James Schouler.

A treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant online

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paniments of the crime, American policy treats both sexes
alike, and visits the guilt of husband or wife alike.^ As for
cruelty, legal cruelty is more readily expounded by negative
than affirmative language. This cause of divorce is designed
regularly for the vindication of the weaker party, usually (but
not necessarily) a wife, whose wrong from her husband's cruelty
may be found greater, in the average of cases, than from his
silent infidelities. In general, it should be stated that wherever
the conduct of one spouse to the other is such that the latter
cannot continue cohabitation without reasonable ground for
fearing such bodily harm from the former as seriously to ob-
struct the exercise of marital duties, or render the conjugal
state unendurable, there legal cruelty exists, and cause for
divorce ; and from this point of view violence actually com-
mitted and violence threatened are treated as alike reprehen-
sible.'-' Desertion, or the wilful abandonment of one spouse by

1 Schouler, Hus. & Wife, §§ 504- of the extremity of cruelty ; e. </. " ex-
506, and cases cited; 1 Bishop, §§65, cesses," "outrages," "intolerable in-
66l'; 7 Mass. 474 ; 42 Mich. 267 ; Mor- dignities," &.c. And see such phrases
daunt V. Moncrieffe, L. R. 2 H. L. Sc. as "cruel and inhuman," "cruelty of
374 treatment," "extreme and repeated

2 Schouler, Hus. & Wife, § 507 et cruelty." &c.

sen., and numerous cases cited ; Evans In some States a husband who un-

V. Evans, 1 Hag. Con, 35; 1 Bishop, justly charges his wife with unchastity

Mar. & Div. §§ 715-717; Latham v. is guilty of such cruelty as entitles her

Latham, 30 Gratt. 307 ; 25 N. J. Eq. to a divorce. Bahn v. Balm, 62 Tex.

526 518 ; Avery v. Avery, 33 Kan. 1. And

Legislative enactments use various as to the wife's unjust charge, see 30

expressions, some of which stop short Kan. 712 ; 18 Nev. 49. Especially if



•the other, was not a recognized cause of divorce under England's
ecclesiastical law, as promulgated at the settlement of this
country ; but the English divorce statute made it, when with-
out cause and extending over the space of two years, a third
cause for judicial separation; while meantime, in the United
States, where remedies for restitution of conjugal rights were
discarded, desertion for a specilied period has long been a per-
mitted cause for divorce ; perhaps for a limited divorce in the
first instance, and yet, quite commonly, as in the case of adul-
tery or cruelty, for a divorce ultimately if not immediately
from the bonds of matrimony.^ Three things are usually im-,
ported in this legal desertion : an actual cessation of cohabita-i
tion for the period specified ; the wilful intent of the absent |
spouse to desert ; desertion by that spouse against the will of
the other.2

As to the various other causes of divorce which are specified
from time to time by local statute, with much variety of verbal
expression, these are for the most part modifications of the three
chief ones we have just enumerated. For, with few exceptions,
all causes of divorce have one or more of the three leading \
elements present : there is adultery or cruelty or desertion ; or, /
to speak less literally, sexual infidelity, maltreatment, or the'
wilful cessation of marital intercourse. Thus, among offences
akin to adultery which are specified, are sodomy and bestial
crimes against nature, concubinage, and habitual loose intercourse
with persons of the opposite sex.^ Offering indignities to the

these accusations are publicly and ing language of local codes on this sub-
harshly made and repeated. 07 Tex. ject: "wilful desertion," " abandon-
198. Chastisement of the wife is nient,"" wilful absence," &c The time
cruelty, and certainly when repeated ; specified varies from one to five years;
but not such acts as laying his hand three years being perhaps tlie fair aver-
on her shoulder. 65 Md. 104; 21 Fla. age. See 11 P. D. Ill, as to neglect to
571 ; supra, § 44. comply with a decree of restitution.

As to masturbation, see 141 Mass. ^ Sergent v. Sergent, 3:^ N. J. Eq.

