Renwick v. Renwick

10 Paige Ch. 420 | New York Court of Chancery | 1843

The Chancellor.

The adultery of the defendant as charged in the bill is fully established by the testimony of several witnesses. The divorce must, therefore, be granted as prayed for ; and as no objection was made, upon the hearing, to the giving the care and custody of the children who had not arrived at the age of twenty-one to the mother, their care and custody must be committed to her until the further order of the court. Indeed, it is charged in the bill, and admitted for the purposes of this suit, that the defendant, several years since, abandoned his wife and family, and has contributed nothing to their support; and that the complainant has provided for the support and education of her children out of the income which she .has received from the estate of her father, under his will. She is of course entitled to a decree for costs against the defendant. And her counsel ask that the property which has been devised and bequeathed to her by her father, and the income thereof, may be decreed to belong to her, free from any claim of the defendant or his creditors or assigns thereon; and that the defendant may be perpetually enjoined from taking any proceedings to reduce the same, or any part thereof, to his possession, or to charge or impair her claim or title thereto, or from intermeddling therewith in any manner.

At the common law the interest of the husband in the real estate of the wife only continued during coverture ; and therefore if she was divorced a vinculo, she was entitled to her real estate immediately, in the same manner as if she had survived her husband. And if the husband had aliened the same during the coverture, she could bring her writ of cui ante divortium to recover the land. (Fitz. Nat. Brev. 204, 471. Coke Litt. 326.) And although the husband had sold his interest, which he obtained by the marriage in the real estate of the wife, or the land had been delivered over to a creditor of the husband, upon an extent, a divorce granted to the wife divested the title of the grantee, or of the tenant by elegit, in the same manner as if the marriage had been dissolved by the death of the husband. (Barber v. Root, 10 Mass. Rep. 260.) So in relation to all rights and cboses in action where it was necessary, during the coverture, that the action to- recover the same should be brought in the names of the husband and wife jointly, and where the right of action would survive to the wife or her personal representative in case the husband died first, upon the divorce of the wife for the misconduct of the husband they must, upon the same principle, belong to the wife, if the husband has not reduced the same to possession previous to the divorce ; in the same manner as if the coverture had been terminated by the death of the husband at the time the divorce was completed. And where the husband has forfeited all right to his wife’s property y by his wilful violation of the marriage contract, it is perfectly just and equitable that she should be permitted to retain for her own use, and for the education and support of the children of the marriage if there are any, all the real and personal estate which belonged to her at the time of the marriage, or which has come to her by gift, devise, or descent from any of her relatives during the coverture ; and which the husband had not recovered and reduced to his actual possession previous to the. commission of the offence for which the divorce is granted. (See Haviland v. Myers & Bloom, 6 John. Ch. Rep. 178 ; Van Duzer v. Van Duzer, 5 Paige's Rep. 368; Hake v. Fink, 9 Watts' Rep. 336 ; Gallego v. Gallego’s ex’rs, 2 Brock. Rep. 285.) The court of errors and appeals in the state of Mississippi went further than this, in the case of Tewksbury v. Tewksbury, (4 How. Rep. 109,) and decreed to the wife, upon granting a divorce on account of the adultery of the husband, a restoration of all the property which he had received by virtue of the marriage, although he had reduced it to possession.

The statute of this state gives to the wife, upon the dissolution of the marriage upon the ground of the adultery of the husband, as a matter of right, and without reference to the question of alimony, all the real estate of which the husband is then seized in the right of his wife, and of which she is the real owner ; and also any goods or things in action which were left with her by the husband, or were acquired by her own industry, or which were given to her by devise or otherwise, or to which she is entitled by the decease of any of her relatives intestate, as her sole and absolute property. (2 R. S. 146, § 46.) And the evident intention of the legislature was, not only to give to her such real estate discharged of the husband’s life interest therein, as tenant by the curtesy initiate, and her bedding, &c. left with her by the husband, but also all such choses in action, legacies and distributive rights, not collected or reduced to possession by the husband, as would have belonged to her by survivorship if the marriage had been dissolved by his death at the time of making the decree. If this does not cover the whole property to which she was entitled under the will of her father, except what the husband has received and spent or has reduced to possession and transferred to a bona fide purchaser previous to the time of the commencement of this suit, she is to be decreed to have whatever remains thereof; to" be applied to the support and education of such of the children of the marriage as are minors.

The decree therefore will declare her rights accordingly; and will award a perpetual injunction, restraining the defendant, and all others who may have acquired any right or interest in such property or choses in action under him since the commencement of this suit, from bringing or prosecuting any suit or instituting any other proceedings whatever for recovering or obtaining the possession thereof, or of any part thereof, or whereby the right or .interest of the complainant therein, as above declared, shall or may be in any wise changed or impaired, or from intermeddling therewith in any way whatever.