(12 Or. 431)

SUPREME COURT OF OREGON.

MCCLUNG V. STEWART.

Filed October 26, 1885.

ASSIGNMENT FOR BENEFIT OF CREDITORS - EXEMPT PROPERTY GOLD WATCH AND CHAIN.

A gold watch and chain, worth from $50 to $70, reserved by a debtor from the property assigned for the benefit of his creditors, held not exempt.

J. K. Weatherford, for appellant.

H. H. Hewitt and L. Fleem, for respondents.

LORD, J. This is an appeal from an order of the circuit court requiring the appellant, an insolvent debtor, to surrender and deliver up to his assignee, for the benefit of his creditors, a gold watch and chain, valued by his evidence to be worth from $50 to $70. By his deed of assignment the appellant transferred to his assignee all his property except such as was exempt from execution, but without any specification of such exempt property. The contention of the appellant is that a watch and chain may be properly considered as an article "of wearing apparel," and as such it is exempt from execution, and protected by his assignment. Our statute provides that the "necessary wearing apparel owned by any person, to the value of one hundred dollars," shall be exempt from execution if selected and reserved by the judgment debtor, or his agent, at the time of the levy, or as soon thereafter, before the sale thereof, as the same shall be known. to him, and not otherwise. Code, § 297, sub. 2. The question whether a watch is a necessary article of wearing apparel, and, as such, exempt, seems, from the decisions, to depend upon the particular facts or attendant circumstances of each case, such as the value of the watch, the condition and business of the debtor, etc., and has been differently decided under different circumstances. In Re Steel, 2 Flip. 324, the meaning of the term "wearing apparel," used in the bankrupt act, was carefully considered by HAMMOND, J., of the United States district court for the Western district of Tennessee. John Steele had been allowed and claimed no exemption except a watch which was described as "a plain, old-style, single-case, gold watch, which he had owned for twenty-five years or more, and which would scarcely sell for twenty-five dollars." The question was whether it could be held by him as exempt under the law exempting "other articles and necessaries," and "wearing apparel." The learned judge said: "It would not be doing any great violence to the meaning of the term wearing apparel,' as used in the bankrupt act, to include in it a gold watch of moderate value. The definition of the word apparel, as given by lexicographers, is not confined to clothing; the idea of ornamentation seems to be rather a prominent element in the word, and it is not improper to say that a man 'wears' a watch or wears

a cane. The exemption law of Arkansas says that 'wearing apparel, except watches, shall be exempt.' Ark. Dig. 503, 504; James, Bankr. 58; Avery & H. Bankr. 68." The court allowed John Steele the watch. In Rothschild v. Boelter, 18 Minn. 362, (Gil. 331,) it was held that a silver watch and chain, worth $40 or $50, worn by the debtor, is not exempt under the statute as "wearing apparel of the debtor and his family." The court say:

"That an article may be worn does not make it wearing apparel within this statute. The words are to be construed in this case according to the common and approved usage of the language, namely, as referring to garments or clothing generally designed for wear of the debtor and his family."

In Gooch v. Gooch, 33 Me. 535, it was held that a watch which the testator had been in the habit of carrying with his person does not pass by bequest of his wearing apparel. WELLS, J., says:

"The ordinary meaning of wearing apparel is vesture, garments, dress; that which is worn by or appropriated to the person. Ornaments may be so connected and used with the wearing apparel as to belong to it. There are implements, such as pencils and penknives, carried about the person, but not connected with the wearing apparel; these are not to be considered as clothing. To which class does a watch belong? It may not properly be called an implement, for it is used merely to look at; neither is it used as clothing or vesture. In its use it more nearly resembles the pencil or penknife. The court are of opinion that the watch did not pass under the phrase wearing apparel.'"