495. For cruelty by neglecting the 204; Latham c Latham, 31 Gratt. 307 ;

wife wantonly when she was critically Morrison v. Morrison, 20 Cal. 431.

ill, see 5(3 Mich. 50. There is no cause of divorce in which

^ Schouler, Hus. & Wife, §§515-523 the collusion of a disccmtented pair is

and cases cited; Pape v. Pape, 20 Q. more likely to prevail unless tlie court

B. D. 76 ; Act 20 and 21 Vict. c. 85, is quite circumspect than this alleged

§ 16 ; 1 Bishop, Mar. & Div. §§ 771- desertion.
775 ; 33 N. J. Eq. 363. Note the vary- » Schouler, Hus. & Wife, § 525 ;



person of a spouse, conviction of felonious crime (which, besides
separation, visits disgrace upon the innocent), gross and con-
firmed habits of intoxication or habitual intemperance, gross
neglect of duty, abusive treatment, — all these are of tlie nature
of cruelty.^ Joining the Shakers (among whom the relation of
husband and wife is held unlawful), absenting one's self unrea-
sonably long, causes like these are in the nature of desertion ;
and insanity, withholding sexual intercourse, and various other
causes not clearly recognized as justifying divorce, are of a like
nature.^ But other miscellaneous causes of divorce may be
found specified in American codes : some mingling fraud and
other nullifying causes as grounds for a divorce; some again
permitting divorce to be granted at judicial discretion for any
other cause or upon general considerations of the peace and
morality of society, — a dangerous latitude should any court
choose to abuse its functions.^

§ 221. Effect of Absolute Divorce upon Property Rights. —
The effect of divorce from bonds of matrimony upon the prop-
erty rights of married parties is substantially that of death, or
rather annihilation. We speak here of hona fide and valid de-
crees of dissolution.^ And, save so far as a statute may divide
the property or restore to each what he or she had before, or a

Stevens v. Stevens, 8 R. I. 557 ; 10 Ire. of assailing the libellant's proof, is re-

506. crimination (since the party alleging a

1 Schouler, Hus. & Wife, § 526. wrong must come into court with clean
Pending an appeal from a conviction hands), condonation (or conditional for-
of a felony, tiie conviction cannot be givencss), connivance (or aiding and
urged as ground for divorce. Rivers v. abetting the offence, usually from cor-
Rivers, GO Iowa, 378. But actual im- ruptand sinister motives, so as to make
prisontnent for the statute period is a out a case for divorce). Cross-bills are
cause of divorce, notwithstanding a bill often filed, each party seeking divorce
of exceptions be filed. Cone v. Cone, for the other's fault. The husband's
58 N. H. 152. condonation of his wife's adultery does

2 S<;houler, Hus. & Wife, §§ 527, not debar her from divorce from him
528. In some instances it might be if he afterwards commits adultery.
hard to say whether cruelty or deser- Cumming v. Cumming, 1M5 Mass. 386.
tion is the stronger element. For the Scotch law of condonation, see

3 Schouler, Hus. & Wife. §§ 530, 531 ; Collins v. Collins, 9 App. Cas. 205.

1 Bishop, Mar. & Div. § 827 ; 31 Me. 590. As to connivance at a wife's adul-

For divorce procedure, see, at length, tery which debarred a divorce, see 136

Schouler, Hus. & Wife, §§ 533-556; Mass. 310.

