Burlington v. Swanville

WAt.ton, J. In our judgment there was no ruling or instruction of the presiding judge of which the defendant can justly complain. The first requested instruction, namely, that “if the pauper once established his residence in Lincoln, and has never since abandoned bis wife or family, and no pauper supplies have been furnished, their continued residence in that town for more than five years consecutively gave him a settlement in that town” — was rightfully withheld, because it fails to discriminate between the abandonment of one’s wife or family and a change of residence from one town to another. One may change his residence without abandoning his wife or family j or he may abandon his wife and family without taking up his residence in another town. Strike out the words “wife or family” and insert “residence,” and strike out “their” and insert “his” and the proposition would be correct. As it is, it is clearly erroneous. Parsons v. Bangor, 61 Maine, 457. [85] The second requested instruction, namely, that “no abandonment by the wife of the husband, or refusal to cohabit with him, will affect the settlement of the husband unless he abandoned her,” was given. But the defendants complain of the remarks of the judge which followed. They contend that they destroyed or neutralized the instruction and were therefore improper. We think not. It may be doubted whether the requested instruction is itself strictly accurate, whether the judge would not have been justified in withholding it altogether. It will be noticed that if it does not directly assert it very clearly implies, that abandonment by the wife will affect the settlement of the husband if he also abandons her. Strictly speaking no abandonment of either will, per se, affect the husband's settlement. Abandonment of a home or residence may affect the settlement, but the abandonment of a husband or wife will have no such effect. As remarked by tbe presiding judge, the real point of inquiry is whether an actual separation has taken placo so as to give the husband and -wife separate bornes, so that while the wife actually resides in one town, the husband may liave a home in another town. As worded, the requested instruction was well calculated to confuse if not to mislead the jury, and the remarks of the presiding judge were intended to guard against such a result. We think they were pertinent and proper. But the chief ground of complaint is the instruction that a wife may abandon her husband and establish for herself a home separate from his. The question is not whether she can gain a pauper settlement separate from his. Of course she cannot. But whether she can establish for herself a separate home, so that in law as well as in fact her home will not be his home. The defendants insist that while it is true that the husband may abandon his wife and establish for himself a separate home, she cannot abandon him and establish for herself a separate home. We think she can. This precise argument was urged in a case recently decided in the supreme court at Washington and overruled. It was there claimed that the domicile of the husband is the domi [86] cile of the wife, “that she could not have a different one from his.” But the court held that she could, that this “was so well settled that it would be idle to discuss the proposition, that the rule is that she may acquire a separate domicile whenever it is necessary or proper that she should do so ; that the right springs from the necessity for its exercise, and endures as long as the necessity continues.” Cheever v. Wilson, 9 Wallace, 108. And in an early case in this state where the same argument was urged, the court held that although the residence of the wife is evidence of the domicile of the husband, yet it is not conclusive that “if he has abandoned her, or she has abandoned him, he may establish his domicile elsewhere.” Greene v. Windham, 13 Maine, 225. Of course husbands and wives are expected to live together. The marriage relation contemplates that they will do so, and that they will have but one home. But if for any cause the home of the husband becomes an unfit place for the wife to live in, or he becomes an unfit person for her to live with, the law gives her a right to leave, and to establish for herself a home elsewhere. We cannot doubt that the ruling of the presiding judge upon this point was correct. We think the verdict is not contrary to the weight of evidence. Motion and exceptions overruled. Appleton, C. J., Daneorth, Virgin and Peters, JJ.,concurred.