*Georgetown.*

Heard by Chancellor James.

#### Anonymous.

MP»C XTIU.

A wife'is not entitled to alimony, out of the fortune of the husband who leaves his bed and hoard, unless she makes out a dear case of ill usage by the husband, and of correct conduct on her part. Rut the parties having lived very unhappily together, and the husband having offered to allow the wife *one*half the nett income of the settled estate, which she brought in marriage (which was subject to his disposal) and not offering to receive her back, the court hound him *by*his offer, ¡hough he afterwards retracted it; and though she had contracted considerable debts tar which he was liable. Some domestics of the trust estate allowed to her. The father to have the mirturS and education of the rliihl, — hut the mother' to have aecess to it. *

*95This was a bill filed by a wife against her husband to recover alimony, or some allowance to support her in living apart from her husband, on the ground of ill-usage. The wife had earned in marriage a considerable fortune, and a settlement had been made, which secured the estates to the issue of the marriage, but which gave the disposal of the income to the husband, during their joint lives, for the benefit of both, and to the survivor during life.

JUNE, 1810.

The bill charged ill usage, gross neglect, and suffering the complainant to be in want of the comforts and necessaries of life, and prayed for relief. The defendant denied the charges.

The cause came on and was heard by chancellor James, who, after the argument, delivered the following decree:

In whatever points of view the present case is considered, whether as relating to the respectability of the parties litigant, or the example it is to offer to the community, it is of the utmost importance.

It is important to the parties litigant, not in a pecuniary point of view alone, hut also as it affects their peace and reputation; and to the community, in shewing how necessary it is for married persons to control their tempers, and to guard against cvey cause of offence to each other, though such cause may appear to the one ■offering it not well founded, or of little importance. This cascáis also one of difficulty in the decision 5 hutas to this I rejoice, that if I should err, my errors ave subject to the revision of a court of appeals.

The questions which appear proper for my decision are, first, — Whether the plaintiff is entitled to alimony on account of her good conduct as a wife. Second,— If her conduct should he such as not to entitle her to alimony out of the private estate of the husband, whether she is not entitled to it out of the trust estate, and by the offer if not agreement of the defendant. To excuse her departure from the bed and board of her husband, as sta - ted in the answer, and not contradicted by the evidence, ihe wife has alleged that defendant suffered her to want *96¿¡1C necessaries of life, and tliat he used her ill. We will proceed to examine how these allegations arc supported proofs. The witnesses-which she relies upon to prove the want of necessaries, are two: Mrs. Eliza White and Mrs. Croft. Mrs. White deposes, “ That the complainant before her marriage with defendant, and whilst d<> ponent resided with her (about two years) lived in the greatest comfort, and was abundantly supplied with the necessaries and luxuries of life: and during her residence with complainant and defendant, after their marriage, which was about eighteen months, she was provided for very abundantly until she left them. That deponent afterwards paid several visits, and sometimes staid two or three months upon a visit. On these occasions she found complainant scarcely provided for, and sometimes nearly destitute of the necessaries of life. That the defendant often loft the complainant, and would stay away three or four months at a time, leaving her so scantily provided for, that she was obliged to sell trilling articles, in order to supply herself with necessaries.” Mrs. Croft has deposed, “ that she often visited the house of complainant while she was a widow, and she lived very happily and in a comfortable stile. That since the intermarriage of complainant and defendant, she has frequently visited the house of defendant, and sometimes in his absence. That she has witnessed a wantof those articles necessary for the comfort and convenience of a family in their situation 3 but cannot specify the articles wanted. That she has known complainant before her separation, refused credit in Georgetown j hut docs not know whether her not obtaining tiic articles she wished, arose from an order of defendant, or because they were not to bo obtained in the store.”