2 Bishop, Mar. & Div. passim. Among * See invalid decree disregarded in
the permitted defences, besides that Cheely v. Clayton, 110 U. S. 701.



decree for alimony may fasten directly upon the property in
question, the guilt or innocence of either spouse does not affect
the case.^ This is a topic upon which the common law, from
the infrequency of divorce, furnishes no light, except by analo-
gies. The settled usage of Parliament in granting divorce has
been to introduce property clauses to the above effect into the
sentence of dissolution regulating the rights and liabihties of
the respective parties,^ but even in these cases the rights of
divorced parties as to tenancy by the curtesy, chattels real, and
rents of the wife's lands, are still unsettled ; and in general, the
consequence by act of Parliament " does not very clearly ap-
pear." ^ But under the new English Divorce Act,* it is held in
a recent case that where the wife, at the date of the decree of
divorce a vinailo, was entitled to a reversionary interest in a
sum of stock which was not settled before her marriage, and
had been the subject of a postnuptial settlement, and after the
decree the fund fell into possession, her divorced husband had
no right to claim it.^ The English doctrine, as thus indicated,
is that the same consequences as to property must follow the
decree of dissolution by the divorce court as if the marriage
contract had been annihilated and the marriage tie severed on
that date. Such, too, has been the spirit of later decisions.^

In settlements and trusts involving intricate family arrange-
ments, however, the English rule is not yet uniform and

1 See Harvard College v. Head, 111 Fussell v. Dowding, L. R. 14 Eq. 421 ;
Mass. 209. Swift v. Wenman, L. R. 10 Eq. 15 ;

2 Macq. Hus. & Wife, 210, 214. Prole v. Soady, L. R. 3 Cli. 220. And
2 2 Bright, Hus. & Wife, 3f)6. one who obtained a sentence of disso-

* Stats. 20 & 21 Vict. c. 85 ; 21 & lution of marriage was held, moreover,
22 Vict. c. 108 ; 28 & 24 Vict. c. 144. not liable to be joined in an action for

* Says Vice-Chancellor Wood: tort committed by his wife during the
"Here the contract has been deter- coverture. Capel v. Powell, 17 C. B.
mined by a mode unknown to the old n. s. 74.3.

law, namely, by a decree of dissolu- "^ The most recent cases show a de-

tion ; and as the husband was unable, cided indisposition to forfeit a hus-

during tiie existence of the contract, to band's rights to a trust fund where, at

reduce this chattel into possession, I all events, the effect of annihilation

must hold that tlie property remained would be to disturb tlie remote right of

the property of the wife." Wilkinson some innocent party, or without consid-

V. Gibson, L. H. 4 Eq. 162. eration as to which spouse offended.

6 Pratt V. Jenner, L. R. 1 Ch. 493; Fitzgerald v. Chapman, L. K. 1 Ch. D.




[part II.

In this country the effect of divorce a vinculo is frequently
regulated by statute. And in general, and independently of
statute, all transfers of property actually executed before di-
vorce, whether in law or in fact, remain unaffected by the de-
cree. For instance, personal dioscs of the wife already reduced
to possession by the husband, remain his.^ But as to rights
dependent on marriage and not actually vested, a full divorce,
or the legal annihilation, ends them. This applies to curtesy,
dower, the right to reduce choses into possession, rights of ad-
ministration, and property rights under the statutes of distri-
bution.2 These doctrines are set forth in local codes, which
frequently save certain rights, such as the wife's dower where
divorce is occasioned by her husband's misconduct. And a pro-
vision under an antenuptial contract, which is plainly intended
as a substitute or equivalent for dower in case the wife survives
the husband, is barred by their divorce.^

As to torts a similar rule would probably apply.* Separate

563. Jessel, M. R., here discredits Fas-
sell V. Dovvding, and other cases cited
supra. And see Burton ii. Sturgeon,
L. R. 2 Ch. D. 318; Codrington v. Cod-
rington, L. R. 7 H. L. 854. And in
certain causes the Divorce Act confers
the power to modify the marriage set-
tlement upon final sentence. 20 & 21
Vict. c. 85, § 45. Wiiere application is
made for that purpose, the judicial ob-
ject of thus proceeding is, apparently,
to prevent tlie innocent party from be-
ing injuriously affected in property by
the decree. Maudslay v. Maudslay,
L. R. 2 1*. D. 256. On the decree for
dissolution ';f marriage becoming abso-
lute, it takes effect from the date of
the decree nisi. Prole u. Soady, L. R.
3 Ch. 220.

