Opinion

Blandy v. Asher

  • 72 Mo. 27
Court
Supreme Court of Missouri
Filed
Apr 15, 1880
Status
Published
Author
Hough
On the bench
Henry, Hough, Sherwood
Cited by
7 cases
Authority
More cited than 3.0%

The opinion

Hough, J.,

Dissenting. — In Illinois, and perhaps elsewhere, it is provided by statute that the court which grants a divorce shall dispose of the homestead estate according to the equities of the case. Acts of Ill. 1871-2, p. 478, § 6. No court in this State is invested with any such authority. Our homestead act provides for the wife, and continues in her, in the event she should become a widow? the right so acquired and held by her as wife. But it makes no provision whatever for women who have been divorced. Brown v. Brown, 68 Mo. 396 . It is said, however, in the opinion of the majority, that the statute makes no distinction between an “ abandoned wife” and a “divorced wife.” There is no such person known to the law as a “ divorced wife.” The phrase is a solecism. When a woman is divorced, she is no longer a wife, and cannot be the widow of the person from whom she is divorced. Dobson v. Butler, 17 Mo. 87 . Such a person, therefore, cannot claim the benefit of the provisions made by the homestead law for wives and widows.

The position is also impliedly assumed, that as the statute gave Mrs. Asher a right to a homestead, and also gave her a right to a divorce, the exercise of her statutory right to obtain a divorce could not divest her of her statutory right to a homestead. As well might it be said that as the statute gives the wife a right to a homestead, and a *37 right also to join her husband in conveying it away, the exercise of her statutory right to convey will not destroy her statutory right to the homestead; The consequence of the exercise of a statutory right must, of course, depend upon the nature and legal effect of the right exercised. A strange condition of things would ensue under the ruling of the majority, if Lewis Asher, having a right to the custody of his children, should marry again and claim the homestead. I am of the opinion that the right of Alice Asher to a homestead ceased when she ceased to be the wife of Louis Asher.

Henry, J. concurs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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