior Court may assign to any woman so divorced part of the estate of her late husband,” &c., was first framed for and found a place in an act for the prevention of incestuous and unlawful *426marriages, passed in 1702; was taken from that act in 1821 and made part of the act concerning divorces; that in its original place it included all women referred to in that statute; and that an equally broad construction should he given to it in its changed position.
It doubtless was quite just and politic that when legal separation followed an incestuous marriage, both. parties being equally guilty, each should have a share of the property. But, when the provision is transplanted and made part of a plan for granting a divorce for the fault or the guilt of one party only, the reason for the division of property wholly fails; and we must read the section in the light of its new surroundings. We are reminded also that the courts in Ohio, Illinois, Iowa and other states, have assigned upon divorce to the guilty wife a portion of her late husband’s estate; but this is done under statutes which in express words authorize such action, or under statutes which much more certainly give warrant for it than does our own considered as a whole.
We think that it is our duty to follow the legislature in this matter, rather than to expand the present statute by inference. We therefore advise the Superior Court that it has not the power to assign to a woman divorced for her own fault or guilt any part of the estate of her late husband.
In this opinion the other judges concurred.