1 Lawson v. Shotwell, 27 Miss. 6.30.

2 Dobson V. Butler, 17 Mo. 87; 4
Kent, Com. 53, n., 64; Given v. Marr,
27 Me. 112; Wheeler v. Hotchkiss, 10
Conn. 225 ; Calame v. Calame, 24 N. J.
Eq. 440; Hunt v. Thompson, 61 Mo.
148; Schouler, Hus. & Wife, § 559;
Rice V. Lumley, 10 Ohio St. 596. But
see Wait v. Wait, 4 Conist. 95 ; En-


sign, Ee, 103 N. Y. 284. As to property
of the husband in the divorced wife's
possession, see Lane v. Lane, 76 Me.
521. As to communitj' property see
59 Tex. 54 ; 60 Cal. 579.

3 Jordan v. Clark, 81 111. 465. Here
divorce was granted to A. for the fault
or misconduct of A.'s wife, but the
principle of the case was that the wife
could only be entitled to receive the
provision as A.'s widow. A divorce a
vinculo obtained by the wife, though for
the husband's misconduct, bars dower.
Calame v. Calame, 24 N. J. Eq. 440.
And see Gleason v. Emerson, 51 N. H.
405; Hunt v. Thompson, 61 Mo. 148.
Cf. New York statute, construed in
Schiffer r. Prudcn, 64 N. Y. 47 ; also
Ohio statute, in 44 Ohio St. 645. Some
State codes provide how the homestead
sliall be disposed of. 114 111. 376.

* Chase v. Chase, 6 Gray, 157; 2
Bishop, Mar. & Div. § 724 ; Schouler,
Hus. & Wife, § 559. And see Capel v.
Powell, 17 C. B. N. s. 743.

If the husband receives any prop-
ert}' of tlie wife after divorce, she may
recover it in a suit for money had and


§ 222

property of a wife settled, or otherwise vested in her, is not to
be disturbed by a divorce,^ nor property vested already in the
husband by gift from his wife.^

§ 222. Effect of Partial Divorce upon Property Rights. —
Divorce from bed and board, or nisi, produces, however, no such
sweeping results ; the cardinal doctrine here being that the mar-
riage remains in full force, although the parties are allowed to
live separate. Here we must consult the phraseology of local
statutes with especial care, in order to determine the respective
rights and duties of the divorced parties. Thus the consequence
of judicial separation, under the present divorce acts of England,
is to give to the wife, so long as separation lasts, all property of
every description which she may acquire, or which may come to
or devolve upon her, including estates in remainder or reversion ;
and such property may be disposed of by her in all respects as
if she were 2^. feme sole; and if she dies intestate it goes as if her
husband had then been dead.^

In this country, independently of statutory aid, the property
rights of the parties divorced from bed and board remain in gen-
eral unchanged. For this divorce is only a legal separation, ter-

received. 2 Bisliop, Mar & Div. 714 ;
Legs ^'- Legg, 8 Mass. 99. See Kint-
zin^er's Estate, 2 Ashm. 455. How
far, on the divorce of the husband, his
assignee may claim against the wife
does not clearly appear ; but where the
divorce was obtained tlirougli his fault,
the wife's equitable provision, it seems,
will be favorably regarded as against
him. 2 Bishop, § 715, and conflicting
cases compared ; Woods v. Simmons,
20 Mo. 363; 2 Kent, Com. 136 et spq.
Divorce takes away the husband's
right of administration upon the estate
of his divorced wife. 2 Bishop, Mar &
Div. 5th ed. § 725; Altemus's Case, 1
Ashm. 49. See, further, as to the ef-
fect of divorce, Schoulcr, Hus. & Wife,
§ 561, and cases cited.

1 Barclay v. Waring, 58 Ga. 86;
Harvard College r. Head, 111 Mass.
209; Schouler, Hus. & Wife, § 560;
Jackson v. Jackson, 91 U. S. 122;
Stultz V. Stultz, 107 Ind. 400.

