Opinion
Submitted October term, 1930.
Decided April 4th, 1930.
On appeal from a decree of the court of chancery advised by Advisory Master Newman, who filed the following opinion:
"The petitioner in this case has not satisfied me that the defendant was guilty of willful, continued and obstinate desertion within the meaning of the statute in such case made and provided. The law imposes upon the petitioner the burden of establishing these facts by the greater weight of the evidence. This he has failed to do. In fact, the voluminous testimony would seem to indicate that the petitioner was only too willing to rid himself of his marital obligations, and it appears that no matter what view of the evidence is deemed correct as to how the separation occurred between the parties, the husband made no such advances and concession to resume the marital relations as the law requires, although the evidence indicates that the defendant was willing to resume marital relations with the petitioner. The attitude of the defendant does not commend itself to the approval of the court, and she seems to have been guilty of gross indiscretions, but, nevertheless, the petitioner has not established his case by the preponderance of the evidence as required under the settled law of this state, and I shall, therefore, dismiss the petition filed herein, and deny the relief sought, and I shall allow the solicitor for the defendant a counsel fee of one hundred dollars ($100)."
Mr. John C. Howe, for the petitioner-appellant.
Mr. William H. Smith, for the defendant-respondent.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Newman.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, DEAR, WELLS, JJ. 13.
For reversal — None.