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In determining what is sævitia, by the ecclesiastical law, we find it stated in Evans v. Evans, (b) that it is necessary there should be a reasonable apprehension of bodily hurt. The court keeps the rule very strict. The causes must be grave and weighty, and show such a state of personal danger as that the duties of the married life cannot be discharged. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to that cruelty against which the law can relieve. The wife must disarm such a disposition in the husband by the weapons of kindness. (c)
This being the rule of the English courts, it would appear that divorces a mensa are placed, by the statute of New York, on rather broader ground. They are not only for cruelty, but generally for such conduct on the part of the husband toward his wife as renders it unsafe and improper for her to cohabit with him, and be under his dominion and control. Probably the word unsafe, in our statute, may mean the same thing as the reasonable apprehension of bodily hurt in the English cases. (d) It was considered, in the case of Barrere v. Barrere, (e) that the danger or injury must be serious, and the slightest assault or touch in anger was not, in ordinary cases, sufficient. It was likewise held, in that case, that
elty on the part of the husband under gross circumstances. Snow v. Snow, Consistory Court, London, Hil. 1842. Jurist, No. 6.1
(b) i Hagg. Cons. 35.
(c) 1 Ibid. 364, 409. 2 Ibid. p. 148. Neeld v. Neeld, 4 Hagg. Eccl. 363. Pothier, Traité du Contrat. de Mariage, sec. 509. 2 Mass. 150. 3 Ibid. 321, note. 4 Ibid. 587. Finley v. Finley, 9 Dana, 52. But it is cruelty, in judgment of law, if the wilful conduct of the husband exposes the wife to bodily hazard and intolerable hardship. D’Aguilar v. D’Aguilar, 1 Hagg. Eccl. 773.
(d) It has been so understood in Mason v. Mason, 1 Edw. Ch. 292. (e) 4 Johns. Ch. 187.
desertion for three years; (Laws, Conn., 1856, ch. 143,) and in Massachusetts, after five years. (Laws, Mass., 1857, ch. 228.)
1 Condonation of cruelty will be construed favorably to the wife. Bowic v. Bowic, 3 Maryl. Ch. 51. Reese v. Reese, 23 Ala. 785. Gardner v. Gardner, 2 Gray, 434. And to support her right to cancel her condonation, it is not necessary that the same injuries be repeated. Langdon v. Langdon, 25 Verm. 678.
2 Shaw v. Shaw, 17 Conn. 189. In this case the subject of cruelty is extensively examined. See a case in the House of Lords, Paterson v. Paterson, 12 E. L. & Eq. R. 19. David v. David, 27 Ala. 222. Sheffield v. Sheffield, 3 Texas, 79. Wright v. Wright, 6 Texas, 3 Shell v. Shell, 2 Sneed, 716. C- v. C- 28 E. L. & Eq. 603.
the separation need not be declared to be for any specific time, but may be left general and indefinite, with * liberty * 127
, to the parties to be reconciled when they please, and to apply to be discharged from the decree. The decree of divorce is always, by the canon law, sub spe reconciliationis. (a)
( The statute above referred to seems to have considered the wife as the only infirm party who stands in need of such protection, for it confines the divorce a mensa for cruelty, desertion, or other improper conduct, to such conduct in the husband;(6) but the English ecclesiastical law makes no such distinction, and divorces are granted on a bill by the husband, for cruel usage - by the wife. (c) Upon these separations from bed and board, the children that the wife has during the separation are bastards, for due obedience to the decree is to be presumed, unless the contrary be shown. (d) If, however, cohabitation between the husband and wife existed, the presumption of illegitimacy is destroyed. This is the general law; and when the New York Revised Statutes (e) declared that a child begotten and born during the separation of its mother from her husband, pursuant to a divorce a mensa et thorq, shall be deemed a bastard, it is to be taken, as I apprehend, subject to the same qualifications which accompanied the general rule.
These qualified divorces are regarded as rather hazardous to the morals of the parties. In the language of English courts, it is throwing the parties back upon society, in * the unde- * 128 fined and dangerous characters of a wife without a hus
(a) Burn's Eccl. Law, tit. Marriage, ch. 11, sec. 4. Oughton's Ordo Jud. tit. 215, sec. 3. Bynk. Q. Jur. Priv. b. 2, ch. 8.
