Ponder v. Graham
4 Fla. 23 (1851)

CAUSE OF ACTION: Petition to take dower in lieu of will

FACTS: Mary Buccles (respondent, Mary Graham) married Solomon Canady about 1828 in South Carolina, later moving to Georgia. They separated and she began to cohabit with Archibald Graham. In 1832, a bill was passed by the Legislative Council of the Territory of Florida, entitled "An act for the relief of Mary Canady," which divorced Mary from Canady. No notice was provided to Canady. Mary then married Archibald Graham. When Archibald Graham died, Mary elected to take dower in lieu of provisions in the will.

ISSUE: Whether the legislative divorce was invalid, thereby making Mary's divorce and subsequent marriage to Graham invalid and depriving Mary of a right to dower (widow's benefits).

RULING: Yes (the divorce was invalid, the marriage invalid, Mary could not take dower.)

• Rule 1:The legislature does not have power to grant divorces.
• Rule 2: Dower is only available to a widow (a woman legally married at her husband's death).

REASONING: While the legislature may make the rules of marriage and divorce, the granting of divorces is a judicial function. The court questions precedents from other states based on Parliament's alleged authority to grant divorces. [An issue at the time but not today] The principle of separation of powers embodied in both federal and state constitutions establishes these differences in function.

COMMENTS: Ponder v Graham states the function of the court in divorce well ahead of its time. While it may not be cited much in modern cases, it illustrates the difference in function between the courts and the legislature.

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