France v. Safe Deposit & Trust Co.

Offutt, J., delivered the opinion of the Court. This is a suit for an absolute divorce brought by Dr. Joseph I. France, who died pending this appeal, against Tatiana V. Dechtereva France, his wife. It is alleged in the bill that the parties were married on July 27th, 1927, in Paris, France; that they separated on September 21st, 1931; that after that and until the institution of this suit on June 3rd, 1937, they lived separate and apart without any cohabitation between them, and that the separation was voluntary and beyond any reasonable expectation of reconciliation. The defendant answered, denying that the separation was voluntary or beyond a reasonable expectation of reconciliation, but admitting the other facts alleged in the bill.

Testimony was taken, depositions read, the parties heard, and at the conclusion of the hearing'the court decreed that the plaintiff be divorced a vinculo matrimonii from the defendant. In the course of the proceedings and after that decree the court refused and denied the defendant’s motion and petition for permanent alimony. From the decree and from that order the defendant noted the appeals in No. 28 and No. 30 on the Docket of this court for the current term. After the decree the court, on August 26th, 1938, ordered that the plaintiff pay defendant’s counsel $2500 for their professional services in her behalf, and on September 29th, 1938, it ordered ³¹¹ that pending the appeal the plaintiff pay the defendant §300 per month as. alimony pendente lite, and a further fee of §500 to her counsel for services in connection with the appeal.

From those orders the plaintiff noted appeals No. 29 and No. 31, on the same Docket. The four appeals are in one record, were argued, and will be considered, together. The appeal in the principal case presents two important questions, one, what is the true meaning of the word “voluntarily,” and the phrase “beyond any reasonable expectation of reconciliation” found in the five year separation provision of Code, art. 16, sec. 38, as amended by chapter 396 of the Acts of 1937, and, two, is the evidence in this case sufficient to support a finding that the separation of the parties was voluntary and beyond any reasonable expectation of reconciliation within that meaning? In dealing with the second question, weight must be given to the consideration that the plaintiff assumed the burden of proving the allegations of his bill by evidence of the quality and quantity required to support a decree of divorce. 19 C. J. 125; 17 Am.

Jur. 336 . The measure of proof required in cases such as this, which involve no question of moral turpitude is, as in ordinary civil cases, a preponderance of the evidence. 17 Am. Jur. 336 . Nevertheless the preponderance should be patent and definite and not strained or dubious, but if it is clear and definite it is enough even though it leave a residuum of doubt. 19 C. J. 125, 144; Ellett v. Ellett, 157 N. C. 161 , 72 S. E. 861 ; Anderson v. Anderson, 78 W. Va. 118, 88 S. E. 653 ; 17 Am.

Jur. 336 . Preponderance, as thus used, means that the weight of the evidence, tested by the number and character of the witnesses who give it, the inherent probability of the truth of their testimony, their interest in the issue, their bias, their demeanor on the witness stand, and the manner in which they testified, inclines more heavily to establish the existence or non-existence of facts in respect to which it is offered, than evidence to the contrary. Words and Phrases, First, Second, Third, and Fourth Series. ³¹² In considering the contrasting stories submitted by the parties of the vicissitudes and infelicities of their married life, it is useful to consider briefly their situation at the time of their marriage and separation, their background and their personal characteristics. Joseph I. France was a widely educated man, and held degrees in letters and in medicine.

He graduated from Hamilton College, and in medicine from the College of Physicians and Surgeons in Baltimore, he attended Clark College and Leipzig University, and the Johns Hopkins Medical School, and for a short time practiced medicine in Baltimore. He came to Port Deposit in Cecil County in 1897, and resided there with occasional absences until his death. At some time, not shown by the record, he married Evelyn S. Tome, with whom he lived until her death on April 22nd, 1927. He did not practice his profession after 1908, but at that time he appears to have been in the possession of a large fortune, he operated Mt.

Ararat Farms near Port Deposit, which he later sold for ¡¡¡>150,000, he appears to have been interested in the stock market, he traveled extensively, in later years took an active interest in politics, and was United States Senator from 1917 to 1923. In 1924, while a visitor in Russia, he met Tatiana V. Dechtereva, the defendant in this case, who was at that time some seventeen or eighteen years of age. She was a daughter of Vladimir Dechtereva and Tatiana Kassathine Restovskaya. When she was sixteen her father, who “was of noble birth,” was shot while she was carrying food to him in a Russian prison where he had been placed by the Bolshevik party of Russia, and her life at that time was passed in an atmosphere of bloodshed and terrorism and fear, which appears to have left deep and indelible scars on her mind and spirit, which have not healed.

