when the district attorney withdrew her, and she was not called until the next day, when she was offered as a witness, and upon examination found competent. It appeared that since the last adjournment of the court she had been instructed by a Christian minister. The defendant objected to her being sworn, because, as he contended, the knowledge of the nature and obligation of an oath must exist independently of the exigencies of the trial, and that it cannot be supplied for that purpose by special instruction. The practice has been various upon this question. In Rex v. Wil liams, Car. & P. 320, it was held that before a child is examined as a witness the judge must be satisfied that the child feels the binding obligation of an oath from a general course of religious education; and the effect of the oath on the conscience of the child should arise from religious feelings of a permanent nature, and not from instruction recently communicated for the purpose of a trial. In the course of the trial the counsel for the king states that it was every day's practice to put off a trial in order that a witness may be instructed as to the nature of an oath. Citing Rex v. Wade, 1 Moody Cr. Cas. 86. The oath however was refused the witness. This case has been criticised, and has not generally been followed. In Rex v. Nicholas, 2 Car. & K. 246, Pollock, C. B., refused to put off the trial in order that a child of six years of age might receive instruction, but said that there may be cases where the intellect of the child is much more ripened, as in the cases of children of nine, ten or twelve years old, for example, where their education has been so utterly neglected that they are wholly ignorant on religious subjects. In those cases a postponement of the trial may be very proper, but where the infirmity arises from no neglect, but from the child being too young to have been taught,' and that the judge should act in each case according to his discretion. In the English practice it is usual for the judge to examine an infant as to his competency before going before the grand jury, or before proceeding to trial, and if found incompetent for want of proper instruction, in his discretion, to put off the trial in order that the party may in the meantime receive such instruction as may qualify him to take an oath. Russ. Crim. Ev. 114; 2 Russ. Crim. Ev. 590; 1 Starkie Ev. (2d ed.) 94; Rex v. White, 1 Leach, 430; 2 Bac. Abr. 577; Rex v. Milton, 1 Car. & K. 61; Rex v. Baylis, 4 Cox, C. C. 3. The same practice is laid down in Greenl. Ev. (14th ed.), § 366, and cases cited. It is left discretionary with the court, where a principal witness offered is not sufficiently instructed in the nature of an oath, to put off the trial that this may be done. * * * The defendant in his bill of exceptions has given us no information as to the moral condition of the witness before she was called to testify, nor whether she had been instructed in religious knowledge to any extent.

We are not informed what her intellect was, nor how far it was ripened. All these considerations were before the judge, who examined the wit

ness before and after her instruction. If it had appeared to the presiding judge that the witness did not sufficiently understand the nature and obligation of an oath, we think that it was within his discretion to permit the child to be properly instructed, provided she was of sufficient age and intellect to receive instruction. But the real question arose at the time when she was called upon to take the oath. The judge must then have been satisfied that the witness at that time understood the nature of an oath, and the solemn responsibility which then rested upon her of speaking the truth. She was to say whether she understood the sanction of an oath, so that she could be a witness, and the jury were to determine whether they believed her evidence. Regina v. Hill, 3 Cox Crim. Cas. 259; Kendall v. May, 10 Allen, 64. The question of competency depending upon the facts in evidence was to be decided by the court. Where therefore the judge had examined the witness, found her competent to be sworn, and she was permitted to testify, we think that the defendant could not object upon the ground that she had been instructed by a Christian minister since the last adjournment of the court."

