Cowan v. Cowan

• Decision Date: 31 May 1885
• Citation: 139 Mass. 377,1 N.E. 152
• Parties: COWAN v. COWAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 377

1 N.E. 152

COWAN

v.COWAN.

Supreme Judicial Court of Massachusetts.

Filed May, 1885.

R.M. Morse, Jr., and H.L. Harding, for libelant.

FIELD, J.

The libelant was, at the time the libel was signed and filed, and ever since has been, under guardianship as an insane person, and actually insane. The argument against granting the divorce is that the wife has no wish to obtain a divorce, as she is incapable of having any actual wishes or opinions, and that the court ought not to grant a divorce at the request of her guardian and relations because they think it would be beneficial to her to obtain a divorce on the ground that her husband might thus be prevented from interfering with or ultimately sharing in her property. That the court has the power to grant a divorce on the petition of the guardian of an insane person is clear. Pub.St. c. 146, § 7; Garnett v. Garnett, 114 Mass. 379. There is no suggestion that the insanity of the libelant is temporary, or that she is likely at any time hereafter to be in such a condition of mind that her wishes and feelings can be ascertained, and there are no children. The libelee does not appear. The facts proved show a gross case of utter desertion; the libelant has considerable property, inherited from her father nearly seven years after the desertion began. We think the facts show a case in which the court can properly now exercise the power it has, and that neither public policy nor the interests of the parties require a continuance of the libel. See Baker v. Baker, 5 Prob.Div. 142; same case on appeal, 6 Prob.Div. 12.

In accordance with the terms of the report a divorce nisi from the bonds of matrimony must be decreed.