Her family history showed a predisposition to mental illness, she herself was emotionally unstable, and suffered from time to time from attacks of nervous or mental ill ³¹³ ness of varying degrees of severity, characterized by depression, fear, agitation and physical collapse, and in 1937 she suffered from an illness which justified the diagnosis of purpura haemorrhagica, a disease characterized by copious hemorrhages from the mucous membranes. She had nevertheless a mind of excellent quality. She spoke three languages, Russian, French and English, very well, and had some knowledge of Italian and German, and was occupied at times in the translation of books. She was a devout member of the Russian Catholic Church, and apparently conscientious in her observation of its feast and fast days.

Before her marriage she lived with her mother in Moscow. The family was without means, her mother was employed as an interpreter and translator there for the Moscow correspondent of the Chicago Daily News, and it may be inferred that it was through that connection that she, and through her her daughter, met Dr. France in 1924. The mother said, and there is no contradiction of her statement, that Dr. France proposed to her daughter in 1924, but for obvious reasons there could have been no marriage then, for his first wife did not die until April 22nd, 1927, about three months before his marriage to the defendant. At that time it may be inferred from Dr. France’s testimony that he knew of the mental and physical condition of the woman he married, for he said: “Q. Well then, you had an ample opportunity of knowing of your’s wife’s physical and mental condition long before you married her ?

A. I would say not. In a general way I knew of her condition, yes. Q. That’s what I say, you knew her some years before you married her, about four years? A. Not so much, no.

Q. About three years? A. I think it was about three years Q. So that you had occasion to observe her in those three years before you married her? A. Yes.” They were married first by Harry Chatonet, assistant to the Mayor of Paris, and later according to the rites of the Russion Orthodox Church by Sergius Bulgakov, a ³¹⁴ priest of that church. On June 17th, 1927, about ten days before the marriage, the parties executed an ante-nuptial agreement, under which each party waived and released his or her marital rights in the property and estate of the other.

At that time it may be noted that she had neither property nor expectations of property, while Dr. France was a very wealthy man. He was then fifty-four years old and she twenty-one. After a wedding trip of about two months, Dr. France returned to this country, but for some reason she declined to return with him at the time, but he returned something over a month later and brought her and her mother back with him, and she remained with him at their home in Cecil County with occasional absences until August, 1929, when he accompanied her and her mother on a trip to Europe. She returned to their home in June, 1930, and except for temporary absences remained with him until September 21st, 1931.

In April, 1931, she left their home at Port Deposit and went to New York, where she remained with her mother for a period which Dr. France at one time said was three months, at another two months. The evidence concerning the circumstances of that separation is conflicting. Mrs. France said that she went to New York to attend her church in Russian Easter Season, that Dr. France had “always allowed” her to do that. He said that she went to New York for a week’s visit, and declined to return.

She said that while she was in New York, Dr. France came to New York, and: “He was jealous. He called me on the telephone and he rushed in. He came to New York. He called me on the telephone, started a scene, a violent scene.

It was a holiday in the church at night, he called me and asked me. He was just jealous as he used to be many times. So the next day he rushed up all excited and at once he started a very bad scene, that’s what I call a bad temper, a fit of temper, so he accused me of staying in New York all by myself because I needed a suit, and said that I have no right for anything, which I refused all my rights that I ³¹⁵ shall die in the streets and then after that he left the room. Q. Then he said you have no rights under the ante-nuptial agreement and he said you would be on the streets?

A. Yes. Q. Did he say you will hear from my attorney? A. Yes, he left the room saying ‘you will hear from my attorneys,’ and he left the room saying, ‘You will hear from my attorneys.’ Q. Your church as I understand it, was in New York? A. Yes.

Q. That’s how you got there? A. Yes.” She added that he said she was spending too much money, that he objected to her purchase of a blue suit, and that he accused her “of different things, just shouting,” that she stayed on for several days with her mother, and that Dr. France called her mother on the telephone and wanted to know “Why are you staying so long ?” She also testified that she was frightened by the threats, and went to Baltimore to see a lawyer to see “what this meant, what was this pre-nuptial contract and why I had no rights.” She did see a lawyer, Matthew Gault. Later the parties were reconciled and she returned to Port Deposit. Explaining her visit to Mr. Gault, she said: “There was never a suit for divorce.

I was frightened by continuous threats. I asked the lawyer what continuous threats about I had no rights, I asked his advice, what was the situation and then I didn’t know what was the nuptial contract because I didn’t understand what I was signing, and then I asked what was the situation, what did the pre-nuptial contract mean, what was the situation that he could threaten to me, she would be left in the streets.” Dr. France denied that there was any quarrel in New York, and speaking of the reconciliation in Baltimore, he said: “You said that she employed a lawyer and that she discovered her mistake and came back. Didn’t you come and get her in Baltimore? A. She employed a lawyer and threatened to bring suit for divorce.

