Thomas v. Thomas , 41 Wis. 229 ( 1876 )

Lyon, J.

I. A controlling question in this case is, whether the original judgment for $300 in full for alimony is final and conclusive.

In Campbell v. Campbell, 37 Wis., 206, it was held that the circuit court has no power to make a final judgment for alimony, and cannot divest itself of authority to revise such a judgment (p. 220). In Hopkins v. Hopkins, 40 id., 462, it was held that the allowance to the wife of a gross sum in an action for a divorce, “ unless expressly stated so to be in the judgment, is not to he regarded as a division or partition of the property of the husband between the parties under sec. 29 (ch. 111, R. S.), but must be treated as alimony proper.” See also Coad v. Ooad, ante, p. 23.

On the authority of Hopkins v. Hopkins, it must be held that the original judgment in the present case was not for a division of the defendant’s estate between the parties, but awarded alimony to the wife; and although such award purports to be in full for alimony, still, on the authority of Campbell v. Campbell, it must further be held that the circuit court has power to revise the judgment in that behalf.

II. The petition admits that the defendant is insane. Under ch. 295, Laws of 1874, the plaintiff was incompetent to testify as a witness in her own behalf on the hearing of such petition. But all the material averments of the petition are abundantly proved by the testimony of other witnesses. Hence, although it was error to permit the plaintiff to testify in her own behalf, such error could not have prejudiced the defendant and is not ground for reversal of the judgment. E. S., ch. 125, sec. 40.

III. ¥e think it was not error to admit evidence of the value of plaintiff’s past services and disbursements in the care and maintenance of the child of the parties. "Whether an allowance therefor ought to be made, eo nomine, or not, doubtless those services and the cost of such maintenance are elements to be considered in determining whether the original judgment for alimony should be changed, and if so, to what extent. The primary duty to support both mother and child remains with the defendant, notwithstanding the divorce. Campbell v. Campbell, supra. Inasmuch as we have concluded that the best interests of the parties require that a final division of the defendant’s estate be made between them, no specific allowances in respect to the care and support of tlie daughter, past or future, ought to he made.

IY. The defendant’s estate in the hands of his guardian consists of U. S. bonds for $12,500 par value, and a farm worth $3,000. No good reason is perceived why those bonds, like other property, should not be estimated at their actual value, in ascertaining the value of the defendant’s estate. At present quotations we think it safe to compute the premium on the bonds at ten per cent. Deducting $750 for certain liabilities of the- defendant, his estate, on the above basis, is worth $16,000. The circuit court estimated it at $18,000, but at the time of the hearing the premium on the bonds was 23 or 24 per cent., which accounts for most of the difference in the two estimates.

Y. After due consideration of all the facts in the case, we have reached the conclusion that there should be a final division of the defendant’s estate between the parties, and that there should be awarded to the plaintiff, as her just and equitable share thereof, the sum of $4,500, to be paid at such times and in such manner as the circuit court shall direct. This will leave in the hands of the guardian $11,500 — the income of which will doubtless be amply sufficient for the care and support of the defendant while he remains in his present unfortunate condition.

By the Oowrt. — The judgment of the circuit court is reversed without costs, except that the clerk’s fees will be taxed against the defendant; and the cause will be remanded with directions to that court to render judgment in accordance with this opinion.