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The only evidence on the part of the defendant was his own testimony, which consisted of a general denial that he ever promised complainant to be her husband or asked her to be his wife, or lived with her as such. His testimony was not only discredited by what has been said of his conduct and representations and the apparent relation assumed, but in a much greater degree by his own letters. While complainant was at Toronto he wrote her many letters, and after the birth of the boy rejoiced in that event, saying, among other things: "Every one I have told about the little boy is very much pleased, and all send their best wishes for your speedy recovery, and they all please me when they wish long lise to our little boy. I think between us that we can bring him up in as good a style as any papa or mamma in the land.” In his letters he gives the names of a number of his friends who send their regards. These are not the letters of a man who is telling his friends and receiving their congratulations upon the birth of an illegitimate child in such relation as he now claims. They are letters characteristic of a husband and father rejoicing upon the event and solicitous for the health and welfare of his wife and child. There were many other letters written by him after she returned to Chicago, in September, 1886, and in all more than forty such letters were introduced in evidence. In pursuing his business as gambler and book-maker he was away from home a considerable portion of the time in different places where races were in progress, and these letters were written from such places. The envelopes of eleven of them had also been preserved, and they were directed to “Mrs. Simon L. Elzas.” In them he addressed her as "Dear Ada," and admitted that in one of them he addressed her as wife. We think that the court was justified in giving but little credence to his statements.
The only thing, beside his naked denial, which could tend to defendant's advantage in any way, is the fact that complainant, in a suit before a justice of the peace, while testifying to her marriage to defendant, said that there was a ceremony on Wabash avenue, but she did not know by whom or whether it was by a minister or not, but it was a customary ritual through which they go under such circumstances. Her only explanation was that the examination before the justice was an unpleasant one, and she became confused and could not remember what she said. But whatever was said there, we think, in the light of all the evidence, the marriage contract was established in this case. She never admitted at any time that they were not married, but refused an allowance of $75 per month offered her on condition that she would make such an admission. Her testimony on this hearing was corroborated, and the evidence was sufficient to establish the relation claimed. It is true that the relation between the parties was in its inception mere. tricious, and not matrimonial, and that a relation so commenced will be presumed to continue of the same character in the absence of proof of a change in its nature; but the parties might assume legitimate and proper relations, and should be commended for doing so, and it is, of course, admissible to show that such a change took place. In this case there was an immediate change when the contract was made. She packed up her things and they moved to a respectable place, and afterward lived in decent and respectable places. He deserted her with out cause in March, 1891. She and her sister testified that at the time of the desertion he had been in New York, and on his return she upbraided him for relations with disreputable women and neglect of her, and that the only reason he gave for leaving her was that he was tired and was going to quit. There is not a word of evidence that she did not keep faith with him or fulfill to the utmost her wifely duties.
It is insisted, however, that there was no desertion, because, after leaving her and removing his effects, he continued to contribute to the support of her and their child. His abandonment of her was intentional and de. signed to be permanent, depriving her of his society and his protection and companionship. He willfully denied to her every right of a wife except the allowance in aid of her support and that of his child, and permanently absented himself and abandoned all matrimonial relation with her. Desertion and absence are treated as synonymous in our decisions. (Carter v. Carter, 62 Ill. 439; Fritz v. Fritz, 138 id. 436.) To forsake and abandon complainant and absent himself from her was desertion, and it was not the less so because he made some allowance for her. (Magrath v. Magrath, 103 Mass. 577.) The payment of the allowance only discharged a legal responsibility resting upon him, the neglect of which has, since 1893, constituted a misdemeanor, for which he might be prosecuted and punished.
It is insisted that the court erred in allowing a solici. tor's fee of $100 upon the appeal to the Appellate Court. The allowance was authorized by the statute, and we see no objection to it.
