Draper v. Draper

• Decision Date: 30 June 1873
• Citation: 1873 WL 8269,68 Ill. 17
• Parties: WILLIAM W. DRAPERv.MARY E. DRAPER.
• Court: Illinois Supreme Court

68 Ill. 17

1873 WL 8269 (Ill.)

WILLIAM W. DRAPER

v.MARY E. DRAPER.

Supreme Court of Illinois.

June Term, 1873.

APPEAL from the Circuit Court of Washington county; the Hon. SILAS L. BRYAN, Judge, presiding.

Messrs. WATTS & MILLER, for the appellant.Messrs. CASEY & DWIGHT, and Mr. THOMAS S. CASEY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill filed by Mary E. Draper, in the Washington circuit court, against William W. Draper, to obtain a divorce, on the ground of extreme and repeated cruelty. The bill prayed alimony, and that the custody of the children be decreed to complainant. Afterwards, an amended bill was filed, alleging that defendant was fraudulently conveying and otherwise disposing of his property to his brother and others for the purpose of depriving her of alimony, and prayed an injunction to restrain him from selling, and making his brother Horace and a number of other persons defendants. William answered, denying the cruelty charged, and all fraud in selling his property, alleging that he only sold for the payment of his debts. Horace answered, denying all fraud in purchasing, and insisted that it was in good faith.

A trial was had before a jury, resulting in a verdict in favor of complainant, whereupon the court rendered a decree divorcing the parties, giving the custody of the children to complainant, and decreeing the payment of $3000 as alimony, payable in installments of $500 each, every six months. The court also decreed that the conveyance from William to Horace was void, and subjected the land to the payment of alimony, and dissolved the injunction as to the other defendants, but made it perpetual as to him.

It is insisted that the court erred in permitting the daughter of complainant, a child of nine years of age, to testify on behalf of her mother. The grounds of objection are, the want of knowledge and the want of age. She testified on the voir dire that she “understood the nature of an oath, and that if she did not swear the truth she would get into hell-fire.” This is believed to be within the most rigid test as to the knowledge necessary to permit persons to testify. She seemed to fully comprehend the nature of an oath, and was a competent witness. It is also an elementary rule of evidence that intelligence, and not age, must govern in permitting persons of tender years to give testimony. The law has fixed no age at which they may or may not testify. In this case, the witness seems to have possessed sufficient intelligence, and there is no force in the objection. It is urged that the court below erred in rendering the decree without defaulting the defendants who had failed to answer, or in failing, on the hearing, to dismiss the bill as to them. From an examination of the evidence, it will be seen that there is no testimony against them upon which to render a decree that could affect their rights. They were unnecessary parties, and according to the strict rules of practice the bill should have been dismissed as to them. But, inasmuch as they do not assign errors, and as no decree was rendered against them, we can not reverse for that reason. It in nowise concerns appellants whether they were dismissed from the case or not, as no wrong can result to appellants from the want of such dismissal.

It is also urged that the finding of the jury is not sustained by the evidence. After carefully considering it, we are of opinion that it clearly preponderates in favor of the finding. There was some conflict in the evidence, but it was for the jury to weigh and consider it, and find their verdict as the testimony preponderated; and having done so, we have no inclination to disturb the verdict.

It is objected, that the court erred in decreeing the custody of the children to the mother instead of to the father; that he has the legal right to their custody. At the common law, as a general rule, subject to some exceptions, the proposition is true; but under our statute regulating proceedings for divorce, the court has a large discretion in determining to which parent the children will be given. Even at the common law, the court, acting for the best interests of the child, would, when of tender years, usually intrust it to the mother. In such cases, the maternal affection is more active and better adapted to the care of the child than the hired services of a nurse, and the court inclines, until the child advances to an age that does not demand the mother's care, to leave it in her custody, unless her character and habits render it improper and likely to be injurious to the child. Again, the decree in this respect is not conclusive, but may, whenever the interests of the children may require it, be altered and so modified as may promote their interest. In this case, the children are of quite tender years, and for that reason we have no inclination to reverse or modify the decree in that respect.

It is claimed that the court below erred in vacating the title conveyed...