Wilmore v. Wilmore , 54 Ky. 49 ( 1854 )

Chief Justice Marshall

delivered the opinion of the Court.

A decree, (of which this court has no jurisdiction,) having been rendered in favor of James Wilmore, divorcing him from his wife, Susan Wilmore, on account of her having abandoned him for one year, and the court being of opinion that she was entitled to some provision for her future support, for which, as well as for a divorce and general relief, she had prayed in her original answer, and more particularly in an amended answer- and cross-bill filed just as the decree was about to be rendered — a commissioner was directed to ascertain and report the value of the estate received by Wilmore from his wife’s father, with heirs, &c., and the charges upon it, and also the value and description of his estate, and its probable yearly income or value. He reported the total value of Wilmore’s estate at $20,390, and its probable annual value at $1350. It further appears that a considerable portion of this estate arose from slaves devised by the father of Mrs. Wilmore to herself and her husband after marriage, and doubtless in consideration of it. And the court decreed to her the exclusive possession of a tract of mountain land, not in cultivation, and of little use or value, which had been so devised; also two slaves to be worth $1,000, out of a number which had been devised in the same way; and also, that she have possession of a small tract of land of which she was possessed at the date of the marriage, reported to be worth $96 a year. The available proceeds of this decree would, at six per cent, per annum, yield about $160 a year.

Mrs. Wilmore, by writ of error, complains of this decree, and seeks its reversal, on the ground that it does not restore to her all the property received by her former husband, through the marriage, and that if she has not a right to this, the provision, as a part merely of his estate, is too small. In support of the first ground it is contended, as the statute respecting legislative divorces requires a restoration to the wife of the property received by the husband with or through her, and as the Revised Statutes adopt the same principle in reference to both parties, and that as this is the principle of equity upon the rescission of contracts, it should be adopted in this case of divorce. The first statute referred to, however, by its terms applies to a different class of divorces, and is not urged as directly applicable to this case. But both of the statutes are referred to as showing that the principle contended for is entirely consistent with the policy of the state, if not required by it; and it is contended that, although the action was commenced before the Revised Statute on the subject took effect, yet, as the decree was rendered afterwards, the question of property being presented by a new and subsequent proceeding, arising upon or out of that decree, is governed by the Revised Statutes, which prescribes the consequences of a decree of divorce. This argument is illustrated by the question whether Wilmore’s right to marry after and in consequence of this decree of divorce, is regulated by the antecedent law which gave the right immediately, or by the Revised Statute, in force at the time, and which prohibited a marriage within a year. It does not follow however therefore because the Legislature have a right to change the law which regulates the future conduct of individuals, and their future action so far as their liability to the public is concerned, they also have the right to change the law determining the existing rights of property; nor will it be presumed that they intend to do so unless such intention manifestly appears from the language of their enactments. And as, by the law existing at the time of filing the petition, the husband had a right, if upon the facts then existing, and therein stated, he should obtain a divorce, to hold his property, subject only to an equitable provision for his wife, this right accrued or accruing, if it might otherwise be affected by the Revised Statutes, which however indicates no intention that it shall operate retrospectively, is expressly saved by the third section of the act adopting the Revised Statutes. Besides, the decree being founded upon facts alleged in the petition and existing at its date, seems properly to relate back to the commencement of the suit, at least so far as the rights of property are involved, and it seems even more certainly just that it should relate back at any rate to the commencement of the demand of property in that suit, and of the litigation about it.

1. The distribution of property between husband and wife after divorce, is to be regulated by the laws in force at the time the facts occur which are the grounds for the divorce. The Revised Statutes have not a retrospective operation on that subject.

And although it is said that the question of property was raised after the decree of divorce was rendered, this, if true to any extent, is only true with respect to the specific claim set up by Mrs. Wilmore to be restored to the estate derived from her father. Her original answer and cross-bill filed in November, 1851, before the Revised Statutes took effect, claims a provision out of her husband’s estate, and for general relief, which would have authorized, and indeed required, .the court to make such provision for her according to law and equity. Her subsequent amended answer and cross-bill only suggested the particular provision to which she claimed to be entitled, and alleged the facts relied on in support and explanation of it.

2. The rule of eqüitv which requires that upon a rescission of a contract the parties be placedin statu quo, does not apply to cases of divorce a mnculo matrimo-