In Sawyer v. Heirs of Sawyer, 28 Vt. 251, it was held that a watch was not to be deemed wearing apparel. The court say: "Though a watch may have a further use than mere ornament, yet there is not enough to make it and its incidents wearing apparel." But on this point REDFIELD, C. J., thought otherwise, saying that "it seems that a watch which one wears, and the chain and seals, are dress and apparel." In Smith v. Rogers, 16 Ga. 480, an insolvent moved to exempt from sale a watch that he claimed to be a part of his wearing apparel. His wife had claimed and been allowed a gold watch. The court say: "Various articles of property have been from time to time exempted by the legislature from this liability; but among these articles is not to be found watches, unless they come under the head of 'wearing apparel.' It is doubtful whether they can be made to come under that head; if, however, they can, we think that not more than one can be made to do so." In Mack v. Parks, 8 Gray, 520, which was an action of tort for taking the plaintiff's watch from his person by force, the court seems to have considered the watch as "part of his dress or apparel." As having some bearing upon this subject, see, also, In re Thiell, 4 Biss. 241; In re Graham, 2 Biss. 449; Bumpus v. Maynard, 38 Barb. 626; Herm. Ex'rs, § 99. The exemption, however, under our statute is limited to the "necessary wearing apparel owned by any person to the value of one hundred dollars. In construing the word "necessary" in such connection the courts have been inclined to a liberal rather than a rigid construction. In Towns

v. Pratt, 33 N. H. 349, under a statute exempting the "wearing apparel necessary for the debtor and his family," the court say: “The word necessary,' as here used, is not to be understood in its most rigid sense, implying something indispensable, but as equivalent to 'convenient' and comfortable.' Peverly v. Sayles, 10 N. H. 356. It would therefore include such articles of dress or clothing as might properly be considered among the necessaries, in contradistinction to the luxuries, of life." Darlin v. Stone, 4 Cush. 359. If a watch is in no sense "wearing apparel," as some of the authorities indicate, the judicial construction of the word "necessary" is of no importance. On the other hand it would seem that if a watch worn by a person may be considered as a part of his dress or apparel, the word "necessary, as judicially construed, would not so materially affect the meaning of the phrase "wearing apparel" as to exclude it. It is probably true that a watch is ordinarily worn more for convenience than as a mere luxurious ornament. But to determine whether it is one or the other, necessary or luxurious, as an article of dress or apparel, the value of the watch is allowed to have a controlling influence in determining the result. If the value of the watch be unreasonable, or too much money be invested in it, the law regards it, as justice to the creditors would require, rather as a luxury than a necessity. And under our statute this element of value would necessarily become an important factor, as the exemption of "wearing apparel" is limited to $100. But, as we have seen, upon the question whether a watch is a necessary article of wearing apparel, the authorities are conflicting. Upon the whole, our own judgment inclines us to the opinion that the phrase "necessary wearing apparel," as used in our statute, may include in it a watch of moderate value, without doing violence to its meaning. We are not, therefore, prepared to say that a watch of moderate value is not a necessary article of wearing apparel, and as such exempt, when it is made to appear affirmatively that the watch and other articles of apparel selected or reserved, do not exceed the amount limited by the statute. "Prima facie, all the personal property of a judgment debtor is liable to levy and sale upon execution. If he would claim exemption for any of such property, he must bring himself and his property within the exception of some statute by proper proof. No property in his possession is exempt per se." Dains v. Prosser, 32 Barb. 291. It lies with the party claiming property to be exempt to prove the facts affirmatively which go to establish it. Until it is made to appear at least what are the articles and their value of wearing apparel selected and reserved by the judgment debtor, the court cannot determine whether the privilege of the exemption laws have been properly exercised, or abused to the injury of creditors. There is nothing in the deed of assignment, or in this record, to show what articles of wearing apparel, or the value of the same, which the appellant has reserved, except that he testifies that he has kept as exempt a gold watch and chain, worth from $50 to $70. v.8P,no.7-29

What other wearing apparel,-and from the necessity of the case he must have retained some,-the quantity and its value, he is silent about. The creditors have a right to know, and the facts lie within his knowledge, and unless he shows affirmatively the facts which sustain his right to the exemption claimed, the court will hardly aid him by presumption. This the appellant has not done, and the record before us discloses no error. The judgment must be affirmed.

(12 Or. 437)

BOON v. Boon.

Filed October 28, 1885.

HUSBAND AND WIFE-DIVORCE-CRUELTY-EVIDENCE.

