author: ICiNG, President. —

text:
    Butler v. Butler.
    where a respondent, in her answer to a libel for divorce, alleges cruel and barbarous treatment, whereby she is foroed or justified in absenting herself from the habitation of her husband, and seeks to justify a desertion on that ground; the libellant would have a right, previous to the trial, to demand and receive of the respondent a written specification of the acts of cruelty by which she intends to support such general allegation; with the times, places, and circumstances of their occurrence, as far as they can reasonably be given.
    The general practice in the English Ecclesiastical Courts will not be adopted by the Court of Common Pleas in divorce cases, arising under our Act of Assembly of 1815.
    Whore the withdrawal of a wife or husband from mutual cohabitation has been the result of agreement; or where the withdrawal of one has received the subsequent approbation of the other, the continuity of absence under such circumstances is not a wilful and malicious desertion. Such assent or acquiescence in a desertion are revocable acts. And if either party persists in a state of separation after such revocation, he or she henceforth would occupy the position of a party quitting cohabitation on his or her own motion.
    The reasonable cause which will justify a wife or husband in quitting and abandoning each other, is that which would entitle the party so separating him or herself to a divorce.
    That cruelty within our state which entitles a wife to a divorce from her husband, is actual personal violence, or the reasonable apprehension of it; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe; and the latter may exist without the former.
    8o a husband may, by a course of humiliating insults and annoyances, practised in the various forms which ingenious malice could readily devise, eventually destroy the life or health of his wife, although such conduct may be unaccompanied by violence, positive or threatened. The cruelty is judged from its effects; not solely from the means by which those effects are produced.

      Jan. 22.
    This was a libel for a divorce, brought by Pierce Butler, libellant, v. Frances Ann Butler, respondent.
    The only ground set forth in the libel was wilful and malicious desertion, without reasonable cause, from the habitation of the libellant. It was in the common form. To this libel the respondent put in an answer. First, she denied that she had, on the day set forth in the libel, or at any time before or since, wilfully and maliciously deserted and absented herself from the libellant and his habitation. The answer then proceeded, and stated that it was true that on the 10th day of September, 1845, she did leave and absent herself from the habitation of the libellant, and that she has ever since been absent. The answer then proceeds, and denies that such leaving of his habitation was a desertion within the provisions of the law; because that, for a long time anterior to the day mentioned in the libel, the libellant had separated himself from her, as a husband, and had withdrawn himself from her. The answer then proceeds to state that, in consequence of his wrongful, cruel, and unlawful conduct towards her, while she was in his habitation performing her duties as a wife, she would, under the law of the state, have been justified in quitting his house without the legal consequences of a desertion.
    The answer also stated, that when she did leave his habitation and society, and absent herself, it was with his assent, and license, and subsequent approval, and acquiescence therein, and continuance thereof.
    The answer also stated, that for a long space of time before she left his habitation, the conduct of the libellant was such as was designed and calculated to force her to withdraw from his society and habitation.
    The respondent further set forth in her answer, that she would have been justified in absenting herself from the society, fellowship, and habitation of the libellant without his license, approval, or acquiescence, because of his cruel and barbarous treatment, and offering such indignities to her person as to render her condition intolerable, and life burdensome, and thereby force her to withdraw from his house. The respondent then asked leave to submit what she called a narrative in support of the various allegations in the answer, and with her answer submitted a narrative, with the exhibits, which occupied about sixty printed pages of the paper-book. She then concluded her answer by asking an issue, that the facts might be tried by a jury.
    The counsel for the libellant filed exceptions to the answer, and moved that the narrative, or historical sketch of the matrimonial difficulties between the parties, might be stricken from the record.
    The cause was argued upon these exceptions by Messrs. Oadwa-

      lader and Dallas for the libellant, and Messrs. Grerhard, Meredith, and Mr. Ohoate, from Boston, for the respondent.
   The following opinion of the Court on the whole case was delivered by

ICiNG, President. —

The libellant in his libel, which is in the brief and sententious form peculiar to our practice, sets forth that his wife, the respondent, did, in violation of her matrimonial obligations, on the 1,1th of September, 1845, wilfully, maliciously, and without reasonable cause, desert and absent herself from him and his habitation, and since that time has continuously persisted in such desertion and absence. It concludes with a prayer for the divorce from the bond of matrimony, given by the Act of Assembly to the injured party, under such circumstances. To this libel, the respondent, Frances Ann Butler, has answered — in which answer she first denies that, on the 11th day of September, 1845, or at any other time before or since, she had wilfully and maliciously deserted and absented herself from the libellant and his habitation. She then proceeds to state that it was true, and that she therefore admits, that she did leave and absent herself from the habitation of the libellant on the 10th day of September, 1845, and that she has ever since remained so absent. But she denies such leaving and absence to have been desertion. First, because, for a long time previous, the libellant had separated himself from her as a husband, and because of his wrongful and unlawful conduct towards her while in his habitation, which would have justified her in quitting it without incurring the legal consequences of desertion. Secondly, because she had the assent and license of the libellant, so to quit his habitation, and absent herself from it, and his subsequent approval and acquiescence therein; and also, because his conduct to her for a long space of time before she so quitted and absented herself, was designed and calculated, and such as to force her therefrom. Thirdly, because she would have been justified in so absenting herself without such license, approval, acquiescence, or design, by the libellant’s cruel treatment of her, and by such personal indignities offered by him to her as rendered her condition intolerable and life burdensome. She then “ craves leave to submit” what she terms a “narrative in support of these allegations,” which “narrative,” with its subjoined exhibits, occupies near sixty printed pages. At the conclusion of this narrative, she asks that her cause may be tried by a jury, on an issue or issues to be framed for thg.t purpose; a right given to her by Act of Assembly.

Independent of this historical sketch of matrimonial discords, the answer, like the libel, would hare been in perfect concord with our simple, facile, and convenient practice in the administration of the divorce laws. It would have been the brief, but clear and precise assignment of causes, why the respondent had quitted and absented herself from the common habitation, and the negation, that such quitting and absence was a wilful and malicious abandonment of her marriage duties. The parties would thus have reached a complete issue, and the cause, according to our practice, been ripe for a hearing, either before the Court, if a jury trial had not been asked, or before a jury, if such a claim had been interposed.

Previous, however, to proceeding to trial, the libellant would have had the right to demand, and receive of the respondent, a written specification of the acts of cruelty, or other circumstances, by which she proposed supporting her general allegations; with the times, places, and circumstances of their occurrence, as far as these could be reasonably and practically given. The giving of such notice would not have made the facts contained in it evidence of course in the cause. On the trial, all such matters as should have been deemed inadmissible on the ground of irrelevancy or inadequacy, could have been objected to when offered, and would have been admitted or rejected by the Judge who presided at the trial, according as he considered the objections taken valid or otherwise.

Why this course has not been pursued — this regular, usual, and orderly course — arises from the useless introduction of Mrs. Butler’s narrative” into the answer, which the libellant seeks to treat as if it were a responsive allegation in an English Ecclesiastical Court, -in these Courts, facts intended to be relied upon by parties to divorce cases, are stated in the pleadings at length, broken, however, into separate portions, technically termed Articles ; in which the facts are alleged under separate heads, according to the subject-matter, or the order of time in which they have occurred. Before such articles are admitted to proof, it is competent to the adverse party to object to their admission, either in whole or in part; in the whole, when the facts altogether, if taken to be true, will not entitle the party propounding the articles, to the demand which he makes, or to support the defence which he sets up ; in fart, if any of the facts pleaded are irrelevant to the matter in issue, or could not be proved by admissible evidence, or are incapable of proof.

