72 N.J. Eq. 50 | New York Court of Chancery | 1906
I agree with the learned master in the result at which he has arrived that the defendant willfully deserted the petitioner on the 29th day of June, 1898, and that such desertion and its continuance from that time was willful and obstinate. But I am unable to agree with him in his conclusions—first, that the evidence warrants the presumption that the defendant was, at the time of the hearing before him, dead; and second, that our statute regulating presumptions in such cases has any application to the present case. The evidence is clear that the petitioner heard of her husband, and had reliable information that he was
The statute of this state (1 Gen. Stat. p. 1187; P. L. 1895 p. 751) is as follows:
“That any person, whether a resident of this state or not, who shall remain beyond sea, or absent himself or herself from this state, or from the place of his or her last-known residence, or conceal himself or herself in this state, or in the place of his or her last-known residence, for seven years successively, shall be presumed to be dead, in any case wherein his or her death shall come in question, unless proof be made that he or she were alive within that time; but an estate recovered in any such case, if in a subsequent action or suit, the person so presumed to be dead shall be proved to be living, shall be restored to him or her who shall have been evicted, and he or she may also demand and recover the rents and profits of the estate during such time as he or she shall have been deprived thereof with costs of suit; provided, however,” &c.
Now, it seems to me tliat tlie very reading of that act shows that it was intended to apply wholly to cases where property rights were involved, arising out of descent or succession, and that it is impossible to apply it to the present case. This is too plain for argument. Notice the words, “in any case wherein his or her death.shall come in question.” Now, the death of the defendant did not come in question in this ease. It was not an issue raised by the pleadings, and whatever evidence is found in the case tending to show an absence of seven years came out incidentally. It seems to me to approach the absurd to hold that a married woman becomes a widow to all intents and purposes as soon as her husband has absented himself from the state for seven years. Our Crimes act (P. L. 1898 p. 808 § 52), which relieves an innocent spouse whose husband has absconded, and who, on
In some other states of the union the section of the statute above cited, relieving an innocent spouse from criminal prosecution, is accompanied with other provisions giving the issue of such a marriage a sort of legitimacy. This subject was considered by the supreme court of Massachusetts in an opinion delivered by Chief-Justice Gray in 1874. Glass v. Glass, 114 Mass. 563. There a party, situate as is the petitioner here, married a second time; both she and her husband believing that the first husband was dead, and founding their belief on his absence for seven years. He afterward appeared, and the second husband brought suit for a declaration of nullity. The learned judge, in delivering judgment, used the following language: “It must be assumed, upon the report of this case, that the second marriage was contracted by both parties in good faith and with the full belief that the respondent’s former husband was dead. As he had been absent for seven years, they might not be guilty of polygamy. Gen. Stat. 1860 c. 165 §§ 4, 5. But as he was in fact still living, and the first marriage had not been dissolved by a decree of divorce, the respondent was in law his wife, her second marriage was unlawful, and the information which both parties to it had on the former marriage, and of the circumstances connected with the absence of the former husband, cannot estop either to apply to the court for a decree of nullity.” The case of Burkhardt v. Burkhardt, 63 N. J. Eq. (18 Dick.) 479; 52 Atl. Rep. 296, properly understood, is not inconsistent with this view. There the husband sued his wife for a decree of nullity by reason of her previous marriage contract with one Iloeger. The wife’s
It seems to me that the distinction between the two cases is clear enough, and that it is the duty of the court to grant relief in such cases and relieve the deserted spouse from an equivocal position. The references cited from Professor Bishop and the case of Glass v. Glass were not brought to the attention of the court in Burkhardt v. Burhhardt, and I take the liberty of saying that anything said by the court in that case in conflict with those authorities was not law, and was, as before remarked, mere obiter. It must be borne in mind that, in the absence of direct proof of death, the possibility of the life and return of the absent spouse exists, precisely as it did in the Massachusetts ease; and if in this case the petitioner, relying upon a decree of dismissal entered upon the advice of the learned master, should marry again
If it be said that it is inconsistent with fundamental principles to grant a divorce against a dead man, the answer is twofold: First, there is no certainty, in the ordinary sense of that word, that the defendant is dead. The presumption arising from his long absence is but a presumption at best, adopted as a convenient and necessary substitution for proof in order to avoid a deadlock in business affairs. See Best Ev. §§ 408, 409. In the next place, a decree of divorce is peculiar, in that it is not in itself a decree or judgment in personam, although the ancillary remedy for alimony may be such. It is, in effect and substance, a judicial declaration of a status or condition. It declares that the parties are free and clear of the marriage relation. And certainly if the defendant be dead the petitioner is free and clear of the marriage relation, and the declaration or decree to that effect does him no harm. In all cases of divorce on account of desertion the real ground of the relief is that the defendant is dead as to the complainant or petitioner.
Finally, 1 feel quite sure that many divorces have been granted in this state on the ground of desertion, where the deserting spouse has not been heard of for more than seven years, and I am free to confess that the point taken by the learned master in this case is, so far as I am concerned, quite novel.
I will advise an order sustaining the exceptions and a decree of divorce.