In Lake Shore & M. S. Ry Co. v. Spangler, Ohio Supreme Court, October 19, 1886, it was held that it is not competent for a railroad company to stipulate with its employees at the time, and as part of their contract of employment, that liability for injuries caused to them by the carelessness of other employees, shall not attach to it. The court said: "Is it competent for a railway company to stipulate with its brakemen, at the time and as part of their contract of employment, that the company shall not be liable for the negligent acts of its conductors? Western, etc., R. Co. v. Bishop, 50 Ga. 465, is cited, with other decisions of the same court affirming and following it, in support of the affirmation of this proposition. In that case it was held that such a contract, so far as it does not waive any neglect of the company, or its principal officers, is a legal contract, and binding upon the employee. But McCoy, J., speaking for the court, says: 'We do not say that the employer and employee may make any contract- we simply insist that they stand on the same footing as other people. No man may contract contrary to law, or contrary to public policy or good morals, and this is just as true of merchants, lawyers and doctors — of buyers and sellers, and bailors and bailees as of employers and employees.' This invites us to inquire whether and to what extent the contract we are dealing with is effected by consideration of public policy. It is maintained on behalf of the company that 'a rule absolving the company from liability to the brakemen for negligence of the conductor may operate to constitute the brakeman a sort of police; may induce them to be more watchful, and report to their superiors the delinquencies of the conductor; and if they are unwilling to do this, they, and

-

In

deed of trust he acted colore officii, and his sureties were bound for any of his official derelictions. ruling thus the sureties were not held liable beyond the strict letter of their contract.

Here however a widely different case is presented. Parties by a private contract appoint beforehand whosoever, at an indefinite time in the future, may happen to be sheriff, to sell land under a deed of trust in case, etc.

Who conferred authority on these private individuals to engage the liability of third persons, who happened to be sureties on a sheriff's bond? Suppose that the sheriff should fail to act in such case, would action lie on his bond for his failure in this regard? Clearly not. And why not? Because the law did not at the time the sheriff gave bond and entered upon the duties of his office charge him or his sureties with any burden which private individuals might see fit to agree among themselves to cast upon him; nor did his sureties by their signatures to the bond of their principal sanction on his part, or assume on their own, any such obligation.

The authorities cited for defendants, as well as reasons the most obvious, fully sustain the action of the trial court, and the judgment is affirmed.

All concur.

A wife who has obtained a divorce on the ground of her husband's adultery is not his "widow" within the meaning of the statute of distributions, and has no right to a distributive share in the personal estate of her divorced husband upon his death intestate.

APPEAL from judgment of General Term, fifth de

partment, affirming a decree of the Surrogate's Court of Erie county, which adjudged that petitioner was not a necessary party or entitled to notice of proceedings for probate of the will of her divorced husband.

Louis Marshall, for appellant.

S. S. Rogers, for respondent.

FINCH, J. A statutory construction unchallenged for more than half a century is assailed on this appeal. That a divorced wife, however innocent, has no right to a distributive share in the personal estate of her divorced husband, upon his death intesiate, has been conceded until a very recent period, but is now asserted to have been all the time a mistake, which should be at last corrected.

A single provision of the statute relating to divorce gives color to the construction sought. Where the decree is founded upon misconduct of the wife, it is expressly provided that "she 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. Ou the theory that this was a needed provision to bar the guilty wife of dower, it is argued that it was thought also a needed provision to bar distribution, and the inference is drawn, that without such prohibition, or where, by reason of the divorced wife's innocence, it could not apply, the Legislature supposed she would be so entitled and intended to leave her when free from fault in the possession of both rights to their full extent. But it is quite evident that we have here an unnecessary and superfluous provision as *Affirming 37 Hun, 152.

it respects dower. In a previous part of the Revised Statutes (vol. 1, § 8) it had already been declared that in case of a divorce dissolving the marriage contract for the misconduct of the wife she shall not be endowed. This provision was needed to cut off the inchoate dower of the wife in property of the husband acquired prior to the decree, and was useless beyond that, and so operative for that purpose only. The added provision of section 48 was therefore needless. It is conceded to have been a mere "repetition," having no excuse except that over-caution which is sometimes as dangerous as neglect. In the same statute there is a second instance of the same superfluous legislation. It is provided that the dissolution of the marriage contract shall not affect the legitimacy of the children. 3 Rev. Stat. (5th ed.), §§ 56, 57.

