Tully v. Tully

Separate Maintenance — Husband and Wife — Pension. Under the Pub. Sts. c. 147, § 33, the Probate Court may properly pass an order requiring a man to contribute towards the support of his wife, although his only means of complying with the order are derived from a pension granted to him by the United States.

Petition to the Probate Court, under Pub. Sts. c. 147, § 33, alleging that the petitioner was the wife of Luke Tully; that he failed, without just cause, to furnish suitable support for her, and had wilfully deserted her; and praying that the court would prohibit the husband from imposing any restraint on her personal liberty for such time as the court should direct, or until the further order of the court, and would make such further order as it deemed expedient concerning her support and maintenance. On this petition the judge of probate ordered that the husband be prohibited from imposing any restraint on the personal liberty of the petitioner; and that he pay the petitioner for the support of herself the sum of twenty-five dollars on the first day of January, 1891, and the sum of eighteen dollars on the first day of each subsequent month until the further order of the court. The case was submitted, on appeal, to the Superior Court, upon agreed facts, in substance as follows. The respondent and the petitioner were husband and wife, and lived together in Lowell until about March, 1885, when the respondent wilfully deserted the petitioner, and enlisted in the navy of the United States for a term of three years. .While in the navy the respondent became partially blind, and was discharged therefrom about July, 1886. He then returned to Lowell, and went to live with his wife. They continued to reside together until November, 1886, when the petitioner, being unable properly to care and provide for the respondent, who had become totally blind, caused him to be sent to the poor farm in Lowell, where he remained until some time in March, 1887, when he again went to live with the petitioner, occasionally performing labor, until about April, 1888, when the petitioner, being unable properly to care and provide for him, again sent him to the poor farm. The respondent remained at the poor farm until December, 1888, when he was taken out by his brother, who, with the assistance of a sister, cared for him up to the time of the petition and trial in the Probate Court. After the respondent was discharged from the service of the United States on account of disability, he made application for a pension, which was granted on or about May 1, 1890, the respondent receiving about $2,800 in a gross sum, and was further given a pension of $72 per month. All of the $2,800 except $250 was expended by the respondent in payment of board, clothing, and in gifts to his brothers and sisters, and the only sum of money the respondent had at the time of the trial was the $250, which he had in his own personal custody and control, and was entitled, prospectively, to a pension of $72 per month, payable quarterly; and the respondent had no other means or property than as above set forth. The respondent was, at the time of the trial, totally blind, and unable to perform manual labor of any kind, and required constant care and attention. The petitioner is unable to work steadily on account of sickness, and has no means or property for her support other than is earned by her personal labor and services. The Superior Court affirmed the decree of the Probate Court; and the respondent appealed to this court.