66 Pa. 366 | Pa. | 1870
The opinion of the court was delivered, January 3d 1871, by
— In the year 1845, Alexander McClurg, an old man, a widower, and the father of a large grown-up family, married Margaret Caskey, a maid not young, yet of only half his years. The fruits of this ill-assorted match soon ripened, like Dead Sea apples, into ashes. Losses from unfortunate business connections, and crushing embarrassments, 'soured his temper and made him close and penurious. The means of .display withheld, and disappointed hopes, augmented by disagreements with his family, made. her unhappy and discontented. Disputes and bitterness ensued, followed by harshness, unkindness, and want of sympathy on his part, and all that unholy train of evils which mark an unequal marriage. As time sped on matters grew worse, and finally in June 1864,- Alexander McClurg separated from his wife, and has since continued apart from her. On the 9th of February 1867, Mrs. McClurg filed her libel for a divorce from bed and board, .and for alimony, on the grounds of a wilful and malicious desertion, without reasonable cause; and of such indignities offered to her person as rendered her condition intolerable and her life burdensome. After a full hearing, the court below granted the divorce, and decreed alimony to Mrs. McClurg in the sum of $1200. From this decree Alexander McClurg has appealed. The testimony is very voluminous; yet after a careful study of it, we cannot say that the court below committed any plain error. The desertion and its continuance are clearly proved, and so far as we can discover was without sufficient legal reasonable cause for it; while on the contrary he appears to have been
But it will be necessary to refer to the evidence on this point, in order to determine what weight,should be given to his offers to receive and provide a home for her, one of which was made before the proceeding for a divorce was begun, and ’the other during its proceeding. The evidence shows, that before her marriage Mrs. McClurg was a lively, pleasant, amiable and happy lady. She did not continue so many months after her union with Mr. McClurg. Her married life soon became full of trouble and discontent, her temper disturbed, and she was often found in tears. Taking the evidence as a whole, it would seem that he was unkind, spoke harshly at times, and uttered language to her in the presence of strangers, and even at the public table, calculate to wound and degrade a shrinking, sensitive mind, or to rouse one of a different temper to angry passion. A chief source of trouble between them was money. He accused her of extravagance, and she considered him penurious and stingy. He had been wealthy, but doubtless his circumstances for years demanded economy. But unless we conclude that she was base and dishonest beyond comparison, she did not receive sufficient means from him to provide for his large family and herself, while she expended all her own patrimony. The evidence is indubitable, that in her father’s lifetime she frequently came-to him, with tears in her eyes, entreating him for market money to supply the table; and-after his death her own fortune was expended in part, at least, in the endeavor to live. That she had a very ample estate, which diminished and finally vanished altogether under the incessant inroads made on her purse, is beyond denial. The attempt to show her extravagance by the bills, procured from the various persons with whom Mr. McClurg kept accounts, is only partially successful. . An examination of them, and of the testimony adduced-with- them, shows that many were general for the whole family,- while others show a separation between her accounts and his, plainly indicating that he suffered her to pay them herself, and evincing his own unwillingness to be charged with them; altogether corresponding well with the proof that she' expended her own estate largely in her own maintenance. The testimony of Dr. Fleming and Chas. H. Paulson, especially, exhibits not only an unwillingness of McClurg to pay debts for her of a proper kind, but a feeling also toward her very repulsive and calculated to wound and annoy. On
The offer contained in his letter of March 8th 1865, on its face refers to Mrs. McOlurg’s note of January 30th 1865, asking him his intention as to providing her a home. Plis reply of the same day (January 30th) displays a feeling on his part not adapted to invite her return to the same roof with him. Indeed he says in so many words: “ I have not, nor have I ever had, any intentions in the matter.” This is followed by the formal offer of the 8th of March 1865, in which he prefaces his. offer with a recital of grievances calculated rather to repel than to attract her. That was followed by another without date, but purporting to be written some eighteen or twenty months afterwards. The tone of this letter is rather kind, and displays much better feeling, and. had it not been both preceded and followed by bitterness and ill feeling, more weight would have been due to it. The next letter is the one signed by the counsel of Mr. McClurg, and dated August 10th 1868, during the pendency of the proceeding. It is, however, evidently the mere formality of legal instruction, and is combated by his own conduct too strongly to be looked upo» as a cordial and sincere invitation to a home. Just one week
In view of all these facts we are not able to say that the court below erred in disregarding these offers to return. It was a question for the court, whether the offers were made in all due sincerity, and with an intention bond, fide to perform his marital duty. An unmeaning formality cannot always be accepted as a genuine act, It may have the hand of Esau, and yet betray the voice of Jacob. It must be remembered that the desertion was on his part, not hers, and was fully proved. Her right to a divorce from bed and board and a maintenance had been fully established, and it was not to be arrested by a merely formal offer of reconciliation, contradicted by all the evidence as to its motive and its good faith. If the court believed it to be insincere, as they evidently did, it was due to Mrs. McClurg to give her the benefit of the decree to which she was entitled, leaving the defendant to his remedy under the Act of 26th February 1817, by petition or libel to offer to receive and cohabit with her again, and to use her as a good husband ought to do. Then the case would be brought fully within the power of the court, and justice could be done to both parties. It would be subversive of all just administration of justice, if when a case is clearly made out against the respondent, entitling the plaintiff to a decree, he could avoid it by the mere magic of a few words, without evidence of their frankness, and of his intention to remove the cause of complaint in truth and sincerity of purpose. Analogies may be found in the following cases: Kinsey v. Kinsey, 1 Yeates 78; Hollister v. Hollister, 6 Barr 452; Breinig v. Breinig, 2 Casey 161; May v. May, 12 P. F. Smith 206.
' In respect to the alimony, however, we think the decree of the court below is not supported by the testimony. In view of McClurg’s present circumstances, the sum seems to be excessive. It is fully shown that he is the owner of valuable property held
Williams, J., dissented.