
    Renwick vs. Renwick.
    In a suit for an absolute divorce for adultery, where the matter is referred to a master, to take proof of the facts charged and to report the same with his opinion thereon, it is not the province of the master to decide the question whether the adultery charged has or has not been committed ; but he is merely to report the proofs with his opinion thereon, for the ultimate decision of the court. No exception can therefore be filed to his report; but the objection that he has formed an erroneous opinion upon the testimony must be made at the hearing of the cause.
    Where the master has proceeded irregularly, or where it is necessary to examine additional witnesses in relation to the subject matter of the reference, a special application must be made to the court for relief, upon due notice to the adverse party.
    A master cannot grant a certificate for a general commission, upon a reference, to examine witnesses not named therein, unless all the parties interested, and who have appeared in the cause, consent to the issuing of such general commission.
    1843. November 21.
    To authorize the master to grant a certificate for a commission upon a reference, except by consent, the party applying for it must produce to the master an affidavit, showing the names, residences and materiality of the witncssess ought to be examined ; to the end that if any of the witnesses named arc not credible persons, or the adverse party wishes to examine other witnesses to explain or rebut their testimony, such adverse party may join in the commission, and may name witnesses on his part, or may obtain a certificate, for a separate commission for that purpose at the same time.
    And the like notice of the examination of witnesses, under a commission to be executed in this state, upon a proceeding in the master’s office, must be given as is prescribed in the 74th rule.
    Whore some of the witnesses who were examined under a commission which had been issued upon the certificate of the master, were not named in such certificate and commission, the court ordered their depositions to be suppressed.
    Where an absolute divorce is granted against the husband, for his adultery, the wife is entitled to retain for her own use, and for the education and support of the children of the marriage if any there are, all the real and personal estate which belonged to her at the time of her marriage, or which has come to her by gift, devise, or descent, from any of her relatives during the coverture, which the husband had not recovered and reduced to his actual possession previous to the commission of the offence for which the divorce is grpnted.
    Under the provisions of the revised statutes the divorced wife is entitled to her real estate, discharged of the husband’s life interest therein as tenant by the curtesy initiate, and to her bedding and other goods left with her by her husband, and also, to all such choses in action, legacies, and distributive rights, not collected or reduced to possession by the husband, as would have belonged to her by survivorship, in case the marriage had been dissolved by his death at the time of making the decree for the divorce.
    The bill in this cause was filed for a divorce on account of the adultery of the husband. The defendant allowed the bill to be taken as confessed for want of an answer • and the usual order of reference was made to a master in New-York to take proof of the facts charged in the bill, and to report, such proof to the court, with his opinion thereon. The witnesses to prove the charge of adultery resided in the county of Tompkins. And upon the certificate of the master a commission was issued, to a commissioner residing at Ithaca, to take the examination of the persons named in the master’s certificate, and of such other persons as should be produced before such commissioner. Under this commission the complainant examined three witnesses not named therein; of the examination of one of whom the defendant’s solicitor did not receive due notice. Upon the return of the commission the defendant’s solicitor applied to the master for a new commission, to take testimony to impeach the witnesses previously examined; but he furnished no names of witnesses, nor any affidavit showing that the characters of any of those who had been examined under the commission were bad. The master therefore refused to grant a new commission, or to delay his final report. He reported the depositions of the three witnesses not named in the complainant’s commission, as part of the testimony to establish the adultery charged in the complainant’s bill, although such depositions were objected to by the defendant’s solicitor. The cause was thereupon set down for hearing upon the bill taken as confessed and upon the master’s report. The defendant’s solicitor applied for leave to except to the report, and to set aside the depositions of the three witnesses as irregularly taken ; and for further time to examine witnesses on his part. But he produced no affidavit showing that there were any witnesses on his part whose testimony was material upon the question then pending before the court.
    The chancellor decided that under the statute the master was not finally to decide the question whether the defendant had or had not been guilty of the adultery charged in the bill, but was merely to report the proofs, with his opinion thereon, for the ultimate decision of the court upon such proofs ; and that no exceptions, therefore, could be filed to the report. The chancellor said that when the master had proceeded irregularly, or where it was necessary to examine other witnesses upon the subject matter of the reference, the proper course was to make a special application to the court, upon due notice to the adverse party, for relief; but if the only objection to the report was that the master had formed an erroneous opinion upon the testimony in the case, that was a mere matter of argument upon the hearing of the cause, and the error would be corrected by the court if the opinion of the master was wrong. He also decided that the master could not grant a certificate for a general commission, to examine witnesses not named therein, except with the consent of all parties interested, who had appeared in the cause ; that to authorize the granting of the certificate for a commission, unless by consent, the parly applying for it must produce to the master an affidavit, showing the names, residences, and materiality of the witnesses sought to be examined ; to the end that if any of such witnesses were not credible persons, or if the adverse party wished to examine other witnesses to explain or rebut their testimony, he might join in the commission and name witnesses on his part, or might obtain a certificate for a separate commission for that purpose at the same time; and that the like notice of the examination of witnesses, under a commission which was to be executed in this state, upon , a proceeding in the master’s office, should be given as was prescribed in the 74th rule of the court. He therefore ordered the depositions of the three witnesses not named in the commission to be suppressed; and directed the cause to be heard upon the testimony which had regularly been taken, only—the complainant’s counsel not wishing to avail themselves of the testimony of those three witnesses.
    
