WRAY vs. WRAY

WRAY vs. WRAY. [BILL IN EQUITY BY WIFE BOB PERMANENT ALIMONY.] 1. Presumed continuance of insanity once established.—Insanity being once established, its continuance is presumed until the contrary is proved. 2. Insanity excuses adultery.—Adultery, committed by the wife while insane, is-no bar to her claim for alimony. 3. When wife is entitled to decree for alimony.—The failure of the husband to provide for his wife, while separated from him without fault on her part, and confined in a lunatic asylum, a sufficient maintenance and support, suitable to her condition and circumstances, entitles her to a decree for alimony. Appeal from the Chancery Court of Macon. Heard before the Hon. James B. Clark. This bill was filed by Mrs. Susan M. Wray, suing by her next friend, against her husband, Albert G. Wray,, and sought a decree for alimony. The parties to the suit are the same as to the ease reported in 19 Ala. 522, which was an application by Mr. Wray for a divorce, on the ground of adultery committed by his wife. That application was refused, although the fact of adultery was proved, because it appeared that the wife was insane at the time of its commission ; the court holding, that adultery on the part of the wife, committed while insane, was1 no ground of divorce. This bill was filed after the final disposition of the former case. It alleged, that the parties were married in 1835, and lived together as husband and wife until some time in 1848, when a separation took place between them, and complainant was sent by her husband back to her mother’s house in Georgia; that the defendant was possessed of a large estate, and received ■several slaves by his said marriage with complainant; that the complainant, in October, 1850, offered to return to her husband’s house, and to resume her conjugal duties, but he refused to receive her; and that he also refused to make any provision for her maintenance and support. The defendant answered the bill;-alleging, that his separation from his wife was caused by his discovery that she had been faithless to him; that he gave her, at the time of the separation, two negroes, and about three hundred dollars in money ; that he had since paid out over one thousand dollars for her support and maintenance; that the complainant, after the filing of the bill, had given birth to an illegitimate child; and that the defendant, since that time, had made arrangements for her board and other expenses, as a first-class patient, at a lunatic asylum in South Carolina, where she was confined. The material facts established by the evidence are these: Mrs. Wray was carried to the lunatic asylum, by her friends, in April, 1849, and remained there until some time in December, 1850, when she was discharged. Eor several years prior to 1849, she had been insane; and evidence was adduced, which the chancellor deemed sufficient, to show that her insanity still continued. In October, 1851, accompanied by a physician, she returned to the neighborhood where her husband was, and ottered to resume conjugal relations with him; but he rejected her overtures. In April, 1852, she was carried back to the asylum, where she was delivered of a child in the mouth of July following; and she was still an inmate of the asylum -when the several witnesses in the cause were examined. The slaves received by the defendant, by virtue of his marriage, were shown to have increased to about twenty-five in number ; and his other property was variously estimated by the several witnesses at from $70,000 to $100,000. The master reported, on a reference, that the provision made by the defendant for the complainant’s •expenses at the asylum was about $450 per annum, and that it was insufficient; that about $1100 was a suitable provision for her comfortable support and enjoyment, as a first-class patient at the asylum, to which position she was entitled; and this report was confirmed by the channel] or, without exception by either party. On final hearing, the chancellor rendered a decree for the complainant; directing the defendant to pay over, at the times and in the manner specified, the amount reported by the master as a proper allowance for the complainant’s support, to be expended under the directions of the principal of the lunatic asylum; and orderiug the cause to be retained on the docket, for future orders and decrees, as circumstances might require. The chancellor’s decree is now assigned as error. Elmore & Yancey, for the appellant. Clopton & Lis on, contra. [MAJORITY — STONE, J.] STONE, J. In a contest between these parties, determined in this court at the June term, 1851, on an application by Mr. Wray for divorce, this court decided that Mrs. Susan M. Wray was insane at the time the acts were committed, for which the divorce was sought.—See Wray v. Wray, 19 Ala. 522. The report of that ease was in evidence in this case, as shown by the record. The proof of her mental condition since that time is probably sufficient to show that, at no time since her deflection from the path of propriety, has she been either legally or morally accountable. We need not, however,, decide this question. Insanity being once established, its continuance is presumed until the contrary is proved. Rawdon v. Rawdon, 28 Ala. 565. The contrary is not proved in this case. It is claimed for appellant, that as he has proposed to provide for Mrs. Wray a support, and has actually made some provision for her, he should not be decreed to do-what he has already done. If he had, up to the time of the trial, made for his insane wife sufficient provision, and this, independent of any coercive measures through the courts of the country, we would consider the legal question presented. The report of the register, however^ which was confirmed by the chancellor—confirmed, too, without any exceptions to the register’s report—proves conclusively that the support offered and supplied by Mr. Wray is greatly inadequate. This renders a decision of the above question unnecessary. The principles settled in the case of Mims v. Mims, at the present term, are decisive of this, and prove that the chancellor committed no error. The decree of the chancellor is affirmed. Ríos, C. J., not sitting.