(6) Van Veghten v. Van Veghten, 4 Johns. Ch. 501. By a statute of New York, of April 10th, 1824, ch. 205, sec. 12, the Court of Chancery was authorized to decree a divorce a mensa, on the complaint of the husband, and that provision is deemed to be in force, notwithstanding the subsequent general provision in the revised laws, confining that remedy to the wife. Perry v. Perry, 2 Paige, 501.
(c) Kirkman v. Kirkman, 1 Hagg. Cons. 409.
1 A single act of violence is not sufficient. It must appear that the husband will not be able to protect himself and family. Perry v. Perry, 1 Barb. Ch. 516. In Pennsylvania, a divorce may be granted, on the petition of the husband, " when the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable, or life burdensome.” (Penn. Laws, 1854, May 8.)
band, and a husband without a wife. The ecclesiastical law has manifested great solicitude on this subject, by requiring, in every degree of separation, an express monition to the parties “ to live chastely and continently, and not during each other's life contract matrimony with any other person ;” and security was formerly required from the party suing for the divorce, to obey the mandate. (a) The statute allows the husband, on such a bill by the wife, for ill-conduct, to show, in his defence, and in bar of the suit, a just provocation in the ill-behavior of the wife, and this would have been a good defence even without the aid of the statute. (6) And on these separations from bed and board, the courts intrusted with the jurisdiction of the subject will make suitable provision for the support of the wife and children, out of the husband's estate, and enforce the decree by sequestration; and the chancellor in New York may exercise his discretion in the disposition of the infant children, and vary or annul the same from time to time, as circumstances may require. (c)? I apprehend there is not, in the United States, any essential difference in principle, or departure from the doctrines of the English law on the subject of divorces a mensa et thoro. (d)
(a) Burn's Eccl. Law, tit. Marriage, ch. 11, sec. 4. Barrere v. Barrere, 4 Johns. Ch. 196, 198. Van Veghten v. Van Veghten, Ibid. 501.
(6) New York Revised Statutes, vol. ii. p. 147, sec. 53. Waring v. Waring, 2 Hagg. Cons. 154.
(c) New York Revised Statutes, vol. ii. p. 147, sec. 54, 55. Ibid. 148, sec. 59, 60. Barrere v. Barrere, 4 Johns. Ch. 197. In Shelford on Marriage and Divorce, pp. 592– 607, the cases are collected on the exercise of the equitable and discretionary jurisdiction of the ecclesiastical courts, in awarding permanent alimony to the wife, on decrees of divorce a mensa et thoro. In an aggravated case a moiety of the husband's property has been given.
(d) Reeve's Domestic Relations, ch. 16. Thompson v. Thompson, 2 Dallas, 128. Warren v. Warren, 3 Mass. 321. Statutes of Delaware, 1832, ch. 144.
1 He may also show a condonation. But a subsequent repetition of the personal abuse revives all those causes of separation which existed prior to the condonation. And slight acts of abuse, which of themselves would not sustain a bill, revive all antecedent acts of cruelty and misconduct. Calkins v. Long, 22 Barb. (N. Y.) 97.
: Ahrenfeldt v. Ahrenfeldt, 4 Sandf. Ch. 493. Battey v. Battey, 1 R. I. 212.
OF HUSBAND AND WIFE.
The legal effects of marriage are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union. (a) From this principle it follows, that at law no contracts can be made between the husband and wife, without the intervention of trustees; for she is considered as being sub potestate viri, and incapable of contracting with him; and except in special cases, within the cognizance of equity, the contracts, which subsisted between them prior to the marriage, are dissolved. (6) The wife cannot convey lands to her husband, though she may release her dower to his grantee; nor can the husband convey
(a) Co. Litt. 112 a, 187 b. Litt. sec. 168, 291. i Blackst. Com. 441. The jus mariti, where it is not restrained by special contract, exists with equal force and extent in the Scotch law. The husband acquires the same power over the person and property of the wife, and she is subjected to similar disabilities. Erskine's Inst. b. 1, tit. 6, sec. 19, 22. Stair's Inst. b. 1, tit. 4, sec. 13, 16.
