Bowic v. Bowic

3 Md. Ch. 51 | New York Court of Chancery | 1850

The Chancellor :

This is an application founded on the third section of the Act of 1841, ch. 202, which authorizes the Court to separate the parties from bed and board, for “ cruelty of treatment and, upon a careful examination of the evidence, I am of opinion that the conduct of the husband prior to the first separation in 1847 would have entitled the complainant to relief to that extent. The remarks which fell from Mr. Chancellor Kent, in reference to the meaning of those terms as employed in the New York statute, show, I think, that the treatment which the complainant received at the hands of her husband, prior to 1847, amounted to that species of cruelty which entitled the wife to the interposition of the Court. He said, in Barrere vs. Barrere, 4 Johns. Ch. Rep., 189, that “mere petulance and rudeness, and sallies of passion, may not be sufficientthere must “ be a series of acts of personal violence, or danger of life, limb, or health,” to justify the Court in separating the parties. The proof relating to the conduct of the husband in this case, prior to 1847, establishes the charge of personal violence in repeated instances; and though it may have been, and probably was, the result of the too frequent use of intoxicating drink, that does not in any way diminish the title of the wife to the aid of this Court.

But it appears that, after the separation in 1847, the parties lived together, and I do not find in the proof that, between their reunion and the second separation in 1849, the defendant’s behavior towards his wife was such as to bring it within the terms of the Act of Assembly, as those terms have been construed by the Courts, that is, that he has been guilty of acts of personal violence towards her, or exposed her to danger of life, limb, or health.

There can be no doubt, and for reasons which are obvious, that the forgiveness of the wife of injuries inflicted upon her by her husband is not pressed with the same rigor against her as would the forgiveness of the husband of the misconduct of the wife be pressed against him. The difference between con-donation on the part of the husband and the wife, and the reasons for the difference, are stated in Shelford on Marriage and Divorce, 454, et seq.; and the authorities cited show that a much less stringent rule is applied to the wife than to the husband. But still, after the parties have become reconciled, the Courts are averse to reviving or listening to old grounds of complaint, which it were better should be forgotten, as well as forgiven.

In this view of the case, I am not much inclined to give weight to the evidence which speaks of the conduct of the husband prior to the first separation in 1847, and certainly it seems to me there is no ground to pronounce a sentence of separation between these parties for anything which has occurred since then. There is, moreover, a circumstance in this case worth considering, when the question is, with what degree of indulgence should the complainant’s reconciliation with her husband after 1847 be regarded. Condonation, say the books, with respect to a woman, is held not to bear so strictly, “because it is not improper she should for a time show a patient forbearance;” “she may find a difliculty in quitting his house or withdrawing from his bed;” “ she must submit to necessity;” — reasons which do not apply to the husband. She may have no means of support except under his roof; “and under such circumstances it -would,” says Shelford, “be hard to term submission mere hypocrisy.” In this case, however, it appears that this stern necessity, controlling the will of the wife, did not exist. The property upon which she and her husband lived was settled upon her by the will of her father; and although the husband may have certain rights in it, the existence and extent of which it is not at this time thought necessary to determine, it is supposed to be quite clear he has no authority to deprive her entirely of the beneficial enjoyment of it. Whatever may be the character of the estate created by the will of the complainant’s father, it would seem impossible to doubt, in view of the manifest intention of the testator to provide his daughter and her children a support from its products, that a Court of Equity would interfere for their protection, if necessary, against the wrongful acts of the husband.

Upon a careful consideration, then, of all the circumstances of this case, I cannot bring myself to think it would be proper to decree the separation of these parties. As was said in Coles vs. Coles, 2 Maryland Ch. Decisions, 351, “ The marriage-relation is not to be dissolved upon slight grounds; nor will parties be relieved from the duties and responsibilities it imposes, merely because there may be some want of congeniality in their tempers and dispositions.” “Public policy and morality alike condemn these partial dissolutions of the matrimonial union.”

This is not the ordinary case of a bill for a divorce and alimony. It asks not only for a divorce, but that the husband shall be excluded entirely from all benefit of the property provided by the father for the support of himself and his children. He has no other property, or means of subsistence, as may be fairly inferred from the record; and if the object of this bill be gratified, for aught that appears, he will in his old age be thrown upon the world in a condition of utter destitution. This is a result which the Court would be reluctant to occasion without a strong necessity; and when it is remembered that these parties have lived together, with short intervals, since the year 1824, and have reared a family of children — and when it is likewise remembered that the property in question, has been managed judiciously by him, and there is no charge that the profits resulting from it have not been applied to the support of his wife and children — the reasons which would induce the Court (assuming the power to exist) to take from him the whole benefit of it, and throw him out upon the world, it may he to beg or to starve, must be of controlling force. The habits of the husband have, no doubt, been had, and his conduct reprehensible in the highest degree; hut there certainly is evidence in the cause, drawn from witnesses whose inclinations would naturally have induced them to throw a veil over the painful subject, which establishes to some extent the recriminating charge in the answer, that the fault is not all on one side. I cannot entirely close my eyes against this proof; for, though it may not extenuate the conduct of the husband, it surely furnishes some defence against the complaint of the wife.

Richard J. Bowie, for the Complainant. John Brewer, and Cornelius M’Lean, for Defendants.

I shall, therefore, under all the circumstances of the case, dismiss this bill, hut without giving costs to either party.