Burr v. Burr

10 Paige Ch. 20, 1842 N.Y. LEXIS 613, 1842 N.Y. Misc. LEXIS 40

• Court: New York Court of Chancery
• Decided: October 21, 1842
• Status: Published

Opinion

The Chancellor.

The first question for consideration in this case is whether the complainant has established such a case as to entitle her to a decree of separation. And certainly there cannot be any doubt on that part of the case, if her cohabitation with her husband after most of the acts of cruelty on his part took place is not an absolute bar to a suit founded upon them. The conduct of the husband was repeatedly such as to raise a well founded apprehension on the part of his wife of such violence as would endanger her health if not her life j and this not merely when he was under the influence of liquor, but also when he was influenced only by his ungoverned temper and most brutal appetites. Indeed, it appears from the whole testimony that this unfortunate lady was, for more than thirty years, subjected to a state of suffering almost beyond human endurance. I allude not to the fact, which is not denied, that her health was permanently destroyed by him immediately after the marriage, and for which a life of kind offices and delicate attentions on his part could scarcely have atoned. But the proof shows that notwithstanding this strong claim upon him to make up to her in kind treatment for her impaired health and bodily sufferings, the result of his former indulgencies as admitted by him, he has treated her more like a menial.servant than a wife during nearly the whole time she lived with him. Those who had been acquainted with her before her marriage show that she belonged to a very respectable family in Connecticut; was amiable, talented, and accomplished, and moved in the first circles in the neighborhood of her' father’s residence. And yet with a fortune more than sufficient for all the comforts and even the ordinary superfluities of life, her husband, for a third of a century, subjected her to the most degrading and sometimes the most disgusting services, many of which were rendered necessary by his own vicious indulgences. He habitually used towards her harsh, ungentlemanly, profane, and opprobrious language—cursing her whenever he got angry either with her or any one else—calling her a a dirty bitch,” and following her from room to room whenever she attempted silently to escape from the effects of his anger, or the indulgence of his more than brutal passions ; and this too in the presence of his servants and family. And on several occasions he resorted to personal violence amounting to such legal cruelty as would justify the court in decreeing a separation ; connected as those acts of violence were with a general course of unkind treatment. On one occasion it appears that for no other cause of offence than that a servant had, by accident, dropped the head of a fish upon the floor, he immediately commenced abusing his wife for it—cursing her and applying to her his common ungentlemanly epithet; and he finally thrust his fist under her nose and pushed her head back in anger, although she had immediately expressed her regret that the accident had occurred. At another time he pulled her chair from under her, threw her upon the hearth, and dragged her across the room in the presence of his servants in the kitchen, under circumstances which showed an utter disregard of her health if not of her life. Sometimes he has deprived her of the use of a fire in her room when she was sick ; and at others he has thrown open the windows and doors of her room to compel her to leave her bed, when she was in the same situation, to the manifest danger of her health. She also alleges in her bill that he occasionally resorted to blows when no witnesses were present; which charges are not specifically denied in the answer, which is put in without oath, although there is in the concluding paragraph of thé answer a general traverse of all unlawful acts and all other matters charged in the bill. And the facts testified to by the witnesses in relation to his conduct on other occasions leaves very little room to doubt that these acts of cruelty also occurred as charged. Conduct infinitely less aggravated than this was, in the case of Lockwood v. Lockwood, (2 Curteis' Eccl. Rep. 281,) considered by Dr. Lushington, Dean of the Arches, as sufficient to justify a decree of separation.

The circumstances which occurred at the time of the final separation, and shortly previous to that event, and the causes of the defendant’s violence at that time, as well as at the previous separation in 1813, are too degrading to human nature to admit of a particular detail. The defendant’s counsel insist, however, that his conduct in 1835, improper and indecent as it evidently was, did not amount to such legal cruelty as would of itself justify a decree of separation ; and that all his previous acts of violence and misconduct were absolutely condoned by the subsequent cohabitation of the parties, and cannot now be revived and connected with his subsequent acts to entitle the complainant to the relief asked for by her bill.