With respect to the argument which p aces a divorce a vinculo matrimoni upon the ground of the rescission of an ordinary contract, upon which equity requires that the parties shall be restored to their original condition, as if the contract had never been made, we think the cases are too widely different to establish, on the mere ground of analogy, the application to the case of a divorce, of the principle of restoration to the status in quo as the general, and much less as the universal rule. Where, as in this country, the divorce a vinculo is most commonly granted for matters occurring alter the marriage, the husband, who, by the law as it existed until recently, was invested with the absolute title to all movable property of the wife reduced to possession, and is still so invested except as to slaves, could not with justice be held accountable upon the termination of the coverture by divorce any more than on its termination by the death of the wife, for all of such property that he may have disposed of during its existence. And there is no more reason for holding him thus accountable in case of its termination by divorce than in case of its termination by death. If he held the property in trust for his wife, and as hers, without any interest in himself, there might be some propriety in holding him accountable for the whole of it to her in case of divorce, or to her representatives in case of her death. But as he holds it absolutely for his own use, and subject to his own disposition during the coverture, with the obligation upon him to support his wife and family according to his estate and condition, there seems to be no basis in equity for such a responsibility for all property acquired by or through the marriage. Our laws have not considered it proper that he should be entirely relieved from this by a divorce, even for the fault of the wife, unless she had forfeited her claim upon him by open adultery. But they do not, as a rule, hold him responsible to the extent which has been noticed. Even the Revised Statutes, (page 391,) section 6, require the restoration of such property only as is not disposed of before the commencement of the suit for the divorce. But, as already decided, that statute does not govern this case, which must be determined by the provisions of the act of 1809, which first gave the jurisdiction to decree divorces, and which, as to this matter, was in force until repealed by the Revised Statutes, which however excepted existing suits andrights.

3. Under the provisions of the 7th section of the act of 1809, the chancellor, on decreeing a divorce, was required to dispose of the property as to him should seem right, having due regard to the rights of each party, and the children, if any, without divesting either party of title to real estate.

The 7th section of the act of 1809, (1 Stat. Law, page 123,) provides that the court pronouncing the decree of divorce shall regulate and order the division of the estate, real and personal, (referring of course mainly to the estate of the husband,) in such way as to them shall seem right, having due regard to each party, and the children, if any, with a proviso against divesting either party of title to real estate; but it makes no reference to a restoration of property. This enactment means that the division shall be such as, under all the circumstances, shall be equitable. And in the fact, that in administering this law for more than forty years, the courts of this state have not placed it upon th© footing of the rescission of a contract for property, nor established as applicable to the division of property directed, the rule placing the parties in statu quo with respect to it, we not only find a confirmation of the views already advanced with regard to the application of such a rule to cases of divorce, but also the authority of practice and precedent against such application, except where it may accord with a division which, under all the circumstances, seems right and just. But although we thus reject the estimate of the property received by the husband, and its results in increasing his estate as a measure of the sum which should be decreed to the wife upon a divorce, (for which reason we think it is unnecessary to refer particularly to the calculation intended to demonstrate these results,) we are nevertheless of opinion, that in determining the provision to be made for the wife, we should consider not only the actual estate of the husband, but also the fact, manifest in this case, that he has received by the will of his wife’s father, and in consideration of the marriage, a large property in slaves, which, though subject to heavy charges to be paid from time to time by him, have yet, by the value of their hire and services, and by their natural increase, enabled him, by the sale of a few of them, to pay off these charges, and to retain a large number free from incumbrance, the value of which, even excluding fourteen which he distributed among his children and grand-children during the year immediately preceding the commencement of this suit, and when it was perhaps in contemplation, constitutes a very considerable portion of his present estate.

4. In making provision for a wife wliere the husband had obtained a divorce, the chancellor will look to the grounds of the divorce, and be governed to some extent by the character of the grounds of the divorce.

When in addition to these facts which, in the absence of any flagrant delinquency, should form the principal basis of decision, we take into consideration the great respectability of the parties; their advanced age; the number of children on each side, (though there are none by this marriage;) the associations of the wife, her infirmities, consequent upon her age and laborious industry, and her general good character and conduct, irreproachable, unless on account of her leaving her husband in this instance, which, though upon the proof, it was not deemed justifiable by the Chancellor who decreed the divorce, was doubtless so deemed by herself; we are of opinion, that in the division of the estate, as prescribed by the act of 1809, she is entitled to such portion as will probably secure to her a genteel support during the remnant of her life, and enable her to give to her own children some portion of what has arisen from the gift of her father, and of which, but for the marriage of their mother, they might perhaps have enjoyed a much greater part.

In this view of the equity of the case, we are of opinion that the provision made for Mrs. Wilmore by the decree is not nearly as much as she should have. And although there may be no precise criterion for determining the amount, we think that $3,000, instead of $1,000 should be fixed, as the value of the slaves which in the division should be allotted to her as her absolute property, to be selected by her, subject to valuation; and if she does not so select, that this allotment should consist, (except so far as she may otherwise select,) of able bodied slaves, capable of present valuable service, and likely so to continue for a reasonable time, and should include a fair proportion of females probably capable of future increase ; all to be fairly valued. In other respects, the decree was proper.

If the conduct of the wife had been blameless, a provision equal to what the law would have given her on the death of her husband, would not have been deemed unreasonable in case of a divorce obtained by her, as was decided in Thornberry vs. Thornberry, 4 Littell, 252. The provision now directed is greatly less. But the statute in all cases requires, or at least authorizes, a division of the estate in such way as to the court may seem right, and the conduct of the parties forms but one element in determining what is right. In the present case the Circuit Court allowed to Mrs. Wilmore $250 in money, for one year’s maintenance, pending the suit, which is probably not less or but little lsss than the annual value of the provision which we have prescribed.

Wherefore, the decree is reversed, and the cause remanded for a decree in comformity with this opinion.