These objections are made and discussed before the Ecclesiastical Judge, w'ho admits an article to proof, or rejects it, according as he may be of opinion, that it exhibits a legal cause of complaint, or proposes to offer legal proof of sucb a legal cause, or otherwise. If the parties state candidly the facts capable of proof, they can thus take the opinion of the Judge, in the first instance, whether, in such a case as the one proposed to be proved, the party complaining has any legal remedy for his supposed wrong; or whether the testimony by which he proposes establishing it, is relevant or adequate for that purpose.

From the decision of the Ecclesiastical Judge, admitting or refusing proof of an article, an appeal lies to a higher tribunal. The libellant, as has been observed, treating the “ narrative” introduced into the answer as a responsive allegation in an Ecclesiastical Court, has replied to it, first, by what he terms an “ additional allegation, with objections to the defendant’s answer and allegation;” second, by “ responsive and additional allegations as to part of the defendant’s allegations;” and, third, by “objections to the defendant’s allegations;” which counter-pleading occupies twenty-seven pages of the printed paper-book. This, with the sixty pages of the answer, makes a pretty formidable exhibition of ecclesiastical pleading, which it is, however, possible, might be admissible in those Courts. But we are in a Pennsylvania court of law, administering a Pennsylvania statute, the course of procedure under which has been familiarly known throughout the Commonwealth for a long series of years. If we should agree with the libellant, and treat the respondent’s “narrative” as a regular ecclesiastical responsive allegation; if we should reject it, or order its reformation, by directing it to be subdivided into articles; or if, dispensing with that form, we should arrange the respondent’s alleged facts ourselves, and proceed to consider and decide upon their relevancy, their adequacy, or their legal capability of proof, we of course fall at once into the practice of the English Ecclesiastical Courts; and as there cannot be two. systems of procedure under the same law, we abolish our own. Where this change would end; how the Supreme Court would be able to revise our proceedings ; whether, if our judgment in a given case rejecting an article should be reversed, that Court would take proof of such rejected article, or order the case back to this Court with directions; are questions which might be multiplied, in order to show the difficulties that would arise from such á radical change in our practice as that proposed in this case. If anything was wanting to convince us of the total inexpediency of changing our simple and convenient system, for the voluminous and expensive one of Doctors’ Commons, the record before us would furnish a crying evidence of it. If any would be benefited by the change,, which we doubt, it certainly would not be the good people of this Commonwealth, whose truest interests are best subserved by laws plainly and intelligibly expressed, administered through forms simple, facile, and inexpensive. If articled and detailed facts are requisite in an answer, they must be equally so in the libel, and such is actually the ecclesiastical practice. Of consequence, by such a system, the volume of the proceedings must be immensely extended, the expenses enhanced, determinations delayed, and relief made practically inaccessible to those for whose protection laws are specially framed: the feeble, the poor, and the oppressed.

In her denial of the wilful and malicious desertion charged against her in the libel; in assigning the libellant’s license and cruelty as justificatory reasons for her departure from the'common habitation; the respondent did all she was required to do, in order to demand 'that this fact should be tried by.jury. If specially called upon before such trial for precise statements of the facts intended to be relied upon by her to sustain her answer, and which the libellant may regard as too generally charged therein, she is bound to furnish them. All the matter, however, introduced into the answer in the shape of a “narrative,” is pure surplusage; — a statement of facts, some of which would, and some of which would not be received in evidence on the trial. It is therefore not the subject of exception, either as to its form or substance. Being extraneous to the formal record, it must be stricken from it. The exceptions of course fall with it. The case is thus brought back to its true and simple elements, and made to assimilate its features to the hundreds of other analogous causes which occupy the Courts of the Commonwealth. The libel will then charge against the respondent a wilful and malicious desertion, -without reasonable cause, of her husband and his habitation, persisted in for two years. The answer will deny such wilful and malicious desertion, and assert that an admitted quitting of, and absence from, the common habitation, by the respondent, was licensed by the express assent of the libellant, or justified by law from reasonable causes supervening, viz. unkind treatment and cruelty on the part of the husband. The issue between the parties under our practice will be thus completely formed, and ripe for trial by jury. On the trial, the jury must decide whether such abandonment of the common domicil was with the previous license and assent, or subsequent approbation and approval of, the husband; or, if the respondent fails in establishing this position, whether the unkind treatment and cruelty of tbe husband towards ber was of that character which formed a reasonable cause for her departure.

In thus 'determining that the cause has been submitted to us in a manner which does not regularly raise the questions of fact so elaborately discussed, we are not to be understood, as in the slightest degree expressing any opinion on the merits of the controversy. When the case has been submitted to a jury; when the facts on both sides have been fully heard, the time will have arrived for such an .expression of opinion. Before, such expression would be certainly premature, and might be grossly unjust. Indeed, it scarcely, could be otherwise .than unjust, because it would be formed on a one-sided view of the subject.

Here this judgment might close; but as several legal propositions have been discussed before us, which, of necessity, must arise on the trial of the jury issue, it is proper we should express our opinions in regard to them, as rules for the future conducting of the cause.

The first of the propositions is this : — Suppose the evidence to establish, that the respondent left her husband’s habitation with his license and assent, or continued her absence with his subsequent acquiescence and approval, what would be the legal effect of either on the libellant’s cause ? Although no Court determining on the marriage relation, recognises such consent-separations as arrangements strictly legal; yet, when it is clearly shown that the withdrawal of a wife or husband from mutual cohabitation, has been the result of such an understanding or agreement; or where the withdrawal of one has received the subsequent approbation of the other, the continuity of absence under such circumstances is not a “wilful and malicious desertion.” The malice of the desertion arises from its being the perverse act of. the one, in refusing the performance of the matrimonial obligations and duties, which the other has the legal right to require. But when such separation has been the result of mutual arrangements, and these clearly established in proof, then each are in equal fault in this particular, and neither can claim a legal right against the other, in consequence of an act in which he or she has been an equal participant. Such assent or acquiescence, however, are revocable acts.

And if either party persists in a state of separation after such revocation, he or she thenceforth occupies the position of a party quitting cohabitation on his or her own motion. In the celebrated case of the Earl of Westmeath v. The Countess of Westmeath, 2 Haggard’s Rep. Supplement, a previous separation by formal articles was considered as not in any way affecting the legal relation between the parties, so as to prevent a decree for the restitution of conjugal rights. As a deed of separation upon mutual agreement on account of differences, though containing a covenant not to bring a suit for restitution of conjugal rights, such articles are held to offer no impediment to such a suit. To this effect are also the cases of Smith v. Smith, and Fletcher v. Fletcher, cited in Westmeath v. Westmeath. But so long as the consent on which the original absence was founded, or continued in, is not withdrawn, a continuity of the absence -is not desertion within our Act of Assembly. Of course, if either party has the legal right to separate from the other, for causes which lawfully justify such separation, and subsequently a consent-separation takes place between them; a withdrawal of that consent by the aggressor, will leave the party aggrieved in no worse position than that originally occupied. A refusal to renew cohabitation, would be justified or otherwise, according to the state of things which preceded the separation.

The next question agitated involves the construction of the clause in the Act of Assembly which defines desertion. This is said to take place where either party shall have committed wilful and malicious desertion, and absence from the habitation of the other, without reasonable cause, for and during the space and term of two years.” What is meant by the phrase “ reasonable cause ?” On the one hand it is insisted, that reasonable cause means such a cause as would have enabled the absenting party to have obtained a divorce, if, instead of quitting cohabitation, the latter had assumed a more active position and asked for a divorce. On the other, it is argued, the reasonable causes of this law are not definable by any precise rule, but are such causes as in any case submitted will satisfy a court or jury that the separation was a justifiable act.