In Wait v. Wait, 4 N. Y. 92, it was said of this provision: "No one however will pretend that such a provision, though for greater caution it may have been wise to adopt it, was in fact necessary," and the court admitted that this needless case bore "to some extent" upon the prohibition of dower in section 48. There were thus, concededly, two instances of needless caution in the statutes under consideration, and others ought not to surprise us. Ascertaining that the clause relating to dower was useless, we may expect to find that equally true of the following one relating to distribution. The revisers omitted it in their draft, but the Legislature added it. At that time no right to distribution had ever been conceded to the divorced wife, but the law had been administered to the contrary; and with the full knowledge of that fact in the mind of the Legislature, it is difficult to conceive an intent to change the rule in so important a matter left to be evidenced merely by an indirect inference and not affirmatively and expressly declared.

The rule as it then stood rested upon very clear and definite grounds. The statute of divorce began with a provision permitting a marriage to be annulled for specific reasons. In such case no marital rights could exist on either side since the decree adjudged that a lawful marriage had never existed. But then came provisions for a dissolution of the marriage contract. In such case the contract is ended and terminated by the decree of the court. The relation of husband and wife, both actual and legal, is utterly destroyed, and no future rights can thereafter spring out of or arise from it. Existing rights already vested are not thereby forfeited, and are taken away only by special enactment as a punishment for wrong. But future rights, dependent upon the marital relation and born of it, there can be none. Thus the wife's dower at the date of the decree is vested as an inchoate right, at least, as against the husband whether she be innocent or guilty, by the concurrence of marriage and seisin. It has fastened upon the land and follows it as an incumbrance and would become consummate upon the death of the husband in either event, but for the express mandate of the statute which forfeits it where the wife is the guilty party. But the wife, although blameless, acquires no dower right in lands conveyed to the husband after the divorce, because he was not seised during the coverture. Kade v. Sauber, 16 Abb. Pr. (N. S.) 288. The coverture is ended and cannot serve to found a new right after its destruction. The exhisting inchoate right remains because it has already accrued, has not been forfeited by guilt, and does not depend upon the continuance of the marriage relation, but independent of that continuance becomes consummate by the death of him who was the husband when it sprang into being. For the same reason that future rights, dependent for their origin upon the marriage relation, cannot arise after its dissolution, and which prevents the innocent wife from having dower in her busband's after-acquired lauds, it follows that she can

have no distributive share in his personalty. At the date of the decree she has no existing right in his personal estate. That is his. No fraction of it and no lien upon it are hers. He may sell it without her consent, give it away if he pleases, and bequeath it at his own free choice. If it remains his at his death then the wife, if the marriage relation exists and has not become sundered, becomes "the widow" named in the statute of distribution, and at that moment for the first time arises her right in the personal estate dependent upon the existence of the marriage at the husband's death. Administration is given first, "to the widow." The law contemplates the possible existence of but one, and makes no provision for a struggle of priority between two or more. To "the widow" is given one-third of the personal estate, and all the other provisions allowing her occupation of her husband's house, and setting apart for her specific articles of household use, indicate the understanding of the Legislature that she only was "the widow" who held to the deceased at the date of his decease the relation of wife. Otherwise the statutes meant to be both just and generous become fomentors of discord and plan for bitterness and war. The divorced wife is not "the widow." She may be the lawful wife of another man and the deceased may have lawfully remarried in another State, or by permission of the court in this, and it would follow, if the appellant is right, that a woman may be a widow although her lawful husband is living, and that an intestate may leave two widows with equal rights to administration and distribution. Suppose that with unusual activity he should leave four, how would each get one-third of the personalty? And were the children of any account in the scheme of distribution? In one event "the widow" is entitled to the whole surplus. The appellant's counsel solves the struggle by applying to the later wives, with a sort of grim humor, the maxim caveat emptor, but the suggestion is not quite adequate to unsettle the law and unite at desired points a severed bond. When the court dissolves the marriage contract at the suit of the innocent wife, it is authorized to decree the payment to her of a suitable allowance. And why is that? If any marital right continues after the divorce the wife remains entitled to her support and may enforce it in the ordinary way. On the contrary the statute recognizes that when the marriage tie is broken and the relation ended no future rights will remain to the wife and no further obligations bind the husband which have their root in the marriage relation. The court is authorized to give by its decree in the form of an allowance a just and adequate substitute for the right of the innocent wife which the divorce cuts of and forbids in the future. The tribunal granting the decree investigates the husband's financial condition, takes proof of the value of his property, and then makes a suitable allowance for her life, and so puts the decree and its power in the place and room of what is lost in the future.

