Isabella Abernathy, Appellant, vs. Meredith B. Abernathy, Appellee, 8 Fla. 243

BALTZELL, C. J., delivered the opinion of the Court. This is a suit in chancery, instituted by a wife through her next friend against her husband, seeking to have him removed from the office of trustee in the care and management of a negro man, in his possession in virtue of his marital rights.

In the State of Alabama, whei’e these parties resided at the time of their marriage, the law made him trustee and provided, “that if from imbecility, intemperance or other cause, a husband becomes incapable of or unfit for the discreet management and control of the separate estate of his wife, the wife, by her next friend, may file a bill in chancery alleging the unfitness or incapacity of the husband, and if the allegations of the bill are admitted or established by the proof, the chancellor must decree that the husband shall no longer have any control over the estate of his wife or the rents, issues or profits thereof, and the wife shall have the same control thereof as if she were a feme sole.” — Code of Ala., 381-'2.

There were four negroes, a man and wife and his children, and eighteen hundred dollars in money, received by defendant at the time of his marriage.

The allegations of the bill are, that the husband has “ disposed of and wasted the whole of said estate except Harry, one of her slaves, and that he is seeking to have him applied to the satisfaction of his debts, and thereby throw his wife and child entirely upon the charity of her friends; that he leads a wild and roving life, without any fixed occupation or abode, and that, in consequence of his neglect of his wife, his infidelity to her and his inability to provide for her maintainance, she has been compelled to seek a home amongst her relatives in Alabama.” The allegation of waste is denied, whilst it is admitted that the boy Harry is all that remains of the property.

It. is unnecessary to recite the answer at length. Suffice it to state, that it explains the sale of the other negroes and the expenditure of the money as having been occasioned by the purchase of lands in Louisiana, afterwards sold at a 'loss, in removing to Texas, first subsequently to Louisiana and thence to Florida, at the earnest solicitation of his wife, in the effort to make a crop, in the purchase of furniture, payment of board and a large amount of physician’s bills. There is no proof of any act of waste.

The main reliance in support of the allegation is placed on the fact that the wife’s property has not been increased, but diminished. It may be admitted, that a man of average capacity, commencing with this capital, might, by prudence, .industry and economy, have supported himself and family and gradually increased his original stock. There are few, however, succeed to this extent, especially a young couple, in the that season of extravagance, of high hopes and delusive expectations ; nor would it be perfectly fair to apply to such the rigorous rules appropriate to a more advanced age.

Indeed, a judgment so rigorous might seriously affect the contract of marriage itself; for, if adjudged incompetent to the management of property acquired through that relation, what is to become of its more delicate duties, its graver, more enlarged and higher responsibilities? Nor is success an unerring test of capacity and worth, any more than failure in the management, or loss or depreciation of property, an infallible indication of unworthiness or incapacity.

The most worthy, prudent, careful and economical, industrious and persevering do not always succeed, so that we by no means regard the fact of diminution of property as evidence of unfitness or incapacity, or sufficient cause, on this account, to authorize the removal of such a trustee. The allegation of defendant’s seeking to have Harry applied to the satisfaction of defendant’s debts is unsupported by proof.

Nor is there proof of the “defendant having lead a wild and roving life, without a fixed occupation or abode,” unless it be deduced from the fact of his removal, already alluded to, to three or four different States. Considering the known habits of our people in connection with the fact that these parties were but recently married, this could hardly be regarded as evidence of recklessness or imprudence, but rather of a spirit of enter-prize and rightful adventure.

The remaining allegation is, that, “ in consequence of his infidelity to her and inability to provide for her maintainance, she has been compelled to seek a home amongst her relatives in Alabama.” There is no sufficient evidence of this inability, as it is proved that she was boarded at the best hotels in Marianna, and it does not appear that at any time she was denied or deprived, much less felt the want of the necessaries or comforts of life, whilst her husband, in a commendable spirit of economy, denied himself many of these by preparing his meals at the place where he conducted his business.

The charge of infidelity has a better support — indeed the main stress of complainant’s case is laid upon it — to prove which some twelve or fifteen witnesses have been examined. We have read their depositions with extreme repugnance, and, we must add, disgust, and will not refer to their details. They certainly show a looseness of conversation and wantonness on the part of defendant in ill accordance with the chasteness of one holding the relation of a married man.

The impression they produced is that defendant indulged in unworthy vaporing and indecent boasting on a delicate subject, or was careless in his assertions, or not in a condition to perceive their full purport; for surely [no one of ordinary refinement and sensibility could seriously give utterance to such vulgarity. Tet there is no direct proof of criminality, and it can only be inferred from his presence at improper places and the report of his wild and reckless expressions.

