1. Although complainant testified that she would not return to her husband, that was not sufficient excuse for defendant not making conciliatory advances. By his own admission he made none, and for want of this, a separation that was willful and continued in so far as complainant is concerned, cannot be adjudged to be obstinate.
2. Complainant's accusation that defendant was entertaining other women and "running around" with them, with nothing more, does not constitute extreme cruelty.
3. Under R.S. 2:50-39 the only justifiable cause for abandoning a wife and refusing or neglecting to maintain and provide for her is a matrimonial offense on her part which would entitle the husband to a divorce. The "justifiable cause" referred to are adultery and extreme cruelty. To be available, such cause or causes must be pleaded as well as proved.
4. Upon the court consulting her as to her wishes, the daughter of the marriage expressed her choice of being placed in the custody of the father. While the court is not bound by her choice yet, the daughter being old enough to express her choice, custody to the father should be given at least a fair trial, with the right of unrestricted and unlimited visitation in the mother.
5. Defendant's income being $32 weekly, decree awarding $10 per week for complainant's maintenance and support, affirmed. Although defendant possesses an estate, the items constituting should be considered and treated capital assets, there being no showing of income derived therefrom.
PER CURIAM.
The decree under review will be affirmed, for the reasons expressed in the opinion of Advisory Master Campbell in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 14.
For reversal — None.