Gaylor v. McHenry

• Decision Date: 17 December 1860
• Citation: 15 Ind. 383
• Parties: Gaylor v. McHenry and Others
• Court: Indiana Supreme Court

15 Ind. 383

Gaylor v. McHenry and Others

Supreme Court of Indiana

December 17, 1860

APPEAL from the Fayette Common Pleas.

The judgment is reversed, with costs. Cause remanded.

B. F Claypool and N. & G. Trusler, for appellant.

J. C McIntosh, for appellee.

OPINION

Hanna J.

This was a suit for partition, brought by the appellant, Mary Ann Hayden, now Gaylor, against the heirs of Hosea Hayden, her late husband. They appeared and answered, that at the time of his death she was living apart and separate from him, in Rush county, in adultery. Upon this question an issue was formed, and by agreement of parties, submitted to a jury. The verdict was affirmative upon the question so submitted. The judgment was for the defendants, and stated the fact found by the jury.

It is urged that the Court erred, in receiving and excluding evidence, in giving and refusing instructions, and in overruling the motion for a new trial.

By 1 R S., § 32, p. 253, it is provided, in reference to descents and apportionment of estates, that, "If a wife shall have left her husband, and shall be living, at the time of his death, in adultery, she shall take no part of the estate of her husband."

The evidence before the jury showed that the appellant had left the deceased about a month after they were married; that he died some six months thereafter. One witness testified that he had intercourse with her, a few days before the death of her husband. Several witnesses testified to the bad character of this witness for truth; a few that it was good. The Court, over the objections of the plaintiff, permitted the defendants to make proof of her general character, for virtue and chastity, after she left Hayden, and until his death. No effort was made to sustain it.

The plaintiff asked the Court to instruct the jury, that if they believed she had been guilty of but one single act of adultery, from the time she left her husband until his death, and that with a person with whom she was not living at the time, that such single act, of itself, would not constitute a living in adultery within the meaning of the statute.

The Court refused to give the instruction, but gave the following:

"If you are satisfied from the evidence that the plaintiff was living apart from her husband at the time of his death, then inquire carefully whether during this time she was guilty of having carnal, sexual intercourse with any person in the county of Rush; if this is true, it would be, under the statute, a living in adultery, &c.

"Under the issue, and the evidence adduced before you, there is but one material fact for you to decide, and that is, was the plaintiff guilty of having sexual intercourse with one Joseph Anderson, as stated by him before you; for if you believe the testimony of this witness, then you should find the plaintiff guilty of adultery as alleged in the defendants' answer; on the contrary, if you do not believe the testimony of Anderson, you will find for the plaintiff."

The question, and the main question in the case, is, was the ruling of the Court on these instructions right?

In Wright v. The State, 5 Blackf. 358, it was held by this Court, that testimony showing an occasional illicit intercourse,...