| R.I. | Oct 6, 1869
Lead Opinion
The respondent moves for an allowance for the purpose of enabling her to defend against the petition. The statute, (Rev. St. Ch. 137, § 16,) empowers the court "to make such allowance to the wife out of the estate of the husband, for the purpose of enabling her to prosecute or defend against any such petition for divorce or separate maintenance, in case she has no property of her own, as they may think reasonable and proper."
The respondent makes affidavit that she believes her husband has pecuniary means of his own wherewith to defray the expenses of this suit, but produces no further evidence to that effect. On the other hand, the father of the husband makes affidavit to the effect that her husband is a minor, of eighteen years of age, and is unable to work owing to disease, exemption from labor having been particularly prescribed by the doctors that attend him; that he is supported by the affiant, and that he has no money or property out of which he can make any allowance or payment to the respondent.
We think, under our statute, that the allowance, if made, should be made out of the estate of the husband, and not by the next friend; and in the circumstances, as disclosed by the affidavit last above cited, we do not think an order upon the husband to make his wife any allowance or payment would be reasonable and proper at present.
In Bouere v. Bouere, 1 Curt. Ec. 566, where the husband being plaintiff, was destitute of property then in possession, and of ability, it was held that the court, though it would not directly require him to furnish his wife with alimony pendentelite, would suspend the suit until some provision was made for her. And in Purcell v. Purcell, 3 Edw. Ch. 194" court="None" date_filed="1838-03-13" href="https://app.midpage.ai/document/purcell-v-purcell-5549228?utm_source=webapp" opinion_id="5549228">3 Edw. Ch. 194, it was held that if a husband sues for divorce, he must supply money for the support of his wife pendente lite, and to help her make defence, where she denies under oath the grounds of the bill, or abandon his suit, and that his poverty would be no excuse.
Without deciding whether these cases furnish a precedent for us under our statute, we will say that we are not, as now advised, prepared to go to the extent of them in this petition; but, *381 nevertheless, if the respondent can satisfy us that she has witnesses who can enlighten us in regard to the merits of the petition, whose attendance she cannot procure for the want of means, we will not, for the present at least, proceed to the trial in their absence, but will give her time to obtain means, if she can, unless the petitioner will himself be at the expense of procuring their attendance
The respondent also moves the court for an order upon the petitioner to produce her husband in court at the time of the trial of the petition.
At present, we will not make such an order. If, upon the trial of the petition, it shall appear to the court that the husband's presence is desirable, the court can then do what it thinks proper and within its competence to do, to the end that he may be produced.
Motions denied.
At the trial of the petition, Payne, for the respondent, objected to the reading of one of the depositions taken by the petitioner, on the ground that the deponent was himself in court and should be put upon the stand.
THE COURT overruled the objection, and allowed the deposition to be read, on the ground that under the practice in this state, a deposition otherwise admissible in evidence may be used in the trial of a cause, although the deponent is himself in court at the time it is produced, and could be put upon the stand by the parties offering his deposition, if they so desired.
The testimony produced by the petitioner at the trial, to show the insanity of the said Owen M. Thayer at the time of his contracting his marriage with the respondent, consisted of testimony of four medical witnesses and as other witnesses, his father and mother, four relatives, and three witnesses not related to him.
Dr. George Capron and Dr. Isaac Ray were examined as attending or family physicians. The former testified that he had visited Owen M. Thayer professionally on several different occasions. That in 1863 or 1864, he attended him for a severe and *382 protracted case of chicken pox, attended with tumors, indicating a depraved or unhealthy condition of the general system. That about a year afterwards he visited him again several times on account of suspected mental derangement and prescribed for him, and after a thorough and careful investigation of the case, was decided in the opinion that he was laboring under mental derangement.
Dr. Ray testified, that he visited the said Owen M. Thayer at the request of his father sometime during the winter of 1865 and 1866, and had a long interview with him for the purpose of ascertaining his mental condition, and found it quite evident that he was laboring under some degree of mental disorder.
The marriage took place on the 19th of March, 1867.
