24 N.H. 564 | Superior Court of New Hampshire | 1852
The term alimony, as used in the constitution and statute of this State, means that provision or allowance which is made to a wife upon a divorce from the bonds of matrimony. It does not embrace other classes of cases, as is sometimes the fact in the English practice. Parsons v. Parsons & al., 9 N. H. Rep. 309.
The decision of all causes of divorce and alimony is given to this court by the constitution; and the statute regulating the whole matter confers upon the court the most ample powers. Constitution of N. H., part 2, § 76; Rev. Stat., chap. 148.
The section of the statute which applies particularly to the question before us is as follows : “ Upon any decree of nullity or divorce, the court may restore to the wife all or any part of her lands, tenements and hereditaments, and may assign to her such
Several other sections are to be found in the same chapter, showing that it was the intention of the Legislature that the court should exercise a very broad discretion in relation to the whole subject; that they should, as was expressed in the act of 1791, do what they may think just and reasonable, “ all circumstances duly considered.”
It is evident, too, that it was the intention of .the legislature that the court should not be governed by strict rules of evidence or practice. Hence in the ninth section it is provided that, “ upon any hearing for divorce, the admission of the marriage, by the party against whom the process is instituted, general repute, the fact of cohabitation, or any other circumstantial or presumptive evidence from which the marriage may be inferred, shall be competent evidence for the consideration of the court.”
It is conceded in the argument that this court have, by virtue of the thirteenth section, made orders restoring to the wife her own property brought to the husband by the marriage, even where she is the guilty party and the decree of divorce' is against her. And this we think to be entirely correct. It is not too much, to suppose that there are those who would enter into the marriage relation solely with the view of possessing themselves of the property of their wives; and who would readily sacrifice their virtue, if by so doing they could break up the marriage contract, and at the same time retain the property of which they had gained possession. Nor is it too much to suppose that a weak-minded woman might become the victim of an artful and unprincipled husband; and yet in such a way that it would be impossible to produce any evidence implicating him in her fall. To cast such a woman destitute upon the world would be doing
But if by this section of the statute the court in their discretion have the power to restore to the wife all or any part of her lands, upon a decree of divorce against her, it cannot be doubted that they have, by the language of the section, also, power to assign to her such part of the real and personal estate of her husband, or order him to pay such sum of money as may be deemed just and expedient. And from an examination of the whole chapter, we think that such should be the construction put upon the section; that by it the court have the power, and, upon a proper case shown, should award alimony to the wife out of the property of the husband, even though the decree of divorce is against the wife.
We think, also, that a proper case is here made out. An examination of the evidence satisfies us that the libellant is not to be regarded with much favor in this controversy. We had some hesitancy at first, whether we would consider the evidence tending to refute the truth of the charges in the libel; but upon examining several sections of the chapter upon the subject, and finding it stated in the last section that the court, upon proper application and notice to the adverse party, may revise and modify any order made by such court, and may make such new orders as may be necessary we think it may be considered. If the orders may be revised, the evidence may be re-considered.
This question has been similarly settled in other jurisdictions, although we are aware that in a matter of statutory regulation, authorities are not much to be relied upon. A slight discrepancy in the phraseology may cause a marked difference in the decision. The authorities, however, to which we refer are, Fulk v. Fulk, 8 Blackford’s Rep. 561; Peirce v. Peirce, 6 B. Monroe’s Rep. 496; Wren v. Morse, 2 Gilman’s Rep. 72; and Bascom v. Bascom, Wright’s Rep. 632.
Our opinion, therefore, is, that the prayer of the petition should be granted. The amount that shall be awarded we will 'consider. It is stated that the property of the libellant is in
Petition granted.