To contradict the evidence of these two witnesses, and to shew that complainant never wanted the comforts and necessaries of life, defendant has in his answer denied the allegations to that effect in the bill, and has supported his answer by the testimony of Mrs. Charlotte Á. Alisten, Mrs. Marvin, Mr. Sessions, who was the overseer on the plantation, Mr. dohn Keith, Mr. Banja-*97mi in Huger, Dr. Blyth and Dr. Allston. Defendant in liis answer states, “ that he doth particularly deny it to be true, that he at any time, left the complainant unprovided with the necessaries of life, as in bill *alleged;*on the contrary, he doth affirm, that his house was well provided, not only with the necessaries, but with most of the usual luxuries of life.” Mrs. Charlotte A. Allston deposes, “ That in her visits to defendant’s house, she always witnessed the greatest abundance of all that could contribute to the comfort and support of a family *;*and that the stile of living of complainant, during the life of her first husband, and during her widowhood, was not preferable to that of her living when she resided with defendant.” Dr. Allston has deposed to the same effect. Mrs. Marvin has sworn, iS That she is well acquainted with the complainant, but lias little or no acquaintance with the defendant; that 'she visited their house sometime in the year 1802 or 1803, and that she observed the greatest abundance of every kind of comfort, proper for a family, such as that of the defendant’s.” Mr. Sessions, the overseer, *“*Served defendant three years, from 1800 till 1803, after the separation of his wife the complainant from him ; and lived on the place when Mrs. Eliza White (then Miss Allston) was present there. That as overseer he had the care of the live stock and poultry, which was as abundant as in most plantations *;*that these were killed and used in the absence of defendant equally as when he v,as present.” The witness, Mr. Keith, and his family, by invitations visited defendant and family. He states, “ that they staid five or six days, and defendant’s living appeared to be equal to his fortune.” Mr. Benjamin Huger deposed much to the same effect, *“*that defendant’s stile of living was equal to his fortune.” Dr. Blyth has sworn, *“*That he knew defendant for many years when he was a bachelor, when married to his first and when married to his second wife: That in all these situations he lived *well;*that he lived as well as his neighbors. And that there was no great difference between the stile of living of complainant, when she was a widow and when she was the wife of defon-*98tiant.” Besides these several witnesses, Mr. Samuel Smith and Mr. Savage Smith, merchants, were examin-wj10 proved, “ That complainant was permitted by her husband, the defendant, to take up goods in Georgetown, and that he gave her an unlimited credit there so much so, that Savage Smith as a friend told him, if lie continued to contract such heavy debts he would *he*ruined.”

Such is the testimony offered by complainant to shew the want of the necessaries of life : and such that of the defendant to rebut the charge. In weighing the evidence, the court cannot have a doubt, nor hesitate to pronounce, that the testimony of these witnesses of complainant, however respectable, must fall to tin; ground, when oppugned by the answer, and by the testimony of nine other witnesses ; eight of whom are at least as respectable as the witness for complainant. It was said by the counsel for complainant, that the evidence of these two witnesses was positive. But the answer and testimony of Mrs. Allston, Br. Allston, Mrs. Marvin, Mr. Sessions and Dr. Blyth arc equally positive. But further to excuse her departure from her husband, the complainant has alleged his ill treatment of her. Upon this treatment, her claim to alimony out of his private estate must be principally founded. To prove this, she relies upon the evidence of *the same two*ladies, Mi's. White and Mrs. Croft; for the testimony of Mrs. Cross, her otherjjwitness, states nothing of bad treatment. Sirs. White has sworn, *“*That the conduct of defendant towards complainant was total inattention and indifference. That witness hath often heard them quarrelling, hut without hearing any distinct words or conversation, though deponent hath discovered in their conduct towards each other, the visible effect of their private quarrels, after such had taken place. That in the opinion of deponent, the jeering and ridicule by defendant of the complainant, was of the most provoking and offensive kind, and calculated to wound her feelings, disgust her, and alienate her affections from him. That the defendant informed her, he had purchased a plantation to the *99southward, which he was then planting ; that this place would afford him a- good pretext for leaving complainant for a length of time, as it would otherwise appear strange that he should leave her for so long a time 3 that she was a virago and he could not live with her ; but that he would visit her at stated periods, see that she was provided for, and if her conduct to him was still disa greeable he would stay away longer and longer at a time.” Witness also, states, (as before mentioned) That defendant often left the complainant, and would stay away three or four months at a time.” Mrs. Croft deposes, “ That she thinks defendant was very frequent, ly absent from his family, and that she does not think that defendant was very affectionate to his wife. That she has heard them quarrelling at night after they had been in bed, though she could not distinctly hear their words : and that she has been at defendant’s when the complainant was very sick, and his treatment of her on such occasions was not affectionate and tender.” To contradict this testimony of ill treatment, defendant has offered the evidence of Mr. Benjamin Huger, Dr. Blyth, Mrs. Charlotte A. Allston and Mr. John Keith. Miv Huger states, « That defendant is not of a bad or violent temper. Dr. Blyth believes *“*defendant to be a good natured man3” and states “ That he and his first wife lived happily together : no married people more so.” Sirs. Allston deposes, *“*That she has known defendant for many years, and always found him a humane and amiable man3 and that he lived happy and tranquil with his first wife.” • Mr. Keitli has sworn, “ That he has been acquainted with defendant twenty years, and always considered him a good tempered, benevolent man. That he was a relation of defendants first wife, and was intimate with her brother, who esteemed and respected the defendant while his sister was alive, and continued to do so, after her death, as long as he- lived.” In considering the evidence, as to ill treatment offered by defendant to complainant, the court is of opinion, that it falls short of thesoevitia of the ecclesiastical court, which must he translated severity or cruelly. It is a pity that Mrsv *100White and Mrs. Croft had not descended to particulars so as to shew in what the *“*inattention, indifference and the want of affection in defendant'’ consisted. As the matter stands, their thoughts and opinions are stated, or their reports of quarrels imperfectly heard. But if the court were *to*roly upon these, it is believed it would be the first time tiiat a court of justice has received the thoughts and opinions and the want of hearing of witnesses as conclusive evidence. Both of them state the frequent absences of the husband from home, as ill treatment; but defendant has in some measure accounted for this, by stating the number and dislance of his plantations from each other, and his disposition to visit his sick friends. But from the latter part of tiie conversation which Mrs. White states she had with defendant, respecting the temper of his wife, and his observations to Miss Colcock upon the same subject, and from the first and last letters from complainant to defendant, dated respectively the 20th October, 1799, and 26th December 1802, it is much to'bo suspected that complainant herself drove defendant from home to seek refuge from her bickerings. Of the contents of these two letters; particularly the first, my duty compels me to say, that I cannot draw a conclusion the least favorable. Both parties, as in most such cases, were no doubt in some respects blameable : *Yet,*taking the testimony of complainant’s two witnesses in its utmost latitude, I cannot see that severity or cruelty, for which it would seem tiiat an ecclesiastical court in England, would grant a divorce, a mensa and thora: nor does there appear to me any agreement to live separate between them, except in their own obstinate determination. Nor, to bring the case nearer home, is the *treatment,*though somewhat neglectful, equal to that stated in flie case of Je.Uineau *vs.*Jeilineau decided in this court.1»' In that case, the defendant refused to send away the woman who was .the bone of contention between them. At dinner one day he took away the plate from complainant when she was going to help herself to something to cat, *101and said, when he and his servant had dined she might, lie grudged her the bread she ace, and said “ grass wa» good enough tor her. Tnat he was going to a magistrate to get a divorce, and would buy a horse-whip and whip her well beiore she went away.” in the present case, whatever the warmth oi some ot the conns,ex may have suggested without a intie oi' evidence, there was no such improper and brutal conduct oí delenuant, as in tile case quoted : and none such being proved, none such shall be presumed. 1 shaii not comment upon the evidence offered by defendant upon this point 5 it is lull and clear, anu wiit speak for itself. i have oeibie said, that the complainant has biíeren tne above evidence adduced by her, to excuse her departure from the bed and hoard oi her husband f tnat aorupc departure required some good, excuses, and those oderecl uo not appear sufficient or satisfactory. lían there been suen a want of necessaries as is pretended, and such severity or cruelty as the law looks for bcibre alimony is granted, it would not nave been reiused 5 but as the case alanos, i cannot tiiink myself warranted in granting it out oi the private fortune of the husband.