      B. F. Butler § A. H. Dana, for the complainant.
    
      W. S. Sears, for the defendant.
   The Chancellor.

The adultery of the defendant as charged in the bill is fully established by the testimony of several witnesses. The divorce must, therefore, be granted as prayed for ; and as no objection was made, upon the hearing, to the giving the care and custody of the children who had not arrived at the age of twenty-one to the mother, their care and custody must be committed to her until the further order of the court. Indeed, it is charged in the bill, and admitted for the purposes of this suit, that the defendant, several years since, abandoned his wife and family, and has contributed nothing to their support; and that the complainant has provided for the support and education of her children out of the income which she .has received from the estate of her father, under his will. She is of course entitled to a decree for costs against the defendant. And her counsel ask that the property which has been devised and bequeathed to her by her father, and the income thereof, may be decreed to belong to her, free from any claim of the defendant or his creditors or assigns thereon; and that the defendant may be perpetually enjoined from taking any proceedings to reduce the same, or any part thereof, to his possession, or to charge or impair her claim or title thereto, or from intermeddling therewith in any manner.

At the common law the interest of the husband in the real estate of the wife only continued during coverture ; and therefore if she was divorced a vinculo, she was entitled to her real estate immediately, in the same manner as if she had survived her husband. And if the husband had aliened the same during the coverture, she could bring her writ of cui ante divortium to recover the land. (Fitz. Nat. Brev. 204, 471. Coke Litt. 326.) And although the husband had sold his interest, which he obtained by the marriage in the real estate of the wife, or the land had been delivered over to a creditor of the husband, upon an extent, a divorce granted to the wife divested the title of the grantee, or of the tenant by elegit, in the same manner as if the marriage had been dissolved by the death of the husband. (Barber v. Root, 10 Mass. Rep. 260.) So in relation to all rights and cboses in action where it was necessary, during the coverture, that the action to- recover the same should be brought in the names of the husband and wife jointly, and where the right of action would survive to the wife or her personal representative in case the husband died first, upon the divorce of the wife for the misconduct of the husband they must, upon the same principle, belong to the wife, if the husband has not reduced the same to possession previous to the divorce ; in the same manner as if the coverture had been terminated by the death of the husband at the time the divorce was completed. And where the husband has forfeited all right to his wife’s property y by his wilful violation of the marriage contract, it is perfectly just and equitable that she should be permitted to retain for her own use, and for the education and support of the children of the marriage if there are any, all the real and personal estate which belonged to her at the time of the marriage, or which has come to her by gift, devise, or descent from any of her relatives during the coverture ; and which the husband had not recovered and reduced to his actual possession previous to the. commission of the offence for which the divorce is granted. (See Haviland v. Myers & Bloom, 6 John. Ch. Rep. 178 ; Van Duzer v. Van Duzer, 5 Paige's Rep. 368; Hake v. Fink, 9 Watts' Rep. 336 ; Gallego v. Gallego’s ex’rs, 2 Brock. Rep. 285.) The court of errors and appeals in the state of Mississippi went further than this, in the case of Tewksbury v. Tewksbury, (4 How. Rep. 109,) and decreed to the wife, upon granting a divorce on account of the adultery of the husband, a restoration of all the property which he had received by virtue of the marriage, although he had reduced it to possession.

The statute of this state gives to the wife, upon the dissolution of the marriage upon the ground of the adultery of the husband, as a matter of right, and without reference to the question of alimony, all the real estate of which the husband is then seized in the right of his wife, and of which she is the real owner ; and also any goods or things in action which were left with her by the husband, or were acquired by her own industry, or which were given to her by devise or otherwise, or to which she is entitled by the decease of any of her relatives intestate, as her sole and absolute property. (2 R. S. 146, § 46.) And the evident intention of the legislature was, not only to give to her such real estate discharged of the husband’s life interest therein, as tenant by the curtesy initiate, and her bedding, &c. left with her by the husband, but also all such choses in action, legacies and distributive rights, not collected or reduced to possession by the husband, as would have belonged to her by survivorship if the marriage had been dissolved by his death at the time of making the decree. If this does not cover the whole property to which she was entitled under the will of her father, except what the husband has received and spent or has reduced to possession and transferred to a bona fide purchaser previous to the time of the commencement of this suit, she is to be decreed to have whatever remains thereof; to" be applied to the support and education of such of the children of the marriage as are minors.

The decree therefore will declare her rights accordingly; and will award a perpetual injunction, restraining the defendant, and all others who may have acquired any right or interest in such property or choses in action under him since the commencement of this suit, from bringing or prosecuting any suit or instituting any other proceedings whatever for recovering or obtaining the possession thereof, or of any part thereof, or whereby the right or .interest of the complainant therein, as above declared, shall or may be in any wise changed or impaired, or from intermeddling therewith in any way whatever.  