A decree of divorce may be reviewed after the death of a party, either on a writ of er ror; Israel v. Arthur, 6 Colo. 85; or appeal; Shafer v. Shafer, 30 Lich. 163. Stich a de cree was properly vacated and annulled lz,y the court, after the death of the husband who had obtained it, there being evidence of fraud and imposition on the ,part of the libellant ; Appeal of Boyd, 38 Pa. 241. A case con stantly cited to the effect that a divorce ob tained by fraud may be set aside after the death of a party has been properly char acterized as merely a dictum, since the deci sion was upon other grounds and that ques tion was not involved ; 57 L. R. A. 583, 589, note, where the cases to that date upon the right to contest the validity of a divorce de cree, after the death of a party, are collect ed and reviewed with discrimination. But where a divorce had been obtained by the plaintiff who subsequently died, a motion to set aside the judgment for fraud was prop erly denied and it was suggested that the proper course was an action in the nature of a bill of revivor bringing before the court all the heirs at law and others interested in the property left by decedent; Watson v. Wat son, 1 Hun Y.) 267 ; and to the same ef fect is Groh v. Groh, 35 Misc. 354, 71 N. Y. Supp. 985. These cases having been in New York, where the writ of error was abolished, the method of review suggested was doubt less the only one available. In Michigan, where the practice, it is believed, is very similar to that of New York, there is a sim ilar case ; Zoellner v. Zoellner, 46 Mich. 511, 9 N. W. 831; and a precisely similar case citing and relying upon the Michigan case is Roberts v. Roberts, 19 R. I. 349, 33 Atl. 872; and in a later Michigan case it was held that in simple divorce proceedings aimed at no independent relief after the death of one party, no decree could be made relating back to his lifetime; Wilson v. Wilson, 73 Mich. 620, 41 N. W. 817. Where the plaintiff in a suit for divorce dies pending the trial, be fore submission to the jury, if the issues are found in his favor, judgment of divorce will be entered as of the first day of the term while he was alive ; Webber v. Webber, 83 N. C. 280. Cases which hold that the action is of a personal nature and abates with the death of the party bringing it are Hunt v. Hunt, 75 Misc. 209, 135 N. Y. Supp. 39 ; Dwy er v. Nolan, 40 Wash. 459, 82 Pac. 746, 1 L. R. A. (N. S.) 551, 111 Am. St. Rep. 919, 5 Ann. Cas. 890 (where it held that the decree could not be set aside for want of jurisdiction); Wood v. Wood, 1 Boyce (Del.) 134, 74 Atl. 560 (where the court refused to make absolute a decree nisi and set it aside on the petition and affidavit of the defend ant suggesting the death of the plaintiff); In re Crandall, 196 N. Y. 127, 89 N. E. 578, 134 Am. St. Rep. 830, 17 Ann. Cas. 874; Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659 ; Hite v. Trust Co., 156 Cal. 765, 106 Pac. 102 ; but where the plaintiff died, after the entry of a interlocutory judgment by de fault, the court had power to render its final decree in accordance therewith after the death of the party ; John v. Superior Court, 5 Cal. App. 262, 90 Pac.. 53 (this being ex actly the reverse of the Delaware case cited).
Of those consequences which result from the direction or order of the court, the most important are: Alimony, or the allowance which a husband, by order of court, pays to his wife, living separate from him, for her maintenance. The allowance may be for her use either during the pendency of a suit, in which case it is called alimony pendente lite,-or after its termination, called perma nent alimony. As will be seen from the fore going definition, alimony, especially perma nent alimony, pertains rather to a separation from bed and board than to a divorce from the bond of matrimony. Indeed, it is gen
erally allowed in the latter case only in pur suance of statutory provisions.
A court has no authority to grant a de cree of divorce in favor of a libellant after he has moved the court that no decree be en tered; Milliman v. Milliman, 45 Colo. 291, 101 Pac. 58, 22 L. R. A. (N. S.) 999, 132 Am. St. Rep. 181; see, also, Adams v. Adams, 57 Misc. 150, 106 N. Y. Supp. 1064, where it appeared that the defendant had denied the marriage and the court refused to dismiss the suit on libellant's motion; Winans v. Wi nans, 124 N. Y. 140, 26 N. E. 293. See Milli man v. Milliman, 45 Colo. 291, 101 Pac. 58, 22 L. R. A. (N. S.) 999, 132 Am. St. Rep. 181.
As a general rule of practice, the uncor roborated evidence of a co-respondent is held not sufficient to grant a divorce ; Delaney v. Delaney, 71 N. J. Eq. 246, 65 Atl. 217, re versing 69 N. J. Eq. 602, 61 Atl. 266 ; Her rick v. Herrick, 31 Mich. 298 ; Evans v. Ev ans, 93 Ky. 512, 20 S. W. 605 ; but the court may act upon it, if satisfied that the story told is true • and that there is no collusion ; 21 T. L. R. 676; (1907) P. 334. The denial of the adultery by defendant and the co respondent is competent and, although of lit tle weight against clear proof, in the absence of it, was held sufficient ; Mayer v. Mayer, 21 N. J. Eq. 246.
A8 to the Effect on a Will. it has been held that a divorce alone does not revoke a previously executed will ; In re Brown's Es tate, 139 Ia. 219, 117 N. W. 260; Baacke v. Baacke, 50 Neb. 21, 69 N. W. 303 ; Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; Card v. Alexander, 48 Conn. 492, 40 Am. Rep. 187; L. R. 22 Ch. Div. 597 ; L. R. 25 Ch. Div. 685. It is said that it is probable that a divorce granted at the suit of the wife with alimony expressly decreed to be in lieu of all her rights in the property of her husband, testamentary and otherwise, would by im plication of law revoke the will of her hus band in so far as it made provision for her ; 1 Underhill, Wills 265. In a Michigan case it is held that when at the time a decree of divorce is granted, the parties to the action settle and adjust their property rights by mutual agreement, without mentioning wills theretofore made by them, the decree of di vorce and settlement constituted an implied revocation of the will so theretofore made. The court said that by the decree of divorce and the property settlement the parties be came strangers to each other, neither there after owing to the other either legal or moral obligations or duties, and that there was therefore a complete change in their rela tions, within the rule of implied revocation of wills; Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699, 35 Am. St. Rep. 545, followed in Donaldson v. Hall, 106 Minn. 502, 119 N. W. 219, 20 L. R. A. (N. S.) 1073, 130 Am. St. Rep. 621, 16 Ann. Cas. 541. In Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303, however, it was held that the doctrine of revocation by implication of law was based upon a pre sumed alteration of intention, arising from the changed condition and circumstances of the testator, or on the presumption that the will would have been different had it been executed under altered circumstances, and that a settlement of a woman's property rights upon obtaining a divorce from her husband does not work a revocation of a will previously executed by the husband.
As to questions arising from divorce re lating to the custody of children, see PAI1ENT AND CHILD.
By the civil law, the child of parents di vorced is to be brought up by the innocent party at the expense of the guilty party. Ridley's View, pt. 1, c. 3, § 9, citing 8th Col lation.