The law appears to be well settled in the English ecclesiastical courts that condonation of adultery, as well as of acts of cruelty, is a conditional forgiveness only. And that there is an implied condition annexed that the injury shall not be repeated, and that the other party shall be treated thereafter with conjugal kindness. (Durant v. Durant, 1 Hagg. Eccl. Rep. 761. D’Aigular v. D'Aigular, Idem. 781.) It was decided by Dr. Bettisworlh, the Dean of the Arches, more than a hundred years since, in the case of Worsley v. Worsley, (2 Lee’s Eccl. Cas. 572,) that subsequent acts of cruelty after a reconciliation had taken place between the parties, would not only revive condoned cruelty but also the adultery of the party which had previously been forgiven. And the learned Dr. Lushington, in the recent case of Bramwell v. Bramwell, which came before him in the consistory court of Rochester in 1831, (3 Hagg. Eccl. Rep. 635,) held that less cruelty was necessary to revive condoned adultery than to found an original suit for separation. In England the consequences of the establishment of adultery are the same as the proofs of other acts on the part of the defendant amounting to such legal cruelty as will justify a decree of separation from bed and board ; as that is the extent of the sentence which the court is authorized to pronounce, even in a case of admitted adultery. Hence there seems to be no good reason why the offence of adultery should not be revived by the commission of other acts inconsistent with matrimonial duty. Under the statute of this state, however, the consequence of the proof of an act of adultery is an absolute divorce of the injured party from the bonds of matrimony. And for that reason this court, in the case of Johnson v. Johnson, (4 Paige's Rep. 460,) held that subsequent acts of cruelty were not sufficient to revive condoned adultery, so as to sustain a decree for a dissolution of the marriage contract without proof of fresh acts of adultery. Although the decree in that case was reversed by the court for the correction of errors, yet as one of the senators whose vote changed the result, put his decision upon the ground that the condonation had not been satisfactorily established, the question still remains an open one here. (14 Wend. Rep. 648 n. See also Danish Code of Christ. 5, B. 3, ch. 16, art. 5, § 1.) I have no doubt, however, that the principles of the English decisions apply with full force to suits in this state for separation from bed and board for cruel treatment. And according to these principles former injuries^will be revived by subsequent misconduct of a slighter nature than would have been necessary to constitute an original cruelty entitling the injured party to a decree of separation. Such was the decision of Sir John Nicholl in the case of The Marquis & Marchioness of Westmeath, (2 Hagg. Eccl. Rep. Supp. 114.) And that decision was afterwards affirmed by the high court of delegates ; and the lord chancellor subsequently rejected an application of the Marquis for a commission of review. Indeed in most cases of this kind the legal cruelty which will form a sufficient ground to justify a decree of separation, consists in a continued series of acts of ill treatment; and relief could seldom be obtained in any case by an injured wife, if her continued cohabitation, and very laudable efforts to obtain better treatment from her husband for the future, should be held to constitute an absolute bar to her right to connect his last ill treatment with his previous acts of violence and cruelty. Independent of this principle of reviving condoned cruelty, however, I think the testimony of Doctor Leon ard and others, show that at the time when the complainant last fled from her husband’s house, she had good cause to fear serious injury to her health from his worse than brutal conduct.

The objection that the suit in this case was not commenced for some years after she left his house, is sufficiently answered by the fact, that her only surviving child was then living under the protection of his father, and that during his life she was unwilling to involve him in these family difficulties, by the institution of a suit against her husband for a final separation. In the case of Best v. Best, (2 Phill. Eccl. Rep. 161,) the suit was not instituted until five years after the wife left her husband and went to reside with her paramour; and yet the simple affidavit of the husband was received to excuse his delay in instituting his proceedings for a divorce. And in Coode v. Coode (1 Curteis’ Eccl. Rep. 755,) a delay of six years in the bringing of the suit was considered as sufficiently accounted for by proof that a suit was commenced soon after the injury occurred, which suit was soon after abandoned for want of sufficient means to carry it on ; although the complainant in that case was in the receipt of his half pay as a naval officer. (See also D'Aiguilar v. Aiguilar, 1 Hagg. Eccl. Rep. 780.) The legislature having fixed a specific limitation, of five years after the discovery of the injury, in suits for divorce on the ground of adultery, and said nothing as to the time of bringing suits for separation on the ground of cruelty, it is to be presumed that they intended to leave the latter class of cases to the discretion of the court, and to the general limitation as to suits in equity not otherwise provided for, as prescribed by the 52d section of the article of the revised statutes relative to the time of commencing suits in courts of equity. (2 R. S. 302.)

The fact that the defendant has abandoned his habits of intemperance since the separation, affords no sufficient grounds for denying the relief sought by the complainant’s bill. For the testimony of nearly every witness who had any means of knowledge on the subject, concurs in showing that the defendant’s abuse of his wife was not limited to those seasons when he was laboring under the effects of intoxication 5 but that his conduct to her was generally unkind and inhuman, whether he was drunk or sober.