Defendant, at the time of the hearing, was in the employ of a New York wine house as traveling agent, at a salary, as he testified, of $1000 and his traveling expenses. His personal expenses were about $1500 a year, and his net income, after paying all his own expenses, was $2500. The allowance of alimony was $1000 a year. He testified that he made voluntary contributions to aid some relatives, but, with the net income stated, the allowance for the support of his wife and boy eleven years old was not excessive. The judgment of the Appellate Court is affirmed.
171 610 172 480
BERNARD P. GAVIN
Opinion filed February 14, 1898.
171 610 f184 76
184 271 f184 272 171 205 559 205 4561 171 640 214 4118 114a 4240
1. EQUITY-equity will not suffer a right to be without remedy. Equity will take jurisdiction in all cases where a right recognized by municipal law exists, for the protection and maintenance of which courts of law provide no adequate remedy.
2. SAME-rights for which equity will provide a remedy must be reengnized by municipal law. Those rights for the protection and maintenance of which equity will provide a remedy are not mere abstract moral rights, but rights recognized by existing municipal law.
3. SAME-jurisdiction of equity to grant relief does not depend upon precedent. Where a right recognized by municipal law exists without adequate remedy in courts of law, equity will not refuse relief because no precedent can be found where equitable relief was granted under the same state of facts.
4. SAME-power of equity to order sale of trust estate conditioned against alienation. A court of equity having jurisdiction of a cause cannot be denied the power to order the sale of real estate which is the subject of a trust, upon the sole ground that the terms of the instrument creating the trust prohibit alienation; but such power should be exercised only when necessary to preserve the estate or the interests of the parties therein.
5. SAME-when equity may order sale of real estate, and re-inrestment, to protect rights of owners. Upon a bill by a life tenant equity may appoint trustees to take the fee in the property, sell the same and re-invest the proceeds for the benefit of the life tenant and the remainder man, where it appears that unless equity interferes the property will be lost to both life tenant and remainder-man.
6. PARTIES—when decrce will be binding upon parties not in being. Where devised property will be lost to the devisees without the aid of a court of equity, that court, having obtained jurisdiction of all devisees in being, may render a decree which will protect the rights of all the devisees, whether in being or unborn, and such decree will be binding upon devisees subsequently born.
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.
EDWARD W. CULLEN, for plaintiff in error.
JOHN W. WALSH, for defendant in error.
Mr. JUSTICE Boggs delivered the opinion of the court:
John Gavin died testate on the 25th day of April, 1892. He left surviving him three sons, Bernard P. Gavin, (the plaintiff in error,) John F. and James C. Gavin, and a daughter, Susanna Curtin, (the defendant in error,) wife of William D. Curtin. The deceased, at the time of his death, owned two parcels of real estate in the city of Chicago, described as follows: The north-west quarter of the north-west quarter of section 18, township 38, north, range 14, east of the third principal meridian, (except the east 424.37 feet, and also except the park-way and boulevard,) and sub-lots 3 and 4 of lot 4, block 53, original town of Chicago. The parcel first above described contains about twenty acres of land, and is, for sake of convenience, denominated by the parties in the briefs, and will be hereinafter referred to by us, as the "Fifty-fifth street property.” The other parcel, for the like reason, is referred to in the briefs as the “Market street property,” and will be so called by us.
The will of the deceased is as follows:
"'I, John Gavin, of the city of Chicago, in the county of Cook and State of Illinois, being of sound mind and memory, do make, publish and declare this my last will and testament, hereby revoking all former wills by me at any time made.
"First-I direct that my funeral expenses and just debts be first paid.
“Second-I give and bequeath the following sums to the following persons, and charge my real estate with the payment of the same, viz.: To my friend Eliza Farrell, five hundred dollars ($500); to my friend Patrick Farrell, five hundred dollars ($500); to the directress of St. Joseph's Academy, conducted by the sisters of Charity near Emmettsburg, Frederick county, Maryland, one thousand dollars ($1000), to be expended or invested by her in such manner as she may deem for the best interest of said academy; to the president of St. Mary's College, situated near said Eminettsburg, five hundred dollars ($500), to be expended or invested by him in such manner as he may deem for the best interest of said college.