In every point of view in which this question can be examined, it is one of grave magnitude. Too liberal a construction given to the words reasonable cause” could not fail to invite to separations between husband and wife, which otherwise never might occur; while a construction too limited might subject the party most meriting legal protection, because most needing it, to hardships and suffering which are revolting to the feelings of every right-minded man. But tvhen the solution of questions of this embarrassing nature is presented to public functionaries charged with the maintenance and conservation of social morality, they always should be considered with reference to this fundamental truth: — That laws, framed for the government of the whole people, must look to the good of the whole; and that we should be satisfied with their operation when it best promotes the general moral order of civil society, even though in a particular case it may produce apparent hardship. That the general moral order is best promoted by discountenancing matrimonial separations, unless for weighty and substantial causes, is undisputed and indisputable; at the same time the public weal is thus best served; the true interest of the immediate parties, the happiness and respectability of their common offspring, the feelings of those united to them by the ties of kindred and affection, are most effectually advanced and protected. Controversies easily settled in the domestic forum, when it is known that the law expects of married persons mutual concessions, forbearance, and even submission to great wrongs, often would, under a different legal system, end in disastrous and permanent separations, disgraceful to the parties, distressing to their children, and humiliating to their friends. “When,” says a great Judge, “people understand that they must live together, except for a few reasons known to the law, they learn to soften by mutual accommodation the yoke which they know they cannot shake off; they become good husbands and good wives, from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties it imposes.”

From this course of reflection we are led to adopt the doctrine, that the reasonable cause which will justify wife or husband in quitting and abandoning each other, is that, and only that which would entitle the party so separating him or herself to a divorce. This is the doctrine of the English Ecclesiastical Courts, which, long under the presidency of the finest minds of that country, are rich sources from which we may extract principles, however we may differ in the mode of applying them. When in that country cohabitation is suspended by husband or wife, by his or her own authority merely, without a sufficient reason for the act, the aggrieved party is entitled to the aid of the Ecclesiastical Courts, in enforcing a restoration of the duties of mutual cohabitation. This remedy is technically called a restitution of conjugal rights. In its application it has ever been held, that nothing can be offered in bar to the wife’s return to her husband, except such facts as would entitle her to a divorce, in case she had brought a suit against him for a separation: Holmes v. Holmes, 2 Lee Rep. 116; Oliver v. Oliver, 1 Haggard Consistory Rep. 361; Dysart v. Dysart, 1 Robertson’s Ecc. Rep. 106: Coote’s Practice in Ecc. Courts, 367. These cases decide a principle precisely analogous to that which we have adopted. A principle, practical in itself, and appreciable by every one to whom it is stated; a principie as well supported by authority as recommended by sound morality.

The opposite doctrine, by creating no standard by which a proposed reasonable cause is to be measured, leaves that to the arbitrament of the judge or the jury, in each case as it arises. Of course, under such a system, or such absence of all system, decisions would vary with the varying temperaments, characters, and education of men. To-day it would be decided that a given state of facts affords reasonable cause for a wife quitting her husband; tomorrow, the same facts, before another tribunal, would be held not to be reasonable cause for a husband quitting his wife. Thus would the obligation of a contract, in the maintenance of which in full vigour and integrity society is most deeply interested, be left in a state of the most intolerable vagueness and uncertainty. Such a system would not fail to invite adventurers in this judicial lottery. But the opposite doctrine, instead of inviting separations for light and frivolous causes, will render them unwise and inexpedient, because they may compromise, but never can advantage the guilty party. The practical working of such a doctrine argues most cogently against its soundness. It would continually present the spectacle of the abandonment of marital duties by one party, for causes confessedly inadequate to entitle him or her to a divorce; and yet so far recognised by the law, as to exempt the party quitting cohabitation from any legal liabilities consequent on the act. It would be throwing back such parties on society, in the undefined and dangerous position of a wife without a husband, and a husband without a wife. It would maintain the marriage contract in force, and yet afford no means of enforcing its obligation in cases where it would be admitted that no adequate cause, existed for its dissolution. The rule, therefore, that repudiates such quasi dissolution of the matrimonial union by the act of either husband or wife, is the rule alike of sound law, right reason, and social morality.

The remaining subject of examination is the construction of that clause of the Act of Assembly which gives a divorce to a wife “ when the husband shall have, by cruel and barbarous treatment, endangered his wife’s life, or offered such indignities to her person as to render her condition intolerable, and life burdensome, and thereby forced her to withdraw from his house and family.” What is meant here by “cruel and barbarous treatment, endangering life ?” — “indignities to the person, rendering the condition intolerable, and life burdensome ?” Do they mean the positive infliction of personal sufferings, or the threat of them; or do they embrace those wounds of the spirit, which rudeness, austerity, petulance, or ill-temper can inflict ?

How far the idea of marital cruelty may be safely carried, considered with regard to its adequacy to the legal separation of husband and wife, has been a subject much considered by jurists of all civilized nations. All have felt that it ought to be viewed as a practical question, affecting the most interesting of social relations, and one not to be determined rashly or impulsively. The difficulty of defining the exact line, between that which is legal cruelty, adequate to separate judicially husband and wife, and those painful domestic broils which courts cannot regard as sufficiently serious for such intervention, has always been admitted. Sir William Scott, in his great judgment in Evans v. Evans, 1 Haggard Cons. Rep. 35, “ declines the task of laying down a direct definition of cruelty,” contenting himself with what he terms negative descriptions, which though they show what is not cruelty, he considers “perhaps the safest definitions which can be given, under the infinite variety of possible cases that may come before the Court.” Premising that it is the duty and inclination of Courts to keep the rule extremely strict, he declares “that the causes must be grave and ■weighty, and such as show an absolute impossibility that the duties of the married life can be discharged. In a state of personal danger, no duties can be discharged ; for the duty of self-preservation must take place before the duties of marriage, which are secondary both in commencement and obligation; but what falls short of this is with great caution to be admitted.”

In enumerating these negative descriptions of cruelty, inadequate to justify a sentence of divorce, he declares that “what merely wounds the mental feelings is in few cases to be admitted, where they are not accompanied by bodily injury threatened or menaced.” That “mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty.” That it was “ still less cruelty, where it wounds not the natural feelings, but the acquired feelings, arising from particular rank and situation; for the Court had no scale of sensibilities by which it could gauge the quantum of injury done and felt; and, therefore, though the Court would not absolutely exclude considerations of that sort, where they are stated as matters of aggravation, yet they cannot constitute cruelty where it would not have otherwise existed.” In a summary of principles in the same cause he declares that he had “ heard no case cited in which the Court had granted a divorce without proof given of reasonable apprehension of bodily hurt, apprehension being enough; for the Court was not to wait till the hurt was actually done — hut the apprehension must be reasonable, not an apprehension arising merely from an exquisite and diseased sensibility of mind.” In Oliver v. Oliver, 1 Haggard Const. Reports, 361, he declares “ that words of mere present irritation, however reproachful, will not enable the Court to pronounce a sentence of separation. Words of menace importing the actual danger of bodily harm, will justify its interposition.” In Holden v. Holden, 1 Haggard Const. Reports, 453, he says “ everything is in legal construction cruelty which tends to bodily harm, and in that manner renders cohabitation unsafe; wherever there is tendency only to bodily mischief, it is a peril against which the wife must be protected; because it is unsafe for her to continue in the discharge of her'conjugal duties.” In Harris v. Harris, 1 Phillimore, 111, he says that it is not the habit of the Court to interfere in mere domestic quarrels, there must be something which makes cohabitation unsafe.” In Waring v. Waring, 2 Phillimore, 132, he asserts the definition of legal cruelty is that which may endanger the life or health of the party.” In this case he adds to his previous enumeration of negative descriptions of cruelty, the charge against the husband of forbidding to his wife any intercourse with her own family. “ For,” says he, “ although it might be a harsh exercise of the husband’s authority, yet he might be justified in denying such intercourse; that although a woman might be amiable, her connexions might not be so; that there might be many reasons to justify a husband in denying such intercourse, and that though it might be harsh, it would be going too far for the Court to interfere.” Although, in the view of this true founder of the modern English law of divorce for the cause of cruelty, causes which involve the life or health of the sufferer are essential to justify the intervention of the Court, he cautiously avoids saying that these results can, in the eye of the law, only flow from actual personal violence, or the threat of it.