Three medical experts were examined upon the question of the insanity of said Owen, upon a hypothetical case presented to them as the substance of the petitioner's testimony, and testified that in their opinion, supposing the facts to have existed as stated, he was insane and incapable of entering into the marriage contract.
The respondent, after the trial of the case, moved that the decision be deferred until the said Owen M. Thayer should be produced before the court for personal examination. Accompanying the motion was her affidavit, to the effect that her marriage with the said Owen was at his solicitation, and without any fraud or inducement on her part; that she had no knowledge or suspicion or belief that he was insane at the time of said marriage, or at any time, but believed that at the time of his marriage with her he was sane and capable of making a valid marriage contract.
The petitioner, in opposing this motion, produced an affidavit of Dr. Ray, to the effect that he felt quite sure in saying, that for the said Owen M. Thayer to come to Providence and appear in court during the hearing of the cause would be decidedly detrimental to his mental health, which required the utmost freedom from excitement.
Addendum
Upon the testimony which has been submitted in this cause, we feel constrained to adopt the conclusion, that Owen M. Thayer, when he married the respondent, was laboring under such a malady of the mind as disabled him from contracting a valid marriage. And this state of mind, which had existed for two or three years before the marriage, appears to have continued without material change subsequently, until after the petition was preferred. On the case as it now stands, we think the petition should be granted.
The respondent asks us to defer our decision until Owen M. Thayer, now absent in the state of Maine, shall have been produced before us to be personally examined. If we were assured that he had now recovered, we should not wish to proceed to a decree without some communication with him in regard to the subject of the petition. But the respondent does not base her request upon an alleged recovery, but upon her belief that he has never been otherwise than of sound mind. It is possible, if the respondent failed to detect his insanity during her intercourse with him, that we might not, in an interview with him, discover it. But, even if this were so, we could not venture to follow our own unskilled impressions, so obtained, against the opinions of the accomplished experts produced by the petitioner, corroborated as they are by the opinion of the family physician, and by the testimony showing a change in Owen M. Thayer's character, occurring some years before his marriage, and followed by a course of strange, moody and wayward conduct on his part up to the time of his marriage and afterwards. The petitioner, through his counsel, admits that Owen M. Thayer has recently improved in mind, but says that he is not yet restored. We have no sufficient reason to suspect that the petitioner is *387 practicing to deceive the court, or that he is abusing the powers confided to him by the statute under which the petition is preferred. The affidavit of Dr. Ray expresses his opinion, (given October 10, 1868,) that the boy could not be produced in court without undergoing a dangerous degree of excitement. In this state of the case, while we should be glad to have Owen M. Thayer produced, if it can be done without serious risk, we yet are not prepared to refuse to grant the petition unless he is produced.
The respondent suggests that we ought not to proceed to a decree without notice to Owen M. Thayer, and without first ascertaining the fact of his lunacy by some more formal proceeding with that view, after such notice. The statute authorizing the petition in this form does not direct that such notice shall be given, but simply provides that "the fact of lunacy shall be set forth in said petition, and shall, on the trial thereof, be proved to the satisfaction of the court as any other material allegation is required to be." We do not think the notice proposed is indispensable, unless this statute is unconstitutional, and the counsel for the respondent, although he questions our power to proceed in this suit without notice to Owen M. Thayer, does not refer to any provision or principle of the constitution which will be infringed thereby, and we think of none. Doubtless there may be cases in which we should consider such a notice expedient, but in this case, where the person in whose behalf the petition is preferred is a minor, without means, and under the control of the father, who is himself the petitioner for him, we think it would be a barren ceremony to have him personally served with notice, unless we should go further and secure him the means of contesting the right of his father to prosecute the petition in his behalf. This we are not prepared to do. Indeed, we think, in the absence of any proof of fraud or unfairness, that the lunatic, or non compos, is to be regarded duly represented in the suit by the person who, being authorized by the statute, petitions in his behalf.
We shall, therefore, grant the prayer of the petition. We deem it proper to say, in doing so, that we think the respondent *388 has conducted the defence as becomes her claim to be the true and lawful wife of Owen M. Thayer, and that, if there be any error in our decision, it will not have occurred by reason of any want of proper efforts on her part to maintain the validity of her marriage with him.
Petition granted.