See Ball v. Montgomery 4th Bro. 339. 2 Vez. jr. 197 1 Fondbl. 95

It now remains for me to consider whether complainant is entitled to maintenance out oi the trust estate *;*and by the offers if not agreement of the husband ? The trust estate came from the complainant ¿— the whole of it belonged to her previous to the marriage. By the marriage settlement, « the rents and profits of it were to inure to the defendant and complainant during their joint lives, he to be entitled to take the same.” Now, although the husband is entitled to die perception of these profits during their joint lives, yet it is conjointly with the wife, and her right, though legally vested in him j yet in ¡in equitable and moral point of view, and so far as her maintenance is concerned, it appears to be mutual and unextinguished. The defendant too, appears to have been consciousof this, and in bis first answer filed in this case, it seems he fixed the amount, making an offer of a maintenance of SOOZ. *$*supposed to be the one half the income of this trust es*102tate. It is true; that in his amended answer* he has i-C' tracted this offer, on account of the number of debts she has contracted on his *account;*but if he has suffered her to contract such debts, it is Iiis own fault; — he is bound by law to pay them ; — this court will not interfere, nor will it suffer him to retract an offer, when he was equitably bound, and which he has once fairly made by his answer. Indeed, had he in his answer unequivocally made her the offer to return to him, perhaps, on the authority of the cases cited, this court must have refused to grant her any *thing;*but it appears from defendant’s declarations to Miss Colcock, that it is not his intention to take his wife back. For these reasons, the court considers the complainant entitled to receive the one half of the profits of the trust estate 3 but not retrospectively. Therefore, let the defendant account now and hereafter, annually with the commissioner, and pay over to him for the use of the complainant,* one half of the nett .profits of the trust estate, including any and all proceeds of the last year’s crop, not actually paid away: deducting from all future calculations the hire of the ne-groes she now has in her possession, unless the same should be delivered up to defendant3 but that she be at liberty to retain any two of said negro slaves to wait upon her. Lot the defendant have the nurture and education of the child under his own control 3 but let the complainant have reasonable access to her. And let the costs of this suit he paid out of the income of the trust estate, to be borne equally by complainant and defendant.

Head *vs.*Head, ib. 551 Bullock *vs.*Menzies, 4th Vez. jr 798

*

 This was meant only during the separation, as in Head vs. Head.