Shortly after I had announced myself as a candidate in the Republican Presidential Primaries. You may draw your own conclusions about that.” ³¹⁶ Dr. France’s testimony concerning the final separation of the parties is meagre and unsatisfactory. He was asked, “What did you know about her leaving and about her purpose of going abroad; what information did you have of that?” and he replied, “No information except that she wanted to go, I presume.” Later he said that the separation “was voluntary. I didn’t wish her to go but she was unhappy, and I consented to her going and supporting her while in Europe, showing that it was voluntary on my part, and she remained away, showing it was voluntary on her part.” It appeared from his testimony, however, that he accompanied her to New York, that he stayed at the Pennsylvania Hotel with her overnight, that he bought the steamship tickets for her and her mother, and that he accompanied them to the boat.

When asked whether she Was in good health, he said that physically she was well, “Nervously she was not well.” He was then asked “Didn’t you say that because she was nervous that she could go with her mother for a trip to Europe?” and he replied, “She had said that she was miserable and unhappy on the farm, and therefore I consented.” He also said that he had told her before she left on that occasion that the separation would be final. But when asked when he made that statement, answered that it was in August. Referring to that separation, he gave this testimony: “Did you have any understanding with her when she left; was she supposed to—did you say how long she was to stay? A. I presumed it was permanently.” Mrs. France gave an entirely different version of the separation.

She said that after she returned to the farm in the summer of 1931 she found Dr. France engaged in a campaign to secure his nomination as the candidate of the Republican party for President of the United States; that during her stay Senator Bourne and his wife visited them, and apparently while they were there news came that her sister, who was ill in Rome, had attempted suicide by jumping into the river Tiber, and was seriously injured, and that . in consequence her mother de ³¹⁷ cided to go to her, that Dr. France told her to go with her mother, and that Mrs. Bourne spoke to her “very much about going with my mother because Dr. France had to devote all his time to his political activity. He said he would be freer without me.” She was then asked whether Dr. France had said how long she was to stay, and she answered “until the issue of the campaign, until he was nominated.” Describing their parting on the boat Mrs. France testified: “Did Senator France go to the boat with you ? A. Of course he did, and he went down to see me in a taxi. I offered him to stay.

If he forgets, I remember it too well. I don’t forget. Q. Did he wish at any time anything except that after the campaign was over you were to return? A. Oh, that I was to return after the issue of his campaign was over.

Q. It was an affectionate farewell? A. Yes, very affectionate. I was crying.” Mrs. Tatiana N. (or K.) Dechtereva, Mrs. France’s mother, asked whether Dr. France had said anything about his wife’s return from the visit to her sister, testified: “What were the dates?

A. He was saying in January she might return because then he will be through with the very busy part of his campaign and be able to take care of her in the fall. Q. Was that your understanding, that you and she would come back within the year? A. No, not I. I begged him to let me stay longer in Italy. I understood my daughter had two broken legs.” Dr. France had been asked on cross-examination whether, prior to the departure of his wife and his mother-in-law for Italy, he had not written a letter to the Italian consul asking for a visa to permit the return of his mother-in-law to this country.

For some reason not apparent in the record the offer of the letter was overruled. Mrs. France’s mother had been a guest of Dr. France and her daughter, and since it was improbable that she would have returned to his home if he and her daughter had permanently separated, the letter was inconsistent with his statement that the separation was permanent and voluntary, and it should have have been ³¹⁸ admitted. In it, referring to Mrs. Dechtereva, he said: “She will not renew her Russian Soviet Passport but will travel under an affidavit, stating that her passport has expired and as she will become a citizen of the United States, she will not apply for another Russian Passport. Together with her affidavit, as to her not having a passport, she will also have a re-entry permit allowing her to return to the United States, as she was admitted under the preferred quota, and has taken steps toward securing her Citizenship in the United States.” Mrs. France remained in Italy until the .following spring or summer, when she removed to Paris, where she remained until she came to this country as a defendant in this suit.

