dissenting. I am unable to concur in the conclusion reached by a majority of the court. Our laws justly require the husband to contribute to the support and maintenance of the wife, from whom he has by his misconduct been divorced, but to compel him to continue such support after she has remarried, and is living as the wife of another, is, as it seems to me, offensive to a proper sense of decency, and is degrading to him who succeeds to the conjugal relations of bus-band. In enlightened and refined communities, where the institution of marriage is one of the most sacred and delicate nature, the spectacle of a man, while occupying marital relations with a woman, asking a court of equity in her name to compel another man to pay for her support, is most unseemly, not to say revolting. This sentiment has found expression impliedly, in the English divorce courts, where, under statutes similar to ours, all decrees for alimony so far as I am aware, are in terms dura sola. Upon her marrying again, sh'e should, in my judgment, be held to have elected to rely upon a new source for her means of support, and to thereby have discharged her former husband from further obligation in that behalf. This principle underlies the pension laws in the United States, which provide that the pension to the widow of a deceased soldier shall terminate upon her remarriage, and such a provision has not, to my knowledge, ever been unfavorably criticised. For should a widow’s pension, any more than a divorced wife’s alimony, be regarded as a mere gratuity. It is based upon a sense of obligation on the part of the government in favor of the widow and children of one who has rendered valuable services to the country, and by whose death the wife is deprived of the means of support. The claims thus rest, essentially, upon the same basis of natural justice; and upon principle — whatever ought to be regarded as a sufficient ground for defeating the one should also be held to defeat the other.
The question involved in the present case must be decided, mainly as one of first impression, although it is not entirely without authorities bearing upon it, the weight of which I regard as strongly preponderating in favor of the proposition that a remarriage of a divorced wife defeats the continuance of alimony. The only two cases cited in the opinion of the court are Forrest v. Forrest, and Shepherd v. Shepherd, decided by the Supreme Court of Hew York, in general term. In the former case there had been no remarriage, and the question was therefore not raised nor considered, but the motion to reduce the alimony was denied, on the ground the statute did not allow the court to change the alimony fixed at the time when the decree was entered. In Shepherd v. Shepherd the wife had remarried, and the court followed the ruling in the Forrest case, and held that the remarriage did not take the case out of the rule. The opinions of that court are entitled to very great respect, but as the decisions referred to were not made by the court of last resort, the question cannot be regarded as finally settled in Mew York.
In Bishop on Marriage and Divorce, Vol. 2, page 479, the learned author, after referring to the Mew York cases, and the peculiar statute of Indiana, under which remarriage works no .forfeiture of alimony, says : “ But where alimony more nearly approximates the idea of the allowance which the ecclesiastical courts used to make the wife on a separation from bed and board (as under our statute it does), the result would appear to be different. For though the second marriage is no violation of duties, moral or legal, and is indeed a thing which the law approves, yet it has provided the wife with a new source of support, and thus has wrought a change in the condition and circnmstances of the parties.
In Albee v. Wyman, 10 Gray, 222, the court says : “ The application for divorce and alimony was her own affair, a voL, untary act of hers, instituted for her benefit. So long as she remained unmarried, no ground existed for lessening the amount for such alimony. By her subsequent marriage she secured herself other resources for her support, and thus voluntarily furnished the ground for the reduction of alimony.”
And that case was a stronger one than' the case at bar, for there the husband had covenanted, under articles of separation entered into prior to the application for divorce, to pay his wife . an annuity during her life, and alimony having been allowed on the subsequent divorce proceedings, which was fixed by ' agreement at the same amount as that stipulated for in the articles of separation. The wife having subsequently remarried, the court reduced the alimony to a nominal sum.
The only doubt expressed by the court was, not whether the marriage did not cut off the alimony, but whether it did not also have the effect to defeat any recovery on the articles of separation. The defeat of the alimony was not made to depend upon the ability of the second husband to support the wife, but is put upon the ground that because the wife had voluntarily taken another husband, she must look to him for future support. Certainly a decision made with the concurrence and approval of so eminent a jurist as Chief Justice Shaw and all the other judges, is entitled to much weight.
In the well considered case of Bowman v. Worthington, 24 Ark. 522, where the wife contracted a second marriage, the Supreme Court of Arkansas held that when a divorced wife marries again, she has no right to alimony or support from her former husband, either daring his life or after the death of the second husband.
Again, in Fisher v. Fisher, 2 Swab. & Tristam, E. 411, Sir Creswell Creswell says: “If she avail herself of the freedom conferred by the decree of this court, and marries again, it would be unreasonable to compel the former husband to support her.”
I am of the opinion, both upon reason and the weight of authority, that the remarriage of a divorced wife should be held to defeat the continuance of alimony. By the contract of marriage the husband assumes the duty and obligation to support his wife, and the law enforces this duty. If the husband is guilty of a breach of marital obligation sufficient in extent to justify a dissolution of the bonds of matrimony, the law does not, in consequence thereof, release him from his obligation to maintain his wife. But when the wife seeks and obtains a divorce a vinculo, and marries again, she thereby fixes upon another and different man the obligation to support and maintain her. I think the decision of the court below should be affirmed.