Tet, with all this, we are not satisfied that this criminality was the real cause of the separation of the wife, or that it££ compelled her to seek a home amongst her relatives.” It is scarcely to be presumed that the numerous witnesses examined as to this charge could have been in communication with this lady on this subject before the arrival of her uncle and brother, or that they, in the course of the single day of their stay in Marianna, could have been informed of all that these depositions detail, so that this part of the case would seem to have been subsequently procured to justify or excuse her departure rather than give the true cause of it.

There is in the record no satisfactory explanation of this act of abandonment and separation, which seems to us to be have been imprudent, precipitate, ill-advised and improper. There is no evidence of conjugal disagreement or altercation, nor the slightest expression of dissatisfaction on her part, nor proof of cruel treatment on his part, nor of such as could fairly be pronounced even ungenerous or unkind. On the contrary, in reply to an injunction of her uncle forbidding an interview before her departure, she makes declarations (adverted to hereafter) decidedly negativing such imputation.

It is not under such circumstances that a court of chancery will interfere against a husband in behalf of a wife.

We have no decision- of the courts of Alabama to aid in the determination of this question, yet with the assistance of the English decisions and the rules and principles prevailing in courts of equity, we hope satisfactorily to dispose of the case. “ Courts of chancery, in case of the desertion of the wife by the husband, have ordered the income of her property to be paid to the wife till the husband returns to his duty.” Macqueen Hus. and Wife, 99; 2 Atk, 96; 11 Vesey, 12; 2 Vesey, Sr., 561. “ So when a husband, by his cruelty to his wife, forces her to leave him, it will be the same as if he had deserted her. — 2 Vern., 93; 2 Vesey, Jr., 198. 'So the court took cognizance in Williams vs.

Collen, not only of the husband’s cruelty, but likewise of his dissipation, domestic irregularities and improvident expenditure.” “ It was a case,” says the report, “ where the husband proved drunk,en, rude and abusive to his wife, and, moreover, wasted his substance .in riotous living.” — Macqueen, 104-’5; 2 Vernon, 152. “ These orders for a maintainance are always made with a view to the probable or possible reconciliation of the parties.” — Macqueen, 106.

These cases afford the best analogies to the case before us, and show a higher object and purpose in the courts than the mere preservation of property — the amendment of the husband, the restoration of proper relations between husband and wife. Hence more leniency should probably be extended to a husband trustee than would prevail :in the ordinaiy case of such relation. It is proper to state -that there is an effort to establish other facts — intemperance, unfitness, &c. — but, for very obvious reasons,- we cannot regard them in our consideration of the case.

They were not put in issue, so that defendant was not called upon to defend himself or disprove them. "We have seen that incontinence or infidelity is the only misconduct established, and the question is, how far this should operate as ground of removal.

By the law of Alabama, there must be “ imbecility, intemperance or other cause, so that the party becomes incapable of or unfit for the discreet management and control of the property.” Now that such action may disturb the conjugal ties and be just ground of complaint for the wife is very clear, yet it is not seen how this is necessarily to affect the manage.ment of the property. Certainly no such cause is assigned in the books or treatises.

There “the act or omission must’' be such as to endanger the trust property or to show a want of honesty, a want of proper capacity to execute the duties, or a want of reasonable fidelity.” — 2 Story Eq., 528. Here there is no unfitness,, no incapacity, no want of fidelity nor of honesty, so that,,assuming these to exist,the act of impropriety alluded to could scarcely be regarded as sufficient to require the removal. There are other objections to this proceeding worthy of notice.

Eor the conduct of suits of this character courts of equity have required the intervention of a third party as the next friend of the wife, usually some near relative. In this case, the uncle of the wife has assumed the office, and, we regret to state, with very inadequate appreciation of its character and responsibility.

His first appearance-in the record is in soliciting a private and exclusive inter-view with the wife without the assent or knowledge of her ■husband, and he then, after exciting her apprehension,, prevails upon her to leave her husband and go with him to Alabama, taking with her her child, and forcibly preventing a parting interview with her husband, having. armed himself with a gun as a means of menace or defence, or probably intended for use in case of an attempted rescue.

Influences so improper and malign — acts and conduct of such injustice and wrong, so palpably violative of all law, both human and divine — an invasion so manifest of the nearest, dearest, most delicate and interesting ties, of the two most important and sacred of all human relations, husband and wife, parent and child, may, in an extreme case of cruelty and oppression, be justifiable, but in the case presented'by the record, admit of no excuse.

Even with the utmost rigor of judgment upon the conduct and conversation of the husband, which, so far from being disposed to extenuate we have already characterized in terms of reproof, we perceive nothing to prevent amendment and reformation, but, on the contrary, much to encourage the hope of a returning sense of self-respect on the part of the husband and a due appreciation of domestic ties and obligations, such as serious reflection, with the advance of mature age, may gradually effect. He has engaged in the study of medicine and has gained the testimony of his preceptor to his steadiness and moral" worth.