In selecting causes of ordinary occurrence, wdiich he repudiates as inadequate to constitute legal cruelty, he leaves himself uncommitted as to the “ infinite variety of possible cases which might come before the Court” under this head. In rejecting “ what merely wounds the mental feelings,” he confines himself to that which is not accompanied with bodily injury either actual or menaced.” In pronouncing that “ mere austerity of temper, rudeness of manner, a want of civil attention and accommodation, and even occasional sallies of passions” are in themselves insufficient causes, he speaks of those which do not “threaten bodily harm.” When, in Holden v. Holden, he describes as legal cruelty “ every thing which tends to bodily harm, and in that manner renders cohabitation unsafe,” he does not limit the otherwise generality of this language by an imprudent attempt at defining what would be such, under all possible circumstances. And when in Waring v. Waring he apparently departs from the cautious path he had previously marked out for himself, and attempts to define affirmatively legal cruelty, he does so in language sufficiently broad to leave his former positions unshaken. It is to be that which “ may endanger the life or health of the party.” In Westmeath v. Westmeath, Sir Christopher Robinson, observing on the past cases, says in his conclusion from them all, “ that the Ecclesiastical Courts have hitherto been uniformly strict in requiring proof of actual injury or of real apprehension of injury, as it may affect the safety or health of the person, to justify divorce on the ground of cruelty.” But still we do not understand this Judge as saying that personal or threatened personal violence, are the only facts which could afford the evidence necessary to establish this state of things in any and every case.

In Neild v. Neild, 4 Haggard Consistory Reports, 265, Dr. Lushington, the presiding Judge, held, that “ the main test to be applied to the consideration of the libel was whether all the facts assuming them to be true, with which Mr. Neild was charged, were of a nature and description to satisfy his mind that cohabitation could no longer subsist betw'een the parties without personal danger to Lady Caroline Neild.” Where,” said he, “a strong conviction exists in the mind of the Court that the personal safety of the wife is in jeopardy, or where even -it may seem reasonable ground to apprehend such a consequence, it is its bounden duty to protect the wife from such risk and danger.” It is trué that to this principle, which is in harmony with the previous doctrines of Sir William Scott, he adds: “ that in these suits the species of facts most generally adduced are: First, personal ill treatment, which is of different kinds — such as blows or injury of. any kind. Secondly, threats of such a description as would reasonably excite; in a mind of ordinary firmness, a fear of personal injury. For causes less stringent than these, the Court has no power to interfere and separate husband and wife.”

In Dysart v. Dysart, 1 Robertson’s Ecclesiastical Reports, 106, the same Judge decided against the wife, apparently applying these principles. But in the same case (page 111) he holds that the refusal by a husband to furnish a wife with “necessaries and comforts” within his pecuniary means, and suitable to the wife’s education and habitudes, was an act of legal cruelty. He very correctly confines himself to “necessaries and comforts,” not luxuries and enjoyments. And holds that as to everything beyond “ necessaries and comforts,” the husband, so far as the law is concerned, is the sole judge ; that no human tribunal has authority to interfere, and none could interfere with real benefit to the public interest.

The judgment in Dysart v. Dysart came before the Court of Arches on an appeal; when it was reversed by Sir H. Jenner Fust, and the Countess of Dysart held to have established an adequate eause of divorce. The Judge, after stating the general doctrine, previously laid down by Sir William Scott in Evans v. Evans, that “mere austerity of temper, petulance of manner, rudeness of language, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty,” says, “ From this I deduce this inference; if austerity of temper, petulance of manner, rudeness of language, a want of civil attention and accommodation, occasional sallies of passion, do threaten bodily harm, they amount to legal cruelty.” See London Jurist, March, 1848, page 492.

The general doctrine of the English Ecclesiastical Courts, with regard to the divorce for the cause of cruelty, has received the approbation of the most eminent jurists, and the most learned Courts of the Union. In New York it was recognised and adopted by Chancellor Kent in Barriere v. Barriere, 4 Johns. Chan. Rep. 189, and by Chancellor Walworth in Perry v. Perry, 2 Paige’s Chancery Rep. 502; by the Supreme Court of Connecticut in Shaw v. Shaw, 17 Connecticut Reports, 189; by the Supreme Court of Kentucky in Finley v. Finley, 9 Dana’s Reports; and by the Supreme Court of Massachusetts in Warren v. Warren, 3 Mass. Rep. 321.

Divorces, or rather separations for cruelty, ssevitia, were proceedings familiar to the Courts of Continental Europe, and were regulated by principles similar, though not as stringent as those of the English Canonical Code. The system under the code of the old' French Monarchy, before the Revolution, is treated of by the learned Pothier in his “Traité du Contrat du Mariage,” partie 6, chapitre 3, page 269. “ The separation of habitation,” says this writer, “is the relief which, for just causes, is accorded by the Judge to one of the parties from the obligation of living with the other, and performing conjugal duties, without, however, severing tbe marriage tie.” Discussing the principles on which this law should be administered, he sajs, “ The union of husband and wife, which is formed by Grod, does not permit to a woman to demand the separation of habitation, if it is not for very great causes.” What are just causes, he admits, is not easy to determine, but holds they are to be left to the arbitrament and prudence of the Judge. Proceeding to enumerate what causes have been held sufficient, he first refers to cases of bad treatment, where the husband has struck or attempted to strike his wife; these being the most ordinary causes of separation. Second, to cases of bad treatment which had not gone to this extent. As an example of this kind adequate to authorize a divorce, he gives the case of the wife of a public officer. The husband, he says, had never struck his wife or offered to strike her, but from the first year of their marriage, and during all those which followed, he never ceased to testify towards her the greatest contempt, on all occasions, before persons who frequented his house, before the domestics, and even before their children, whom the father excited to ridicule their mother. Third, cases of the refusal by the husband, through inhumanity towards his wife, to furnish to her in a state of infirmity the necessaries of life, although he had the means to do so. Fourth, the accusation of a capital crime prosecuted calumniously against his wife by the husband.

The modern French code of divorce approximates- very nearly to our own. The absolute divorce, among other causes, is given by the Code Napoleon for “ violence, ill usage, or grievous insults of one of the spouses towards the other.” The words of the code are Les exces, seviees ou graves injures, del’un epouse envers Vautre.” These words, like those of our own statute, are somewhat vague and general. But the French tribunals have assigned to them definite meanings. “Les exces,” are said by Poullier (Le Droit Civil Fran§ais, vol. 2, p. 41), to be acts of violence which exceed all measure, and may put the life of the spouse in danger. “Les seviees” are acts of cruelty which do not put the life in danger. “ Injures graves,” such insults as tend to destroy the reputation of the outraged spouse, that attack her probity, her morals; and that harsh words will not suffice.

