Whipp v. Whipp

54 N.H. 580 | N.H. | 1874

Ladd, J.

“ In all cases where there shall be a decree of divorce or nullity, the court shall make such further decree in relation to the maintenance, education, and custody of the children as shall be most conducive to their benefit, and may order a reasonable provision for their support to be made out of the estate of the guilty party.” Gen. Stats., cli. 163, sec. 11. Section 13 of the same chapter provides that the court may order the property to be conveyed, or the money to be paid to a trustee to invest the same, and apply the income thereof to the maintenance and education of the minor children, &c. There can be no doubt but that this statute authorizes provision to be made for minor children out of the estate of the mother in case she is the guilty party, as well as out of the estate of the father in case he is the guilty party.

The allegations in this libel, with respect to the land purchased by Mi’s. Whipp, seem to be framed more with a view to the equitable relief sought by the libellant against the libellee, than to securing a reasonable provision for the support of the children. The prayer, however, is alternative in form ; “ that said premises may be decreed to him, &c., or a trustee to be appointed by the court for the maintenance and education of said minor children.” This would seem to be a sufficient, though not very formal, prayer upon which to found a decree making provision for the support of the minor children out of the estate of the wife, if a case for such a decree should be made out at the hearing.

The position of the defendant is, that the libel should be dismissed, because it seeks both the granting of a divorce and the enforcement of a resulting trust in favor of the libellant. The plaintiff denies that the facts alleged, with respect to the purchase and holding of the land by Mrs. Whipp, are sufficient to create a resulting trust as between husband and wife; and now, as we understand his position, asks that a provision for the children be made out of the estate of their mother. He says the facts set forth in the bill are not alleged for the purpose of raising a resulting trust in favor of the husband, but as a reason why the prayer of the petition, in relation to the property, should be granted. This is, perhaps, a little equivocal, inasmuch as the prayer with respect to the property is alternative, that the libellee shall relinquish it to the libellant or to a trustee, &c., and no ground is suggested, upon which the equitable relief contemplated in the first clause could be granted, except that of a resulting trust. The powers of this court, in reference to the custody, maintenance, and education of children in divorce cases, are wholly conferred by statute. No such power resided in the English ecclesiastical tribunals, and it is not derived at all from the general equity jurisdiction and powers of the court. How far, and under what circumstances, if at all, a court having both general equity powers and general jurisdiction in the matter of divorce may, upon a libel for divorce, grant equitable relief with respect to the property of the parties, when some such relief seems necessary to secure a suitable provision for the children, &c., we do not now inquire, because we are agreed that this libel shows no case for such interference in any view. It will be time enough for the libellant to look after his equitable interest in the property when it is seen what portion of it, if anything, is devoted to the support of the children. The hearing is not to be complicated, therefore, with questions as to whether the equitable interest in the land is in the father or the mother of the children. That part of the libel which has reference to the husband’s rights in the land may be struck out or disregarded at the trial as surplusage ; and, inasmuch as the libellant prays that the property, whoever may be its equitable owner, be devoted to the maintenance, &c., of the minor children, the judge at the hearing may make such decree as to a provision for the children out of the same as may be reasonable, in case the libellee be found the guilty party.

It is not the practice in this state to allow costs to either party in proceedings for divorce. A reasonable allowance to the wife, to enable her to maintain her defence, is made, upon evidence showing her want of means and that she has a good defence. No such proof was produced here, and we think no ground is shown for any order as to terms for the continuance.