(6) The disability of husband and wife to contract with each other is founded in the wisest policy, and is an essential muniment to the inviolability of the nuptial contract, and to the maintenance of the institution of marriage. The consequent dependence of the wife upon the husband, and the continued liability of the husband to support the wife, and the other incapacity of the parties, by their own mere will, to absolve each other from the reciprocal rights and duties which the law of their contract imposes upon them, furnishes powerful motives to the promotion of harmony and peaceful cohabitation in married life. Marshall J., in Simpson v. Simpson, 4 Dana (Ken.) 142.
1 Under the New York acts of 1848 and 1849, (see post, 130, n. 1,) it has been decided by the Supreme Court that a married woman can convey lands directly to her husband. Winans v. Peebles, 31 Barb. (N. Y.) 371. At special term a previous decision had been made against the power. Graham v. Van Wyck, 14 Barb. (N. Y.) 531. And subsequently another general term also decided against the power. White v. Wager, 32 Barb. (N. Y.) 250. And the question bas been finally settled against the power by the Court of Appea.g, in the case last cited on appeal. 25 N. Y. 328.
lands by deed directly to the wife without the intervention of a trustee. (c)2 The husband may devise lands, or grant a legacy to his wife, for the instrument is to take effect after his death ; and by a conveyance to uses, he may create a trust in favor of his wife, (d) and equity will decree performance of a contract by the husband with his wife, for her benefit. (e) The general rule is, that the husband becomes entitled, upon the marriage, to all
the goods and chattels of the wife, and to the rents and * 130 profits * of her lands, and he becomes liable to pay her
debts and perform her contracts. According to the plan of these general disquisitions, I cannot undertake to enter minutely into the numerous distinctions and complex regulations which appertain to the relation of husband and wife. My purpose will be answered if I shall be able to collect and illustrate the leading principles only; and that I may be able to do this clearly, and to the satisfaction of the student, I shall consider the subject in the following order :
1. The right which the husband acquires by marriage in the property of the wife :
(c) Co. Litt. 3 a. Litt. Ø 677. Martin v. Martin, 1 Greenl. 394. Rowe v. Hamilton, 3 Greenl. 63. Stickney v. Borman, 2 Barr (Penn.) 67. Shepard v. Shepard, 7 Johns. Ch. 60. But though such a conveyance would be void at law, equity will uphold it in a clear and satisfactory case. Wallingsford v. Allen, 10 Peters, U. S. 583. See infra, p. 162. But a court of equity has no jurisdiction, even with the consent of the wife, to transfer to her husband personal property settled in trust for her, and to be hers absolutely on surviving her husband. Richards v. Chambers, 10 Vesey, 580.
(d) Co. Litt. 112 a.
(e) Moore v. Ellis, Bunb. Rep. 205. Livingston v. Livingston, 2 Johns. Ch. 537. Shepard v. Shepard, 7 Johns. Ch. 57.
? Where the husband executed an attested instrument, giving and granting a freehold house to his wife: held, that the gift was incomplete, and the relationship of trustee and cestui que trust was not created. Price v. Price, 8 Eng. L. & Eq. R. 271.
To constitute a gift between husband and wife, there must be either a gift to a trustee for the wife, or the husband must devest himself of the property, and engage to hold it as trustee for the separate use of the wife. Mews r. Mews, 21 Eng. L. & Eq. R. 556. See Visk v. Cushman, 6 Cush. 20. post, (163.] It is held in Alabama, that the husband may at any time during his life revoke the gift of property which he has purchased, and holds as trustee for his wife. Gannard v. Eslava, 20 Ala. 732.
When the husband and wife are each next of kin to an intestate, each is entitled to a distributive share of the estate. The doctrine that husband and wife are one person in law, does not apply to such a case. Knapp v. Windsor. 6 Cush. 156. Under recent statutes in Maine, a husband may convey directly to his wife; and the property in a note passes to her by the husband's indorsement. Johnson v. Stillings, 35 Maine, 427. Motley v. Sawyer, 31 Maine, 540. And see Davis v. Herrick, 37 Id. 397.