These citations are of value in showing the practical construction given by an enlightened nation to a code analogous to our own; and so far are useful aids in the construction of kindred enactments.

Aided thus by the lights derived from foreign and domestic jurisprudence, we approach the construction of our own statute with less diffidence. And that construction in our opinion is this: That the cruelty within our statute which entitles a wife to a diyorce from her husband, is actual personal violence or the reasonable apprehension of it; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe. The latter may exist without the former. The denial of “ necessaries and comforts” by a husband to his wife, he having the means to furnish them, would certainly endanger her life and health, though done in the blandest way. Of course, “luxuries and enjoyments” are different things from “ necessaries and comforts” within the compass of the husband’s means. What luxuries and elegant enjoyments a husband shall extend to his wife, are matters referable- to his own generosity and liberality, with which no Court can inter fere on any rational or practical principle. The case of Dysart v. Dysart, 1 Robertson, 111, shows this to be the present doctrine of the English Canon Law Courts, and was that of the French Code a century ago, as we have shown by Pothier.

Again, a husband may, by a course of humiliating insults and annoyances, practised in the various forms which ingenious malice could readily devise, eventually destroy the life or health of his wife, although such conduct may be unaccompanied by violence, positive or threatened. Would the wife have no remedy in such circumstances under our divorce laws, because actual or threatened personal violence formed no element in such cruelty ? The answer to this question seems free from difficulty, when the subject is considered with reference to the principles on which the divorce for cruelty are predicated. The Courts intervene to dissolve the marriage bond under this head, for the conservation of the life or health of the wife, endangered by the treatment of the husband. The cruelty is judged from its effects; not solely from the means by which those effects are produced. To hold absolutely that if a husband avoids positive or threatened personal violence, the wife has no legal protection against any means short of these, which he may resort to, and which may destroy her life or health, is to invite such a system of infliction by the indemnity given the wrongdoer. The more rational application of the doctrine of cruelty is to consider a course of marital unldndness, with reference to the effect it must necessarily produce on the life or health of the wife; and if it has been such as affect or injure either, to regard it as true legal cruelty. This doctrine seems to have been in the view of Sir H. Jenner Fust, in Dysart v. Dysart, when he states he deduces as an inference from what Sir William Scott ruled in Evans v. Evans, that “if austerity of temper, petulance of manner, rudeness of language, a want of civil attention, occasional sallies of passion, do threaten hodily harm, they do amount to legal cruelty.” This idea expressed axiomatically would be no less than the assertion of this principle: that whatever form marital ill-treatment assumes, if a continuity of it involves the life or health of the wife, it ;s legal cruelty. The principle of Dysart v. Dysart is not only important, as being the most recent expression of opinion on this subject in a high Ecclesiastical Court, but because the principle on which that cause is placed, is considered by the Judge as a just and necessary deduction from those settled by Sir William Scott in the earlier cases.

If these views are well founded, there is no real difference between our opinions on the question of legal cruelty, and those of the English Canon Law Courts as now understood and administered. But were it otherwise, we should still, with all becoming deference to these high authorities, adhere to our own convictions. In limiting our intervention in matrimonial causes, in which cruelty is charged, to cases in which life or health are in any way involved, we occupy safe and prudent ground. A case of this kind would present a different state of things from one of matrimonial discord produced by mere acerbity of temper, or rigidity of domestic discipline. In such cases Courts have most wisely refused to interfere, referring the parties to their domestic forums for the adjustment of their differences, and recommending to the aggressor, the improvement of his manners, and to the aggrieved, the remedies of decent resistance or prudent conciliation. The discrimination of mere domestic discords, from the species of malicious cruelty, on which we have perhaps too long commented, can readily be made by any tribunal to whom a trust of such magnitude is confided.

It was ingeniously argued by the respondent’s counsel, that the words “ indignities to the person,” in our statutes, were words equivalent to personal indignities ; and that therefore acts which could bo classed under that category, were acts for which a divorce could be granted under our law. If this argument is sound, then undoubt edly personal insults and reproachful language would be causes of divorce, because they rank among the grossest personal indignities. This construction, it will be perceived, would introduce into our code as a cause of divorce the injures graves” of the Code Napoleon • for to this exactly would the result of such a construction arrive.

It is quite certain that our law does not, in terms, make this one of the causes for the dissolution of the marriage bond; and it seems to us clear that no just principle would authorize the Courts to do so under the pretext of construction. The words “shall offer such indignities to her person,” are the equivalents of the offered or threatened violence of the English Canon Law, or the “ services” of the Code Nap.oleon, and do not embrace the causes of “injures graves” — grievous insults. The English Canon Laws, like our own, have always refused to regard mere personal insults as adequate causes for the separation of husband and wife; regarding such a doctrine as tending too greatly to relax a social bond, which, from before the time of Tacitus, the Saxon race have considered a sacred institution. “When,” says that Roman historian, speaking of the manners of the Germans, “ the bride has fixed her choice, her hopes of matrimony are closed for life. With one husband, as with one life, one mind, one body, every woman is satisfied; in him her happiness is centred; her desires go no farther; and the principle is not only an affection for her husband’s person, but a reverence for the marriage state.”

The Court have thus noticed all the points by them deemed material in the cause. Its future course will be that indicated: viz. trial by jury on the bill and answer.


source: Caselaw Access Project

author: PARSONS, Judge. —

license: Public Domain

text:
    Wilson v. Corbin.
    Where property is devised to children or grandchildren, to he divided on the eldest arriving at the age of twenty-one years, it is to be distributed among all those who are then living and entitled to take under that description of persons referred to in the bequest.
    The general rule relative to cases of this kind is, that when legacies are given to a descriptive class of persons, payable at a future period, as to the children of B., when the youngest shall attain twenty-one, or to be divided among them on the death of C., any child who can entitle himself under the description at the time of distributing the fund, may claim part of it. And this rule applies as well to children living at the period of distribution, though not born till after the death of the testator, as those born before, and living at the happening of the event.
    So also in bequests to children, or other persons who are designated as a class, the Court always endeavours to construe the period of distribution as late as it can, in order to include the greatest number of persons within the testator’s bounty.
    When a legacy is given to the children of A., when they arrive at the age of twenty-one years, it must be distributed among the children in esse at the time the eldest attains such age.
    Where a testator provided in his will, on his eldest grandchild arriving at the age of twenty-one, his estate should be divided among his grandchildren then living: Be Id, that those living when the first grandchild arrived at the age of twenty-one years, were the legatees entitled to receive the legacy.