Where a husband has provided a comfortable home for his family, the mere fact that he is occasionally addicted to drinking, manifests a jealous disposition, and causes his wife to be watched, will not amount to cruelty rendering the life of the wife burdensome, and justify a divorce, especially when the wife herself has been imprudent in her conduct, and irritable in her disposition.

B. F. Bonham, for Duenna Boon.

George H. Burnett and Mark A. Fullerton, for H. D. Boon.

THAYER, J. This appeal is from a decree rendered by the circuit court for the county of Marion, in a suit brought by Mrs. Duenna Boon against her husband, Mr. H. D. Boon, for a divorce. The circuit court granted Mrs. Boon the divorce, but did not decree her any portion of her husband's property, nor make any provision for the custody and support of the children of the parties, nor grant alimony to the wife. Both parties appealed; the plaintiff, from a part of the decree, the neglect to grant her the third interest in the defendant's real property, provide for the care and custody of the children, and decree the recovery of an adequate sum of money for their support; the defendant, from the whole decree. Section 495 of the Civil Code provides that "whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made shall in all cases be entitled to the undivided one-third part, in his or her individual right, in fee, of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in section 497; and it shall be the duty of the court in all such cases to enter a decree in accordance with this provision." Said section 497 empowers the court to further decree for the care and custody of the minor children, and for the recovery from the party in fault such an amount of money, in gross or installments, as may be just and proper for such party to contribute to the maintenance of the other. This section is only permissive in form, but the former one is imperative. I think, however, that the decree in such a case would be imperfect unless it provided for the care and custody of the minor children, if there were any. The decree, therefore, should be modified if allowed to stand. The defendant claims that it should not stand, but that it should be reversed upon the grounds that the allegations of the complaint and the proofs submitted do not warrant it.

By the laws of this state a dissolution of the marriage contract may be declared at the suit of the injured party for certain causes, among which is for cruel and inhuman treatment, or personal indignities rendering life burdensome.

The suit in this case was instituted upon that ground, and it is claimed upon the part of the wife that she has been subjected to that character of treatment by her husband. It appears that the parties. married in 1871; that they had five children, the oldest aged twelve years and the youngest aged three years at the time the suit was commenced. The husband has been in business, keeping a bookstore, and is still engaged in that business, and has been successful financially; has accumulated a reasonable competency; that he has supported his family comfortably, and that the wife and children have a good, comfortable home. The husband has been, unfortunately, addicted to drinking to excess at long intervals, but it has not incapacitated him from attending to his affairs, or rendered him morose or ugly. The wife says herself "that he is harmless on such occasions." She, however, claims that for a number of years past he has manifested a jealous disposition towards her when she would speak to other gentlemen, and find fault with her when she would go out in town for so doing; that upon such occurrences he would taunt her by inquiring whether she had not been to some disreputable place, or called on some disreputable person. She says that for some time past she has been in poor health, has been under medical treatment for disease peculiar to females, and that her physician had advised her that unless her husband would, to a great extent, refrain from sexual indulgence she could not be successfully treated; but that, against her protest and the advice of the physician, the husband had persisted in sexual intercourse with her to such an extent, as she was advised by her physician, that it had greatly injured her health and endangered her life. The proofs in the case were mainly directed to the question of the husband's jealousy, and his conduct connected therewith. A number of charges of misconduct upon his part are made in the evidence, but which he has explained away or denied. The charges in the complaint are of such a character that if the proof showed the husband had been imprudent, unreasonable, and persistent, it would not necessarily establish "cruel and inhuman treatment, or personal indignities rendering life burdensome."

Jealousy on the part of a husband may arise from a strong attachment for his wife, from high sense of honor for her reputation, and a desire that she shall be and appear perfect. Again, it may be incited by imprudent conduct upon her part. She may so demean herself as to attract attention and cause comment, and nothing is more calculated to exasperate a sensitive man than that. Whenever, therefore, his conduct has resulted from the influences referred to, and has not been too unreasonable and violent, it could not be deemed "cruel and inhuman.” It is only where he evinces a malignant desire to