In May, 1932, referring to Mrs. Dechtereva, Dr. France cabled Mrs. France: “Mothers visa approved severe winter here Congress Hotel Chicago March fifteenth New York Twenty First.” Mrs. France testified that while she was in Italy she had a cable from her husband which she said was very bad and brutal, that he “wanted to divorce me,” nevertheless from that time until after the institution of this suit there was an extensive and voluminous correspondence by letter, cable and telephone between the parties. Without attempting any extended analysis of this correspondence, it may be said that it is characterized throughout by these constantly recurring and persistent notes which are quite inconsistent with the idea that when Mrs. France left her home in Port Deposit she did not intend to return. Throughout the whole correspondence Dr. France expresses again and again his undying love for his wife, his consciousness of an obligation to support her, his loneliness without her, his sympathy for her in her illness, and his desire for her return; for instance as late as March 20th, 1937, he cabled her: “Love and adore you believe I can make you well come visit me as your Doctor friend am trying telephone you Monday Love to All Answer.” Notwithstanding these protestations of love, there recurs again and again in his messages a suggestion ³¹⁹ for divorce, beginning shortly after his wife went to Italy and continuing until his letter of March 30th, 1937, when he wrote: “I believe, unless you wish to come back, that for the sake of both of us we should be divorced.” On the other hand, such testimony as there is indicates that Mrs. France was also devoted to her husband and desired to live her life with him. In a letter to her dated February 9th, 1933, quoting apparently from a letter to him from her, he wrote: “I take your words: ‘Tell me that you will care for me, not forsake me.’ These words reveal the very deep cause of your trouble.

No woman ever needed security and protection more than you. When I made you my wife, became your husband I took upon myself, the duty of caring for you. It was a joy also. I can do nothing for you now, since I could not make you happy, but take care of you.

That I shall do. I can not promise you great wealth but I can promise you that you are secure and protected by my financial care for you. That is my work, my first work and duty while I live and my will provides for you after I am gone. So, on the material side, you may feel secure, protected as my wife.

But, more than this you may feel that you are protected by my love for you.” Then on July 9th, 1937, he cabled: “Thanks beautiful letter all understood forgiven not hate love much gratitude your kindness write often no reproaches I suffered I take your advice against divorce worry no more Tania France love adore you happy you remain wife forever tell father my reverence affection also I planned no remarriage ask him pray for me you need not come if ill see Cunard surrender Saturday reservation if not coming your letter gave peace believe every hour you absent miss answer quick tender love forgive me.” Mrs. France testified without contradiction that in March, 1937, Dr. France had a conversation with her over the long distance telephone from this country to France, which she thus described: “Dr. France tells me this—he cabled me before that I should come to America and when he telephoned he said, ‘You need not come, you ³²⁰ are too ill now.’ He answered me, ‘How are you? Is it difficult- for you to speak ? Take care of yourself. Take care of mother.’ I told him, T miss you always.’ He answered me, ‘You are a sweet girl.’ I begged him and implored him to come to me, that I was very ill and lonely, that I missed him and I need you, and he said, T cannot come to you because I am making some money on the market exchange,’ and I begged him to come and be with me, and at last he said, T may come later to you’ but instead of doing that he started these proceedings.” She also made this reference to another telephone conversation on June 23rd, 1937: “ ‘Do not worry.

Do not do a thing. Wait for my letter. I have-written you many letters. I have not sent them.’ I told him, T miss you.

I want to see you,’ and he ordered me very sharply, I said, T miss you.’ He ordered me very sharply and unpleasant. Q. So he asked you not to do anything about the divorce ? A. Yes, ‘Do not worry, do not do a thing. Wait for my letter,’ which never came.

He wanted me to wait and not to do a thing.” In sharp contrast with Dr. France’s professions of affections in his correspondence with his wife, were his actions and his statements to others. His wife was without funds or resources except such as he furnished, and throughout her stay in Italy and in France, she appears to have been so ill that she was unable to travel alone. He made her a substantial allowance for her living expenses there, but he failed to send her funds for the expenses of a trip to their home in Maryland, and when she had an opportunity to come back with the Rev. Father Sergius Bulgakov, her friend from childhood, and so cabled him, he neither answered nor sent money for the necessary expenses of the trip. Mrs. Helen A. Shenitz, a friend of Father Bulgakov, testified that on the occasion of a visit of Father Bulgakov to her home in 1934 Dr. France came there to see him.

That he again visited her in 1936 and that on that occasion said that he wanted a divorce, that he wanted to marry another woman, and that still later he called again and the following conversa ³²¹ tion took place between him and Father Bulgakov: “First he talked to Father Sergius about the same subject, but then I talked to him exactly three hours about bringing his wife here, I begged him, I wanted him to understand the situation, how miserable was Mrs. France, how sick she was. I was exhausted trying to make him believe the necessity of bringing his wife here. His answer was always no, no, and no. Finally when he said he cannot at present, I said all right, practically, ‘Senator, how about my furnishing the money to bring your wife here?’ He said, ‘No, I couldn’t consider this’.” The testimony of Father Bulgakov, together with that of Dr. Julia Rentchitsky, Dr. Albert Capmas, Dr. Serge Ilnitzky, Dr. Kabaret Agadjaniantz and Dr. Máxime Lipschitz, was taken in Paris, France, before John R.