If, because the wife is innocent, the marriage relation in any degree subsists as against the husband we must confront the anomaly of a contract adjudged to have been dissolved and remaining not dissolved as to one of the parties, and read in the decree that both sides are freed from the obligations of the marriage contract when the court pronouncing it knows it to be false since some obligations of the husband will remain. The distinction drawn on behalf of the appellant between rights and obligations does not relieve the difficulty, for it is impossible to conceive of a right of the wife which does not impose upon the husband a corresponding obligation. The true theory of the statute is, that from the date of the decree, no ex

isting and vested rights are forfeited, except by the express mandate of the statute, but since the marriage contract ends and the relation terminates, no future marital right or obligation can arise for or against either. In place of them stands the decree of the court, looking beyond the bond it is about to sever, recognizing the inevitable consequences to follow the uplifted arm, and providing for the innocent wife or husband by its own mandate that reparation which after the decree is possible from no other

source.

Nothing decided in Wait v. Wait, supra, upon which the appellant so much relies, is at all to the contrary. The question there was over the right of the innocent wife to dower in the lands of which the husband was seised before the divorce, and therefore during coverture. The argument against that right assumed as not open to contradiction that the divorce ended the marriage, so that none of its future rights or obligations could survive, and then sought to show that the wife's inchoate dower was a mere possibility or expectation having no tangible existence until in the future following the decree. This court met the argument exactly at that point, and asserted as the sufficient answer, what we have already pointed out, that the wife's dower, by the concurrence of marriage and seisin, attached to the land as a fixed and vested right not to be shaken off unless by her consent or some de clared forfeiture or decree of the sovereign power, and then argued that the dissolution of the marriage oper. ated prospectively only, and so had no retroactive effect upon a right already vested. Observe that the ground taken was not that the marriage relation in any respect survived the divorce. If it had been the argument founded on the character of the inchoate dower as a vested right would have been pointless and unmeaning. And while there are in the opinion expressions indicating a belief in some sort of continuance of the marriage relation after the decree, they were unessential to the decision and were not the ground upon which it stood.

The further argument of the appellant rests upon the statute against bigamy, and our construction of it in People v. Faber, 92 N. Y. 146. The statute relating to divorce prohibits the guilty defendant from marrying again, and a clause to that effect is usually inserted in the decree. This was needless, and another instance of superfluous care, if the marriage relation survived the divorce as against the guilty party, and the express prohibition is here an argument against that theory, of equal character and force with that derived by the appellant from section 48. But in spite of the prohibition and because the divorced husband no longer had a wife living, it was held in People v. Hovey, 5 Barb. 117, that his after marriage, although punishable as a contempt, did not constitute the crime of bigamy. We overruled that decision, but not at all upon the ground that the divorced wife remained the culprit's wife in any sense or respect, but for the reason that the statute by its express words disclosed an intention to make the crime of bigamy consist not only in marrying a second time while the first wife was living, but in so marrying while under the prohibition of the law, and during the life of the woman who had been the wife before the decree of divorce. We construed these specific words as intended to force such a case into the meaning of the statute which without them would not at all have em. braced it, and without them would have led us to affirm People v. Hovey. Surely nothing was further from our thoughts and from the careful reasoning of the opinion than an idea that the divorced wife remained a wife as to the defendant, and that he was a bigamist for that reason. We held him to be such be