The language of his wife, in the moment of separation, too, speaks volumes in his favor. “She started to see him, when her uncle took her by the arm and forced Tier into the room* It was then she said, shedding tears freely, ‘ he never gave me a cross word in his lifetime” A witness, being the proprietor of the hotel where she boarded, says : “ He was a very kind husband to her, and too kind, I thought, for his purse.

He appeared to be very much mortified at the loss of his wife, and cried like a child.” The keeper of another hotel where she stayed says, that, “as far as he heard, defendant was kind.” Other witnesses depose to the same conduct, and there is but one, of the large number examined, who says that “Ms conduct to Ms wife- was in some respects bad.” Where then is there any just ground for saying that such a man deserves the punishment of the vilest criminal, nay, a worse fate, for to him even is not denied the solace of a faithful and affectionate heart.

Brora a prospect and position so hopeful and encouraging — a duty so solemn, engaging and imperious, exacted by obligations of the highest character and having their foundation in the very innermost recesses of our nature, the wife is enticed to a position of dependence, poor and miserable at the best; her peace, quiet of conscience, true happiness bartered for luxury, nay more, her allegiance .to her husband thrown off and open disobedience avowed — seduced to yield herself to the counsels and directions of her husband’s enemies — -her society, her kindly aid and assistance in his struggles to advance their common-fortunes withheld from and denied to him and given to them.

Instead of trying to relieve her husband from his faults and follies by her kindness, gentleness and those graces of the female character which Providence has given the gentler sex — -not for ornament, but as a means of good — she is prompted to and withdraws from him this main support, this principal reliance in his difficulties, so that, if he escapes ruin, it will be in spite of and independent of her aid and assistance. Nor is this all. There are other consequences involved in this rash act.

There is a child, to whom the father, as well as the mother, owes obligation and has corresponding claims — the duties of nurture, maintenance, counsel and protection and the claims of paternal upon filial affection. By this separation, one parent, the head of the family, is at once debarred and cut off, and who will say that an adequate substitute is provided ? Who shall fulfil, in either case, tbe appropriate duties of these most sacred relations?

For those to whom either wife or child might look for that which these relations impart and bestow, as well as enjoin, may owe to others in the same relation to them what cannot be divided, apportioned or withheld? Could they give it if these did not exist? The very hope is not only illusive but absurd, if not preposterous. The attempt to supplant nature, to supply her offices or to amend ber provisions for accomplishing desirable results in the events and mysterious issues of life, is sacriligions as well as unwise.

If the uncle and brother would act the part of real friends, as they profess to he, and the lady that of a true wife, let this unfortunate breach be healed, let the sacred bands entered into between her and her husband be preserved, and let his endeavor to reform, already manifested, by bis engagement in an honorable profession, he encouraged and his affection for his wife reciprocated, and thus there may yet he a brighter future for husband, wife and child. It is apparent from the views presented that the uncle of this lady is not, in our estimation, her friend, nor entitled to prosecute this suit in her behalf.

A party coming into a court of equity, must come with clean hands. Its portals are not open to one who, by bis acts at the very threshhold, is a trespasser*, with ruthless hand invading the domestic sanctuary. No one who undertakes to excite domestic troubles and destroy domestic peace can hope to assume a position in the Temple of Justice. His conduct in the management of the suit itself is not less objectionable.

Questions are propounded by him on bebalf of the wife which any woman, possessing the instinctive delicacy of her sex, would blush to hear uttered in her presence — > the very recital of which would cover her face with shame and confusion. Nor can we for a moment suppose, from our estimate of her disposition and character, that this lady could have given them her approval.

There is nothing in the record to induce us to believe that she could have desired to instigate such exposure or to spread her husband’s disgrace upon the public records,, either to gratify resentment, if she had any, or to indulge the prurient curiosity of the vulgar by the perpetuation of a petty scandal. No, we rather believe, for the honor of the sex and her own self-respect, that she would have prevented such a course of enquiry. Can it be believed that the paltry sum at issue, the hire of one negro or his control, could have been on her part the inducement to so perilous an assault?

No, we can form no such conclusion; but, on the contrary, are under the impreseion that the disruption of domestic ties has been on the part of the uncle, the true cause of this suit. The property is protected from sale by the injunction granted. Beyond this, for the reasons stated, we decline further interference.

In reference to the conduct of suits of this natqre, we deem it proper to add, in conclusion, that although courts may not refuse to consider details, however offensive and disgusting, when such become necessary in the course of investigation, yet they may and should always require the examination of witnesses to be conducted in .a spirit of due delicacy, avoiding vulgar and obscene language. The decree of the court below is affirmed with costs.