It is held, and upon that principle of
sound policy which maintains inviolate
the sanctity of the marriage union
while discouraging stale and doubtful
litigation to which their final and angry
rupture might incite one of the married
parties, that a divorced wife cannot
maintain an action against her divorced
husband upon an implied contract
arising during coverture : Pittman v.
Pittman, 4 Oreg. 298 ; nor for an al-
leged assault committed upon her while
they were husband and wife. Abbott v.
Abbott, 67 Me. 304. Such remedies, so
far as available at all, ought to be suf-
ficiently available at the time the right
accrued and during marriage. As to a
note from the divorced husband, see
Chapin v. Chapin, 135 Mass. 393.

- Tyson v. Tyson, 54 Md. 35.

3 Stats. 20 & 21 Vict. c. 85, § 25 ; 21
& 22 Vict. c. 108, § 8. See Romiily,
M. R., in Re Insole, L. R. 1 Eq. 470.


§ 222


[part II.

minable at the will of the parties ; the marriage continuing in
regard to everything not necessarily withdrawn from its opera-
tion by the divorce.^ Thus, the husband still inherits from the
wife, and the wife from the husband ; the one takes his curtesy,
the other her dower ; and even the right of reducing the wife's
choses in action into possession still remains to the guilty hus-
band.2 But chancery, by virtue of its jurisdiction in awarding
the wife her equity to a settlement, may, and doubtless will,
keep the property from his grasp, and do to both what justice
demands.^ On principle, the right to administer woulil seem
not to be forfeited by one's divorce from bed and board.*

1 Dean v. Riclninond, 5 Pick. 461 ; 2
Bishop, Mar. & Di v. 5tli ed. § 726 et seq.\
Castlebury v. Maynard, 95 N. C. 281.

2 Clark I'. Clark, 6 Watts & S. 85 ;
Kriger v. Day, 2 Pick. 316 ; Smodt v.
Lecatt, 1 Stew. 590; Ames v. Chew, 5
Met. 320.

3 Holmes v. Holmes, 4 Barb. 295 ;
Schouler, Hus. & Wife, §§ 161, 562, 563.

* But see limitations sutrgested in
Schouler, Hus & Wife, § 563.^

The recent Englisli statutes give the
wife, upon sentence of judicial separa-
tion, the capacity to sue and be sued
on somewhat the same footing as a.feme
sole. The rule in tJie United States is
not uniform; but the tendencj' is
clearly in tlie same direction. See 2
Bishop, Mar. & Div. 5th ed. § 737, and
cases cited ; Lefevres v. Murdock,
Wright, 205; Clark v. Clark, 6 Watts
& S. 85. And see, further, as to statu-
tory provisions, including a division of
property, Schouler, Hus. & Wife, § 564,
and appendix ; 2 Bishop, Mar. & Div.
§§ 509-519.

Concernhirj the conflict of lairs, with
respect of (1) marriage, (2) marital
rights and duties, and (3) divorce, see
Schouler, Hiis. & Wife, §§ 5(i6-575.
As affecting the rights and duties of
the marriage relation, Story, in his
Conflict of Laws, after an extended
discussion of the great diversity of
laws existing in dilferent countries, as
to the incidents of marriage, lays down


the following primary rules, which are
of general application. (1) Where
parlies are married in a foreign coun-
try, and there is an express contract
respecting their rights and property,
present and future, it will be held
equally valid everywhere, unless, luider
the circumstances, it stands prohibited
by the laws of the country where it is
sought to be enforced. It will act
directly on movable property every-
where. But as to immovable property
in a foreign territory, it will, at most,
confer only a right of action, to be en-
forced according to the jurisdiction ret
sitcB. (2) Where such an express con-
tract applies in terms or intent only to
present property, and there is a cliange
of domicile, tlie law of the actual dom-
icile will govern the rights of tlie par-
ties as to all future acquisitions. (3)
Where there is no express contract, the
law of the matrimonial domicile will
govern as to all the rights of the parties
to their present property in that place,
and as to all personal property every-
where, upon the principle that mova-
bles have no silns, or, rather, tiiat they
accompany the person every wiiere.
As to immovable property the law rei
sitce will prevail. (4) Wliere there is
no change of domicile, the same rule
will ajjply to future acquisitions as to
present property. (5) But where there
is a change of domicile, the law of the
actual domicile, and not of the matri-
monial domicile, will govern as to all



future acquisitions of movable prop-
erty ; and as to all immovable proi>-
erty, the law rei sike. Story, Confl.
Laws, §§ 184-187. And see Besse v.
Pellochoux, 73 111. 285.