      March 14.
    This was a bill in equity, brought by Janet Wilson, James H. Cowper, and Thomas Cadwalader, surviving executors, devisees, and legatees in trust named in the last will and testament of James , Hamilton, deceased, against Isabella Hamilton Corbin, the eldest grandchild of the said testator, Francis P. Corbin, her trustee, and Henry D. Gilpin, Esq., her attorney in fact, &c. The bill was friendly in its character, and seemed to be brought simply to obtain instruction from the Court, relative to the manner in which the plaintiffs should perform certain duties enjoined upon them by said will, and the time when it will be proper for them to carry those provisions into effect.
    The plaintiffs set forth that James Hamilton died on or about the 12th of April, 1829, seised and possessed of considerable real and personal property in this state and in Georgia, having first made his last will and testament, dated the 28th day of July, 1828, and that the same was duly proved since his decease. That the said testator devised and bequeathed to the complainants, and one Woodruff, who is since deceased, and the survivor of them, all his real and personal property of every description whatsoever, and wheresoever situate, together with the rents, issues, income, and profits thereof, in trust, nevertheless, that they, the survivor or survivors of them, &c., should or might sell, assign, transfer, or dispose of his property, or such parts or portions thereof, as they or a majority of them should, from time to time, judge expedient or necessary to carry into effect the several bequests and objects of his last will and testament.
    The bill, after referring to the manner in which the plaintiffs have in part executed the trusts reposed in them, proceeds and sets forth those bequests at length, on which the various questions arise which are now submitted to the Court for their decision, the first of which is as follows: “ I desire that my dwelling-house where I reside, in Walnut street, No. 260, city of Philadelphia aforesaid, with all and singular the appurtenances of every description now in use, or thereunto belonging, may, immediately on my decease, be freely held, occupied, and enjoyed by my said niece during her life^ at the same time wishing and expecting that, under this disposition of it, my son, with his wife, should he marry with the approbation of my said trustees, or a majority of them, may, if he wish, reside with her; and also my daughter Agnes and her children, should the be disposed to do so. But should it so happen that such an arrangement of my house, with the appurtenances, cannot be satisfactorily made, then my said trustees are authorized to dispose of the same to the best advantage, save and except that my plate shall be reserved and kept for my grandchild who shall first attain the age of twenty-one years; but should none of them reach that age, then I desire the same to be sold. Also, should any of my grandchildren lose their parents before arriving at age, I desire my executors to make suitable provision for their maintenance and education.”
    The bill also sets forth a further clause in the will, which is as follows : “ Also, it is my wish and desire that all my grandchildren should have the whole of my estate not otherwise disposed of by this will, equally between them, that on my eldest grandchild arriving at the age of twenty-one, my trustees and executors do make a reasonable valuation of my estate, and give such grandchild his or her proportion according to such valuation, and the number of grandchildren then living; that when the second grandchild shall arrive at the age of twenty-one, they shall give to such grandchild his or her proportion according to the same, or a new valuation then to be made if thought necessary; and so on in succession until a final division shall be made to the last grandchild ; and when the last grandchild shall arrive at full age, such an arrangement shall take place, if practicable, as will place all my grandchildren on an equal footing with regard to my estate, leaving it to my trustees and executors to adopt the most eligible plan for the purpose. And it is my further wish, that when the grandchild who may be thus entitled to a share is a female, her portion shall, in the event of her marriage either before or after her coming of age, be secured to her sole and separate use.”
    There was a devise over in case there should be no grandchild who could take under the will, and various other bequests. It was averred in the bill that the debts of the deceased were all paid, and that they have from time to time discharged the several annuities in said will bequeathed, so far as they have accrued and become payable to the respective annuitants, &c. That they have from time to time made settlements of their accounts as such executors, which have been confirmed.
    It was further stated in the bill that the testator left issue living at his death, only one son, who has no issue, and has never been married, and only one daughter, Agnes Rebecca, the wife of the said defendant Francis P. Corbin, and mother of said defendant, Isabella H. Corbin. The said Isabella arrived at the age of twenty-one years on the 21st day of October last. There then were, and are now, only two other grandchildren of the testator, both of them children of the said Agnes Rebecca Corbin, born since testator’s death, namely Elizabeth T., now aged 18 years or thereabouts, and Richard, now aged 12 years or thereabouts. It was also averred by the plaintiffs, that in obedience to successive decrees in a certain cause in equity heretofore instituted and still pending in the Court of Common.Pleas of Philadelphia county, the complainants, or some of them, have from time to time made certain payments to the said Francis P. Corbin, of moneys thereby directed to be paid to him for the maintenance, education, and outfit of the said Isabella during her minority, and of the said Elizabeth T. Corbin and Richard Corbin ; a schedule of which was annexed to the bill, stating the various sums thus paid; and the plaintiffs claimed to charge the share of the said Isabella with interest at the rate of five per cent, per annum. The complainants further stated, that the said Isabella, shortly after attaining her age of twenty-one years, sealed and delivered a certain declaration of trust, and letter of attorney, in which she desired the valuation and division of the estate of the testator should be made in pursuance of the requisitions of the will, and that the plate, and her proportion of all the property to which she is entitled under said will, should be delivered and paid to her, and that a full and complete settlement of her share of the estate and property should he made, and her share secured to her sole and separate use; and for that purpose she had transferred, assigned, and conveyed to the said Francis P. Corbin in trust for her sole and separate use during her life, &c.; and had also thereby constituted the said Henry D. Gilpin, Esq., her attorney, fully to act for her in the matters and things necessary to be done by her, pursuant to said last ■will and testament.
    The bill also stated that the said Francis P. Corbin, and the said Isabella, acting by her said attorney, have called upon and required the complainants to proceed to make a valuation and division, that, so far as may concern the said Isabella’s share of the said testator’s estate, it may be a final one, and a present absolute allotment of one-third in value of the whole of the said estate as her share thereof; and have required the said plate to be presently and absolutely surrendered, as having become vested in possession in the said Isabella when she attained the age of twenty-one years aforesaid.
    The complainants also state, that, with the approbation of the defendants, they have reserved and set apart a fund sufficient to secure the payment of the annuities and contingent or other charges and claims upon the estate of the testator. With the intent and purpose to make, as far as may now be practicable, the valuation and division of the testator’s estate directed by his said last will and testament, they have valued all the remaining parts of the estate, both real and personal, wheresoever the same is, a schedule of which has been made. They then asked, in the bill, direction on the four following points or propositions: “ First, whether the possible future existence of either grandchildren, or another grandchild of the said testator than the three above named, is a contingency which the complainants have any authority or discretion to take into consideration in making the valuation, division, and allotments directed as aforesaid by said last will and testament; and if at liberty so to do, then, secondly, to what extent, and in what manner, any discretion conferred upon them by the said last will and testament can or ought to be now exercised, with a view to the contingency of the future existence of such grandchildren; thirdly, whether during the lifetime of the said Janet Wilson, and before the occurrence of the contingency provided for in the said last will and testament, for the sale of the said house in Walnut street, the said plate is to be deemed to belong in possession to the said Isabella; and fourthly, what rate of interest should, for the purpose of equalization, be charged upon the items specified in a certain schedule annexed to the hill.” The complainants say, they are not certainly advised what their duty as trustees requires them to do. That under each head they are willing and prepared to do whatsoever may he reasonably required of them, as soon as known; that they have applied to the defendants in a friendly way to obtain legal advice and direction in relation thereto, but their applications have been rejected by the defendants, who allege that those propositions involve no real doubt or difficulty, or sufficiently serious to render such advice necessary or requisite.
    To this bill the defendants filed an answer, in which they admitted all the facts set forth; but deny that either or any of the four propositions or questions propounded by the complainants in their bill do arise in the premises, and that they can .safely execute their duties as trustees therein, without the aid or decision of a Court of Equity, because they say that by the express terms and provisions of said last will and testament, and upon the facts and occurrences in the said bill of complaint, and admitted by the defendants, the said Isabella Corbin, being the eldest grandchild of the said testator, was, on arriving at the age of twenty-one, entitled to receive her proportion of the whole of the testator’s estate not otherwise disposed of in said will, according to the valuation made pursuant to the provisions thereof, and the number of grandchildren of the testator then living, which proportion is one-third part of the whole of the testator’s estate not so disposed of. The defendants contend that the said Isabella is also entitled to the immediate possession of the plate mentioned in the first clause of the will above recited, which belonged to the testator. It is also alleged in the answer that the interest to be charged on the money advanced to the said Isabella, for the purposes stated in the bill, ought not to exceed the rate of five per cent. It was also admitted by the answer that they did refuse and reject the application of the complainants, as set forth in the bill.
    The cause was submitted to the Court, on arguments in writing, by Messrs. Oadwalader and J. M. Reed for the plaintiffs, and H. JD. Gfilpin for the defendants; and was heard by Judges King, Campbell, and PaRSons.
   The following opinion of the Court was delivered by

