ON MOTION TO DISMISS THE APPEAL.
Mr. Justice Wolvertondelivered the opinion.
1. The plaintiff, on January 27, 1896, obtained a decree of divorce against the defendant, and thereby the title to an undivided third of defendant’s real property. The defendant sought a divorce, also, by cross bill, which ivas dismissed. After an appeal had been perfected the defendant'died, and both parties, by their respective attorneys, upon suggesting his death, filed motions to dismiss the appeal, but for very different purposes. Counsel for defendant claims that his death abates the suit, and that this Court should dismiss the appeal, with directions to the court below to dismiss the suit, so that the relation of the parties would then stand as if no suit had ever been begun or decree rendered; while the plaintiff claims that defendant’s death abates the appeal only, and that the decree of the court below remains in full force and effect, as a final determination of the rights of the parties thereto. Neither position can be maintained. In Day v. Holland, 15 Or. 464 (15 Pac. 855), it was decided that under the Code procedure an appeal from a decree does not break it up nor vacate it, and that it may be carried into execution notwithstanding the appeal, unless stayed by a supersedeas undertaking. We are aware that there is a strong dis*3senting opinion in the cause cited, wherein cogent reasons are given why the old equity practice should still prevail in that regard, notwithstanding the innovations of the Code ; but we feel bound by the prevailing opinion, and are constrained to follow it as a precedent. It is provided by statute that “ No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue and that “An action for a wrong shall not abate by the death of any party, after the verdict has been given therein, but the action shall proceed thereafter in the same manner as in cases where the cause of action survives.” Hill’s Ann. Laws, §§ 38, 39. These appear to be all the statutory provisions pertaining to the subject.
It is quite apparent, from the very nature of things, that the cause of suit does not survive the death of a party where the only relief sought is a dissolution of the marriage relations, for death effectuates more surely the very end which it is the especial purpose of the suit to accomplish. As was said by Cotton, L. J., in Stanhope v. Stanhope, 11 Prob. D. W. 103, 105, “It would be a singular thing, if, after the marriage had been dissolved by death, there were power to déclare it at an end on another ground.” The authorities are uniform upon this proposition: See Barney v. Barney, 14 Iowa, 189; Wilson v. Wilson, 73 Mich. 620 (41 N. W. 817); Kirschner v. Deitrich, 110 Cal. 502 (42 Pac. 1064); Pearson v. Darrington, 32 Ala. 253; McCurley v. McCurley, 45 Am. Rep. 720. But, where the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself; but *4for the ascertainment of whether the property has been rightfully diverted from its appropriate channel of devolution. The present case furnishes a good illustration. Had the defendant died prior to the divorce, his real property would have descended to his heirs, subject to his widow’s right of dower, but under the decree she obtains an undivided one-third interest absolute therein, results of very different significance. So that the heirs have an interest in continuing the controversy to determine whether they have been rightfully or wrongfully affected in their property rights : See Thomas v. Thomas, 57 Md. 504; Downer v. Howard, 44 Wis. 82.
It has been suggested that the relief which the statute' affords by giving the prevailing party in the suit a one-third interest in the lands of the spouse is but an incident to the divorce, and operates as a penalty for a violation of the marital relations. And so it is, but it does not follow that the suit, after divorce granted, or even that the appeal, abates upon the death of a party thereto. At common law the general rule is that criminal actions abate with the death of the accused, but if the crime be that of treason, or felony which works an attainder, the heirs or personal representatives may prosecute an appeal to reverse the attainder (State v. Martin, 30 Or. 108, 47 Pac. 196), although the forfeiture is but an incident of the action. The cause was permitted to survive to prevent a wrongful devolution of the property of the deceased, should it appear that the judgment of attainder was erroneous. The analogy is apparent without elucidation. The clause of the statute preventing either party from contracting marriage with a third until the period allowed for the appeal has expired is a wise precautionary measure to prevent the evil results which might arise from conflicting marriage relations should the decree of the court below be *5reversed., but was not intended to suspend the decree. Such a decree has the “effect to terminate the marriage, ’ ’ and its finality must be governed and determined by the same rules as are applied in other suits in equity. From these considerations we conclude that the suit did not abate by the death of the defendant, except as it pertains to the cross bill, neither does the appeal, but that the cause and the appeal both survive to the heirs of the deceased, and they may prosecute the cause in this Court for the purpose of determining whether the divorce was rightfully granted, to the end that conflicting property rights as between them and the plaintiff may be settled and determined. Both motions will therefore be disallowed.
Motions Overruled.