The objection that the decree should have allowed to the defendant, towards the costs of the suit, the sums he had already advanced under the former orders of the court, cannot be sustained ; as there was nothing before the vice chancellor to show that any such orders had been made. Besides, the extra expenses and reasonable counsel fees in this case must probably have exceeded the sums paid ; even if papers had been produced on the hearing in the court below showing what orders had been made and what sums had been paid by the defendant on that account. And the objection that the vice chancellor was not authorized to decree a provision for the alimony of the wife which should continue beyond the’life of the husband, is clearly untenable. The statute authorizes the court to make such order and decree for the suitable support and maintenance of the wife out of his property as may be just and proper. (2 R. S. 147 § 53.) And it certainly cannot be unjust or improper to compel a husband, whose wife has been driven from her home by his cruelty or in consequence of his defilement of the marriage bed, to provide her a suitable support for the remainder of her life; instead of permitting him to dispose of his property to strangers, at his death, leaving her entirely destitute.

Whether the court, in such cases, is authorized to award a gross sum to the wife, instead of an annual allowance, it is not necessary in this case to consider. For it will be more beneficial to the complainant to have a liberal quarterly allowance, for life, than any gross sum which the court would think it proper to give ; and which gross sum, in case of her death in the" lifetime of the husband, might belong to him under the statute of distributions. (2 R. S. 98, § 79.) In making the provision for an annual allowance in this case, however, the decree should have directed that the annuity, if not paid quarterly, as it becomes due, should still belong to the wife as her separate property ; and W’ith power to her to dispose of it as she pleases at her death, by an instrument in the nature of a will, if her husband survives her. So that he would have no inducement to withhold the payment in anticipation of her decease; or to delay her just claims by a protracted litigation in the higher courts until death should have closed the sufferings of the victim of his unparalleled cruelty and restored the allowance for her alimony to his already overgrown estate. And I think the allowance for alimony should have been directed to commence from the time of filing the complainant’s bill on the 12th of January, 1841 j deducting therefrom the ad interim alimony which has been received by her or her solicitor for her use.. If the parties cannot agree upon the manner in which the allowance for alimony shall be secured to her, it must be secured to the New-York Life Insurance and Trust Company, as her trustee, for her separate use ; with power to her to dispose of it by will or otherwise, either during her life or at her death, as she may think proper. The amount of the allowance up to the 12th of October instant, with interest on the arrears previous to the date of the original decree to be computed from that time, and on the residue from the respective quarter days thereafter, is to be paid immediately. And the subsequent allowance must be paid quarterly from the 12th of October instant; and, if not paid at the times when the quarterly payments respectively become due, the interest must be paid thereon from those times.

The amount which the vice chancellor has allowed for permanent alimony, although apparently large, is not too much when all the circumstances of this case are taken into consideration. . The husband’s property is estimated at a million of dollars by some of the witnesses, and is conceded by his counsel to be at least half of that amount. His annual income, therefore, must be from thirty to sixty thousand dollars. And no one has any claims upon his bounty but his unfortunate son by a former marriage, whom he has abandoned. If a few years of affluence can, to any extent, compensate this complainant for more than thirty years of unexampled sufferings and misery, either by the gratification of her feelings in the remuneration of those who have harbored and supported her in adversity, or in securing to her those indulgencies which her health requires, it cannot be an improper exercise of the discretion of this court to give to her a most liberal allowance for permanent alimony. In Mytton v. Mytton, (3 Hagg. Eccl. Rep. 658,) Sir John Nicholl allowed ¿61000 sterling per annum, out of an income of ¿66000 which was subject to a considerable incumbrance for debts. In Smith v. Smith, (2 Phil. Rep. 237,) where the whole income was ¿62000, one half thereof was awarded to the wife. And in the case of The Earl of Pomfret, decided in the Arches court of Canterbury in 1796, the wife was allowed one third of the income, or ¿64000 sterling—nearly double the amount of the allowance in this case—although the husband was a peer of the realm and required a large income to support that dignity. (See 2 Phil. Rep. 43, 110 and 236.) If ever a case called for an extraordinary allowance, this certainly is one ; for I think it is without a parallel in this or any other country. And here I cannot forbear to remark upon one extraordinary feature of it. It appears from the evidence that during her thirty years of suffering the complainant uniformly treated her husband with kindness, and did every thing in her power to please him, seldom, if ever, saying any thing in reply to his abuse. And she frequently entreated his servants not to mention his brutal conduct towards her out of the family.

With the modifications above suggested, the decree of the vice chancellor must be- affirmed; and the defendant must pay to the complainant, or her solicitor, or next friend, the costs upon these appeals to be taxed.

(a)

Affirmed by court for the correction of errors, upon appeal to that court, in December 1843.