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ant that some men would just as soon shoot her with a revolver lying so near by, if she provoked them as she did this defendant, which act and suggestion on the part of this defendant was more to close their discussion than as being in earnest about the matter."
After denying that complainant was compelled to build fires he further answered:
“Defendant admits that complainant called the police upon one occasion when they were living together, and that the police were called to interfere upon the occasion of the complainant's father's assault upon this defendant at the store of Smith, Bridgman & Co., the day upon which this complaint was filed; but upon the first occasion there was absolutely no justification for her action, and this defendant believes that she was influenced in doing so by her parents, particularly her mother, as they lived only a few doors away, and the whole episode was the outgrowth of this complainant insisting on going to her mother's in the evening time and taking their six months old child with her, which this defendant objected to, as the child was suffering from a cold at the time, and, because of the defendant's not allowing her to take the child, her father and mother both came down and started a 'rough house,' and this defendant was compelled, in order to protect himself in the premises, to gently escort his mother-in-law to the wrong side of the door from her point of view, as she went one better than the proverbial motherin-law, his father-in-law showing some better sense, and behaving very sensibly in the premises by betaking himself from the premises after this defendant had kindly pointed out to him that it would be much more healthy and more dignified for him to do so, although he came there with blood in his eye,' and vowed vengeance on his 'vicious' son-in-law, and despoiler of their religiously inclined and much abused daughter's peace and happiness."
The foregoing flippant and pert language of defendant is characteristic of his entire answer and testimony.
Defendant claimed the benefit of a cross-bill, and asked for affirmative relief, mainly upon the ground that complainant was under the control and domination of her mother and would not obey him. He also prayed for the care and custody of the child.
We cannot undertake to quote the testimony pro and con in the case. Upon the charge of the use of profane language by defendant to complainant, shortly before her confinement, the testimony of complainant is corroborated by that of witnesses outside of the family. In fact defendant does not deny such conduct, but testified that he may have used profanity, but did not recall it, saying:
"I had no idea it would be remembered, because it had no significance. I said the incident was of such small significance that I never remembered it."
This court has held that it is extreme cruelty for a husband to swear at and curse a refined wife. On several occasions such language was used without any provocation. Briggs v. Briggs, 20 Mich. 34; Warner v. Warner, 54 Mich. 492 (20 N. W. 557).
The revolver incident and the occasion when defendant forced complainant out of the house and locked her out, seem to be established by the evidence. These are a part only of the improper conduct of the defendant. The general trend of the evidence is to the effect that defendant was possessed of an exacting and domineering disposition. His great dislike and aversion of his mother-in-law led him to harsh and cruel conduct toward his wife. He was very exacting and harsh in the treatment of complainant before her confiement, and seems to have had but little affection for her, and was most concerned in demonstrating that he was the ruler of his own house.
That she was nervous during the period of her pregnancy, and at times petulant, might well be expected. Defendant on direct examination testified:
"She would want an argument. It was useless for me to keep quiet for all she would do then would be to go in a corner and cry; she wanted to have it.
"Q. Did she seem more contented to have a little chewing match?
“A. Yes, sir; it seemed to relieve the pressure.
"Q. Her temperament was unusually irritable wasn't it?
“A. I believe it was.
“A. Yes, sir; some little excitement seemed to do her good.”
On cross-examination he testified that complainant would want to "scrap,” and he would “scrap" with her, "anything to oblige her.” The whole testimony tends to show that defendant was very far from being an affectionate and considerate husband. By his conduct the parties have drifted so far apart that we are satisfied that they can never live together in any proper manner. As this court said in Utley v. Utley, 155 Mich., at page 259 (118 N. W. 933), so we say here:
“We are impressed that the parties should be relieved entirely of the relations entered upon with their marriage."
The circuit judge tried to bring about a reconciliation, but failed, and then dismissed the bill of complaint, and gave no relief to either party. The fact, if it be a fact, that complainant was nervous, and perhaps paraded her troubles before her parents more than was wise, does not disentitle her to relief.
In the consideration of the case we have endeavored to give due weight to the advantage which the circuit judge had in seeing and hearing the witnesses give their testimony in open court. This, however, does not relieve this court from the duty of the exercise of its own judgment in passing upon the evidence in the case.
After the separation, the parties entered into an agreement relating to their property matters. Such agreement seems to have been fair and free from collusion. This court has consistently held that, after actual separation, or the launching of a bill for divorce, amicable settlements between the parties of their property interests are not only lawful, but are to be commended. Randall v. Randall, 37 Mich. 563; Palmer v. Fagerlin, 163 Mich. 345-349 (128 N. W. 207); Nichols v. Nichols, 169 Mich. 540-542 (135 N. W. 328).
An examination of the whole record satisfies us that the defendant has been guilty of such continued and persistent extreme cruelty as to entitle the complainant to a decree from the bonds of matrimony.
The decree of the court below will be reversed, and a decree entered here, granting complainant a divorce, and giving her the care and custody of her child.
Complainant will recover against the defendant her costs of both courts to be taxed.
MCALVAY, C. J., and BROOKE, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.
In re DE SPELDER'S ESTATE.
BOLTHOUSE V. DE SPELDER,
1. WITNESSES — HUSBAND AND WIFE - MATTERS EQUALLY WITHIN KNOWLEDGE OF DECEASED-ASSIGNMENT. The husband of claimant, who filed a claim against an
estate for services performed, was not such a party in interest because he had assented to his wife's performing the work and receiving the proceeds, as to be barred from testifying to the terms of the agreement between decedent and his wife under 3 Comp. Laws, g 10212 (5 How. Stat. [2d Ed.] 8 12856), excluding the testimony of an assignor of the claim as to matters equally within the knowledge
of the deceased. 2. CONTRACTS-MARRIED WOMEN_VALIDITY-HUSBAND AND WIFE.
A married woman is not disabled from making a contract
for domestic services and labor to be performed in the household of herself and husband and to be paid for out of her estate after death, notwithstanding she had no separate property at the date when she made the agree
ment. 3. EVIDENCE-ESTATES OF DECEDENTS—WILLS—CONTRACTS.
Upon the trial of a claim against the estate of decedent for
services rendered in the lifetime of deceased and to be paid for out of her estate by will, the admission of the will of her husband showing that it conveyed property to her, creating a separate estate, was not erroneous and the inventory of the estate of the decedent and her will
were also admissible in evidence. 4. SAME-VALUE-WORK AND LABOR.
Testimony of an acquaintance of decedent, who was inti
mate with the family and knew about the household affairs, was competent, and the witness was qualified to state her opinion relative to the value of services per
formed by the claimant, its weight being for the jury. 5. SAME-HEARSAY-SELF-SERVING DECLARATIONS.
Declarations in the interest of decedent who made them
are incompetent, if they were not made in the presence of the opposite party: the test seems to be whether she might have testified upon the subject if she was living.