Whitsell v. Whitsell

Judge Simpson delivered the opinion of the Court. Huldaii Whitsem, having instituted a suit in chancery against her husband, for alimony, gave him notice of the time of an intended application by hpr to the Court, for an order on him to pay her a sum sufficient for her support and maintnance for one year. On the trial of the motion, after proof of the destitute condition of the complainant, and that her husband had made no suitable provision for her, and of the amount and value of his estate, the defendant offered to read the depositions of various individuals, in relation to her right to alimony. The evidence was rejected by the Court, and an order made for an allowance to the complainant, of one hundred dollars, for one year. To that order this writ of error, with supersedeas, is prosecuted ; and the only question is, did the Court err in rejecting the evidence offered by the defendant. The act of 1831, on this subject, (1 Stat. Law, 126,) makes it the duty of the Court, without any regard to the merits of the controversy, to provide a support for the wife during its pendency. This duty is imperative on the Court, and for its discharge, admits an inquiry alone in relation to the amount of the' husband’s estate, and whether or not the wife is suitably provided for by him. The-Court therefore did not err in rejecting the evidence offered by the defendant. On the trial .of a motion of this kind, the defendant may show that he has made a suitable provision for his wife. There is but one other ground upon which, under the statute, he can rely, to defeat the motion: that is, that the wife is living in adultery. No evidence was offered to establish this defence. The rejected evidence was intended to show that the separation between her and her hus [51] band, was the result of her ungovernable temper.- This evidence was clearly inadmissible.- Arnold for plaintiff. ■N Wherefore, the order is affirmed.