PARSONS, Judge. —

The main and important question for our decision is, When is the distribution among the grandchildren to take place, and among whom is the property to be divided ? In our opinion,, independent of authority on the construction of bequests like those contained in the 'will now before us, the testator in clear and intelligible language has designated the period when it is to be done. This bequest is in the following words: “ Also, it is ray wish and desire, that all my grandchildren should have the whole of my estate not otherwise disposed of by this will, equally between them; that, on my eldest grandchild arriving at the age of twenty-one, my trustees and executors do make a reasonable valuation of my estate, and give to such grandchild his or her proportion, according to such valuation and the number of grandchildren then living.” By this clause the time of division is clearly fixed. It is to be, when the eldest grandchild arrives at the age of 21 years. Among whom of his grandchildren is division to be made ? Those then living, is the clear language of the will. But it is argued that the testator declares that his desire is, that all his grandchildren should have the whole of his estate. Such undoubtedly are the words of the testator in the first part of this clause in the will, yet all his grandchildren, mean all then living at the time the eldest arrives at the age of twenty-one. The words at the close of the sentence “ the number of grandchildren then living,” gives a clear definition of the first expression in the bequest, and those only, who are living at the time the eldest arrives at the age of twenty-one, are meant as all his grandchildren who were to partake of his bounty. It is further directed, when the second grandchild shall arrive at the age of twenty-one,” the trustees are to give to such grandchild his or her proportion, according to the same valuation, or a new one, and “ so on in succession until a final division shall be made to the last grandchild.” What last grandchild is here meant ? The last grandchild living, at the time the eldest arrives at the age of twenty-one years. No other construction, in my opinion, can be given to this clause in the will, without a disregard to the plain language used, and the manifest intention of the testator.

At the time of the making of this will, Mr. Hamilton had but one grandchild, and that was Isabella Corbin, and she was but about one year and three months old. His son was then, and is still, unmarried. He well knew, w'hen making his will, and at the time of his death, that near twenty years must roll by before there could be any division of his property under this clause in the will. Can we for one moment suppose that he intended that it should be held by the trustees for twenty years more, or until the death of his son and daughter ? In my opinion, nothing can be more clear than that such was not his intention, and that he has given plain and positive instructions to his trustees when the division was to take place, and who were the grandchildren he desired should have his property. The valuation is to be made when the eldest arrives at twenty-one, and those of his grandchildren then living, are the legatees designated as those entitled to receive it. If we take simply the will for our guide, without reference to authority, it appears to me no one can doubt that this is the correct construction of it.

But if we look to the authorities, both in England and in this country, no principle can be better settled than the one which must be our guide in giving a construction to this legacy.

The general rule laid down by Roper, in his Treatise on Legacies, 1 vol. 71, is this: “ that when legacies are given to a descript class of individuals, payable at a future period; as to the children of B., when the youngest shall attain twenty-one, or to be divided among them on the death of C., any child who can entitle himself under the description at the time of distributing the fund, may claim a part of it, viz. as well those children living at the period of distribution, though not born till after the testator’s death, as those born before, and living at, the happening of that event.” And there is no doubt that, in bequests to children or other persons who are designated as a class, the Court always endeavours to construe the period of distribution as late as it can, in order to include the greatest number of persons within the testator’s bounty. And the class of eases under these rules may be embraced under three heads: First, where there is simply a general devise to children or other persons, as a class, in which case it comprehends all persons answering that description at the time of the testator’s death. Such was the case of Hill v. Chapman, 3 Bro. C. R. 391. Second, where there is a previous life estate, in which all the parsons answering the description at the extinction of that life are included: Baldwin v. Carver, Cow. 209. The third class are those cases in which, as in the present, the bequest is to children or grandchildren (generally), payable at a certain period (usually twenty-one years, or marriage), in which case all children are let in who came into esse before the first child attains the period appointed. Under this last head the cases are numerous, and I think conclusively settle the question which arises upon the construction we are disposed to put upon the bequest in the present cause.

The first and leading case on this point is Ellison v. Airey, 1 Vesey, Sr. 111, in which Lord Hardwicke has laid down an intelligible rule, which seems to have controlled the English Court of Chancery in all subsequent decisions. The case was this : A woman devised to the son and two daughters of her nephew, Francis Ellison, ¿£10 apiece; then devises ¿£800 to Elizabeth Paxton, to be paid at her age of twenty-one, or marriage; but, if she died before twenty-one or marriage, then to the younger children of her nephew Francis Ellison, equally to be divided to and among them. Some of the younger children were born before the making of the will, and some after the death of the testatrix. The Chancellor in delivering his opinion said, “ The Court generally takes it, that there ought to be a legatee in being : and therefore will not construe a will to extend to persons not in being, unless the testator shows his intention to be such, by words in the will; which is the rule at common law as to contingent devises and remainders, and this to avoid suspending ; which always tends to make property uncertain, and to the inconvenience of making more divisions than the testator meant.” After discussing the question, the Chancellor says, “When is this legacy given ? At the death of Elizabeth before twenty-one or marriage. What is to be done with it ? To be divided equally. When ? That is not specified ; but the natural way of thinking is that she intended it should be divided when it vests. This construction answers the words of the will and the intention, avoids all inconveniences, and fixes a proper period.”

With equal propriety may we put the inquiry as to the will of Mr. Hamilton: When is this legacy given ? When the eldest grandchild arrives at the age of twenty one. What is to be done with jt? To be divided equally among his grandchildren. When? When the eldest arrives at the age of twenty-one, because it is so specified. And the natural way of thinking is that the testator thus intended that it should be divided when it vested with the right of immediate possession. The same principle is recognised in Gilmore v. Severn, 1 Bro. C. R. 582; in the case of Congreve v. Congreve, same book, 530, this doctrine is also assented to, and numerous cases are cited in the notes. In the case of Andrews v. Partington, 3 Brown C. R. 402, the Lord Chancellor said, where a time was pointed out, as where a legacy is given to all the children of A. when they shall attain twenty-one, it was too late to say that the time so pointed out shall not regulate among what children the distribution shall be made. It must he among the children in esse at the time the eldest attains such age. So in the case of Hughes v. Hughes, the same book, pages 853,434, it is ruled, where the period of division is marked out by the testator, only children in esse at that period can take. In the case of Pulsford v. Hunter, the same book, 416, it was ruled, where a legacy of a sum to be divided among children was given, all those born before the time of division take. The case of Hill v. Chapman, 1 Vesey, 407, is to the same effect; and Lord Thurlow remarks that the case of Ellison v. Airey cannot now bo shaken. So in the case of Hoste v. Pratt, 8 Vesey, 730, it was held in a case of trust by will for all the children of A. when and as they shall severally attain sixteen, with a direction for maintenance; those born after the eldest attained sixteen, were excluded. See also Middleton v. Messinger, 5 Ves. 136.

