I concur in the decision in this cause. The opinion discloses the result is worked out on equitable grounds in view of the facts of the case.
However, I apprehend that our repeated announcement of the rule that allowances of this sort can be made only from the income or earning capacity of the husband, without limiting its application, may lead to manifest injustice.
One of the basic, fundamental, everywhere recognized legal obligations of the husband is the support and maintenance of his wife. This obligation is conditioned on the obligation of the wife to live with the husband and contribute to the making of a home for both.
If the husband, by wrongful conduct, drives the wife from home, so demeans himself that she may rightfully leave him, and take up her abode elsewhere, the husband's obligation to furnish support and maintenance is not abrogated, nor lessened. It may be the more imperative.
Here, we have a case of two old people, who have lived and labored together for half a century, accumulating not only a body of farm lands, but a substantial estate in money. Suppose, by reason of age and other conditions, the husband has ceased to have earning capacity, or any substantial income from his holdings, very like the case before us, what of the rule? If, in such case, he turn his wife out, and she does not want to finally sever the bonds of matrimony (if indeed she could do so), but asks a court of equity to require her husband to fulfill his obligation to support and maintain his wife, will she be denied relief because there is no income nor earning capacity, when there is an estate frugally accumulated for old age?
To ask the question, to my thinking, is to answer it in the negative. The notion that the income and earning capacity alone are to be considered because the wife is not entitled to a division of the corpus of the estate, and will get dower and distributive share at the death of the husband, is wholly illogical. It ignores the clear duty of the husband while living. The duty of maintenance is the reason for making any allowance. The estate to be divided on absolute divorce, or on the death of the husband, is not to be enhanced by disregard of obligations while living. To deny the wife the means of living, without fault on her part, because she may, by suing for an absolute divorce, obtain permanent alimony based on the value of the estate of the husband, is unjust. It would tend to force this course of action, when sound policy dictates that all incentives to reconciliation be left intact.
To deny her the means of living on the idea that maybe, if she survives the husband, *Page 442 she will get a share in the estate, is really absurd.
I write this merely to go on record to the effect that the rule stated in above opinion, following a long line of decisions, is not to be applied in disregard of the continuing obligations of the husband to support the wife, even from the corpus of the estate, if need be.