He further adds that although in a
general sense the law of the matri-
monial domicile is to govern in relation
to tiie incidents and effects of marriage,
yet this doctrine must be received with
many qualifications and exceptions, in-
asmuch as no nation will recognize
such incidents and eft"ects when incom-
patible with its own policy or injurious
to its own interests. So, too, perplex-
ing questions will sometimes arise in
determining upon the real matrimonial

domicile of parties who marry in tran-
situ, during a temporary residence
abroad, or on a journey made for that
purpose with the intention of return-
ing. But tlie true principle in such
cases is to consider as the real matri-
monial domicile the place where, at
the time of marriage, the parties in-
tended to fix their abode, and not the
place where the ceremony was in fact
performed. Story, Confi. Laws, §§ 189-
199, and cases cited. See also 1 Burge,
Col. & For. Laws, 244-639 ; Wharton,
Confl. Laws, §§ 118-121, 166, 187-
202 ; and Schouler, Hus. & Wife, § 570,






§ 223. Parent and Child in General ; Children, Legitimate and
Illegitimate. — The second of the domestic relations is that of
Parent and Child ; a relation which results from marriage, and
is, as Blackstone terms it, the most universal relation in nature.^
Both natural and politic law, morality, and the precepts of re-
vealed religion alike, demand the preservation of this relation
in its full strength and purity. In the first period of their exist-
ence, children are a common object of affection to the parents,
and draw closer the ties of their mutual affection ; then comes
the education of the child, in which the parents have a common
care, which further identifies their sympathies and objects ; the
brothers and sisters of the child, when they come, bring with
them new bonds of affection, new sympathies, new common ob-
jects ; and the habits of a family take the place of the wishes of
an individual. Thus do children give rise to affections which
still further tend to bind together the community by links of

Children are divided into two classes, legitimate and illegiti-
mate. The law prescribes different rights and duties for these

1 1 Bl. Com. 447.

a 1 Whewell, Elements of Morality, 100; 2 Kent, Com. 189.



classes.^ It becomes proper, then, to consider tliem in order.
First, then, as to legitimate children, to which topic alone the
relation of parent and child in strictness applies ; this will
occupy several chapters.

§ 224. Legitimate Children in General. — A legitimate child
is one who is born in lawful wedlock, or is properly brought
within the influence of a valid marriage by reason of the time
of birth. Legitimacy, as the word imports, will require that
the child be born in a manner approved of by the law. If he
is begotten during marriage and born afterwards, it is enough.^

§ 225. Presumption of Legitimacy. — The maxim of the civil
law is Pater est quern, nnpticc demonstrant ; a rule frequently cited
with approval by common-law authorities, though, as we shall
soon see, differently applied in some respects.^ A distinguished
Scotch jurist pronounces this "a plain and sensible maxim,
which is the corner-stone, the very foundation on which rests
the whole fabric of human society."^ Boullenois, a civil-law
writer, likewise commends it as " a maxim recognized by all
nations, which is the peace and tranquillity of States and fam-
ilies."^ This maxim implies that it is always sufficient for a
child to show that he is born during the marriage. The law
draws from this circumstance the necessary presumption that
he is legitimate. Every child born in wedlock is presumed to be
legitimate, and the child's paternity is provable by reputation.

Strong, however, as this presumption may be, it is not con-

Online LibraryJames SchoulerA treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant → online text (page 42 of 90)