In the case of Godfrey v. Davis, 6 Ves. Jr. p. 43, where an annuity was bequeathed after annuitant’s death to the eldest child of A., no child living at the death of A., but one born after, the Master of the Rolls said, that it was clearly established, that where the testator gives any legacy or benefit to any person, not as a persona designata, but under a qualification and description at any particular time, the person answering that description at that time, is the person to claim; and if there are any persons answering that description, they are not to wait to see whether any other persons shall come in esse, but it is to be divided among those capable of taking,' when by the terms of the will the testator intended the property to vest in possession.

Not unlike the present case, was that of Whitehead v. St. John, 10 Ves. 152, where there was a bequest to the children of A. born or to be born, and interest, for maintenance until such children should respectively attain twenty-one, or marriage, when and as they should attain the respective ages of twenty-one, to pay them in equal shares. There were four children — two had reached twenty-one, and one was married. They petitioned for the payment of their respective - fourth shares of the trust fund. Lord Eldon in pronouncing judgment said, “I cannot take this case out of the authorities; therefore, the shares vesting when the first child attains the age of twenty-one, and there being four children, the order must be made on that principle.”

Equally strong is the case of Gilbert v. Boorman, 11 Ves. 238, where a residue was bequeathed to the plaintiff by name, and all the other children hereafter to be born of a child of the testator, at their respective ages of twenty-one. The plaintiff having attained that age, filed the bill. The Master of the Rolls made the decree; observing that children born afterwards are excluded of necessity, when a partial distribution is to take place.

In the case of Curtis v. Curtis, 6 Madd. 17, where there was an annuity for the father for life, of part of the dividends, and remainder as to the whole dividends subject to the father’s annuity; gift to the children when they attained the age of twenty-one, is a gift to all living when the eldest attains twenty-one. The principle which we are now considering, is equally well supported in the case of Walker v. Shore, 15 Ves. 122, and Ayton v. Ayton, 1 Cox, 327.

The doctrine which we laid down at the commencement of our remarks in relation to authority, is equally well settled in this country. It was ruled by Chancellor Walworth, Jenkins v. Freyer, 4 Paige, 47, that, where a legacy is given to a class of individuals in general terms, “ as to the children of A.,” and no period is fixed for the distribution of the legacy, it is to he considered as due at the death of the testator; and none but children who were born or begotten previous to that time are entitled to share in the legacy.

But where, by the will of the testator, there is a postponement of the division of the legacy given to a class of individuals until a period subsequent to his death, every one who answers the description, so as to come within that class, at the time which is fixed by the testator for the division, will be entitled to a share, although not in esse at the death of the testator, unless there is something in the will to show that the testator intended such of the class as would answer the description when the will took effect by his death: Cole v. Crayon, 1 Hill, S. C. Chan. R. 323. These principles were fully discussed and adopted, in Myers v. Myers, 2 M’Cord, 256, and Sweeton v. Legare, 2 M’Cord, 445. It seems to us a waste of time to produce further authorities to support the correctness of our conclusion in relation to the construction of this will; therefore I shall cite no more.

But it has been suggested by the counsel for the plaintiffs, that the position assumed by the defendants in their answer is in con-’ flict with the ruling by this Court in the case of Corbin v. Wilson, reported in 2 Ashm. 178, when giving a construction to this will. Yet I apprehend a more careful examination of that decision will satisfy any one that the question now decided was not the one before the Court; nor ought a casual remark made by the President Judge, when delivering his opinion, to be understood as deciding this question. The main point in that case was, as to the character of this legacy, whether it was vested or contingent. To show this, I must be pardoned for making a few extracts from his opinion. After giving a brief outline of the state of the controversy, he says, “ thé great question of the cause is, whether the legacies to the plaintiffs are vested or contingent ?” Then, after speaking of the various kinds of legacies, vested and contingent, and by ■what rules their real nature is to be ascertained, he remarks: “When a legacy is given to a person to be paid, or payable at or -when he shall attain the age of twenty-one, or at a future definite period, the interest in the legacy shall he vested in the legatee immediately upon the testator’s death, as debitum in 'presentí solven-dum in futuro, the time being only annexed to the payment, and not the gift, of the legacy.” Then, after citing numerous authorities to sustain this position, and fully discussing the subject, he further remarks: “ But the result of the fullest consideration is an opinion, that the legacies given to his grandchildren in the will of James Hamilton are vested in present interest, though postponed as to enjoyment, and not, as has been insisted by the defendants, contingent and dependent on the legatees arriving at the age of twenty-one years.” And then concludes this branch of the case by declaring that it was the judgment of the Court that these legacies are vested in interest, though postponed as to enjoyment, and therefore, that an order for allowance and maintenance was legally admissible and proper. The remaining question for the Court’s determination at that time was whether they had jurisdiction of the subject, which was ruled affirmatively. Hence, the question who the legatees were, to receive their portion, and what number formed the class to take, did not arise on that occasion. This subject as to the period of distribution, and the persons that might be entitled to take under the description of grandchildren, was referred to in argument by counsel, to prove that the legacies were contingent and not vested. Mr. Reed is reported to have said, “ Who the grandchildren of Mr. Hamilton are, can never be determined until the death of both the progenitors from whom they are to issue.” Hence, it was argued that the legacies must be contingent, and it was used as an argument against granting the allowance. Mr. Ingersoll in his argument contends that could make no difference in deciding upon the character of the legacy; that it was equally vested, although the distribution might be postponed, and could not be divided when the eldest arrived at the age of twenty-one. It was when noticing these arguments, that the President Judge refers to this point, and clearly shows that no such reasons should prevent the Court from deciding upon the nature of the legacy according to the established rules for the construction of wills. I am fully authorized to say that he did. not design to express an opinion upon the question presented by the present bill and answer, but entirely concurs with us in the conclusion already expressed; that the distribution should be made among the grandchildren living at the time the eldest arrives at the age of twenty-one.

What was said on the hearing of that cause by counsel, was by way of argument to illustrate the question then under discussion; and the observations by the learned President were made entirely by way of comment on those arguments, merely to show that there was no reason arising from them, which could prevent the natural conclusion that seemed necessarily to arise in the mind relative to the main question determined. It was not the point then considered nor decided; nor have we a right to infer that a different opinion from that now given would have been expressed, had the authorities we have cited been presented to the Court. Not one of these numerous cases was referred to, either by the counsel or the Court, and therefore no opinion was given on them, or the proposition now decided.

Therefore it may with propriety be said, the question was not then determined as to when the distribution was to be made, nor who were the distributees entitled to take the legacy.

The next point necessary now to be determined is, whether Isabella is entitled to the plate left by her grandfather ? That she is, no one can doubt. But when is she to have the possession of it ? According to the ruling of this Court in the case of Woodruff et al. v. Wilson, 2 Ashm. 278, on the construction of the bequest under which the plate is given, it would seem she is not entitled to the possession of the plate until the death of Miss Janet Wilson. But we are told that Miss Wilson is willing that Isabella H. Corbin should have it now. On her expressing such consent in writing, the decree may be drawn awarding it to Isabella.

The remaining question is as to the interest which ought to be charged on the various advances made to Miss Corbin and her sister and brother. We are of the opinion that five per cent, would be a fair rate, under all the circumstances of the case in which the various questions arising on this estate have been presented to the Court and therefore decree that as the rate to be fixed.

It is believed the above opinion disposes of all the matters submitted under this bill, and that nothing is now ruled in conflict with our former opinions.