Kershaw v. Kershaw

Marbury, C. J., delivered the opinion of the Court. This is a bill for divorce a vinculo, brought by the husband against the wife, and a cross-bill for the same kind of absolute separation, filed by the wife against the husband. The husband is 53 years old and the wife, 48. They have been married 29 years arid they have two grown children.

In June, 1947, they were living on a farm in Delaware. The grown son was living with them, and his married daughter and her husband were living somewhere in the neighborhood, on a farm they had. The husband was a boiler maker who had given up working at his trade in order to run the farm. Apparently all of them worked at it, although not without some dissention.

On June 2, 1947 (according to the ³¹¹ husband), or on June 12, 1947 (according to the wife), the husband, wife and son were getting in a load of hay. Some dispute arose between the son and the husband as to the lowering of a hay fork. The husband then used some violent language and threw a brick at the son, narrowly missing him. The altercation continued and when the son-in-law and his wife came over that evening, the son-in-law remonstrated with the husband about working the son too hard.

He ordered them to leave, which they did the next morning. Apparently their purpose in coming was to help get up the hay, and the husband was angry because the son-in-law was not there the day before. He said that the son was lazy and would not work. The wife and the son and the daughter, however, all say that the whole difficulty was due to the husband’s violent temper and his insistence that things be done the minute he ordered them done.

That night, June 2nd or June 12th, the husband requested his wife to fix another room for him as he wanted to leave the common bedroom. She said she was unable to move the furniture that night. On the next night she fixed him a single bed in the room where they slept. The following night she fixed him a bed in another room, where he went, and thereafter remained.

He does not deny this, but claims that two or three times afterwards he went in his wife’s room, but she would not talk to him. When he did this is rather indefinite, but he said the last time was in August. Subsequently, on July 10th the husband and wife entered into an agreement to sell the farm. This was prepared and signed before a notary public in Delaware, and it was executed under seal.

They agreed to sell the joint property, real and personal, and to divide the proceeds equally with the exception of the cattle which would remain the property of the husband. The wife further agreed, in consideration of the division of the proceeds, that she would waive any and all legal rights to any claim for personal support by her husband in the future. In October, 1947, the farm was sold for $7,000. It ³¹² does not appear whether there was an oral or a written agreement of sale.

However, settlement was made December 15. On November 20th the wife left the farm, and went to live with her daughter and son-in-law. She said she did this because the farm was about to be sold, she would have to leave very shortly thereafter, she had the opportunity then to go and so she did. When settlement for the farm was made on December 15th, there was no settlement for the personal property.

The wife received $3,225 and the husband, $3,725. The husband remained on the farm until January 15th, 1948, at which time he had to give possession to the purchaser. Prior to that time his wife filed proceedings for support against him in Delaware, and as a result of that he paid her an additional $750 and she and the son signed a release. She claimed that he owed her $850 and he claimed he owed her some $300.

So the figure of $750 was arrived at and paid. This release, which was not under seal, acknowledged the payment of the money.and attempted to release the husband from any claim arising out of the contract of the 10th of July, 1947, and ratified the statement in that contract that she would claim no support and maintenance from the husband. She agreed to