It is well settled in this State that where the evidence is conflicting and there is substantial evidence to support the chancellor's findings, such findings will not be set aside unless the chancellor's conclusions from the evidence are clearly erroneous. This rule is especially applicable, where, as in this case, the testimony was all taken before the chancellor in person. This Court has always been reluctant to disturb the decree of a chancellor upon the facts, especially where the evidence is conflicting and much depends upon the credibility of the witnesses. We have even gone so far as to hold in several cases that the findings of a chancellor on questions of fact, when the testimony is taken before him, are entitled to the same weight as the verdict of a jury, and if there is competent evidence, which if believed, will support his findings, they will not be disturbed unless clearly erroneous. See Bosheir v. Moeller,
Applying these principles to the record in this case, which I have read very carefully, since the rehearing was granted, I do not believe that we should disturb the decree of the chancellor except in two particulars. In view of all the testimony, I think it is quite plain that the appellant and appellee lived together as husband and wife quite happily for a period of some nine or ten years, during which time the wife in many ways was helpful to the husband in his business and *Page 405 made it possible for him to give practically all of his time to the maintenance and building up of his business, which he evidently did with a considerable degree of energy and business ability. Indeed, the record indicates to my mind that the appellee husband was to some extent responsible for the tragic circumstances which brought about their separation. There is strong indication in the evidence that as the years went by he became more and more absorbed in his business and more and more careless and indifferent to his wife and his home. Unfortunately, this happens all too often, especially, it seems, in the case of energetic and ambitious men. However, the evidence does indicate that this husband was fairly liberal with his wife in money matters and allowed her to render considerable financial and educational assistance to members of her own family. In the early days, the wife had to work quite hard, doing all of her house work, looking after the children, milking the cows, etc., until they moved into Salerno, after which time she did not have such heavy household duties, but did put in a large part of her time looking after her husband's small marine supply store and otherwise assisting him in his business. And several of the complainant's witnesses, who testified that the character of the appellant had become bad for chastity, also testified that they liked her very much, and one of them, old Mrs. Gunderson, testified that in spite of all that had been said, the elderly Engebretsen would be welcome in her home at any time. In view of these circumstances, I think that the chancellor should have made a somewhat more liberal allowance or property settlement in behalf of the wife than was made, and also that the custody of *Page 406 the children should have been more equally divided between the husband and the wife, as the best interest of the children would permit, as provided for in the original opinion of the court.
I am also inclined to the view that the charge of cruelty made in the wife's cross-bill was substantially proven, especially at the time of and shortly subsequent to the separation, not only by the testimony adduced in her behalf but also by some of the testimony adduced by the complainant in the court below.
With these modifications, I concur in the dissenting opinion written by Judge Welch, sitting in the place of Mr. Justice ADAMS, who was disqualified. At best, this is a sad case, and one which has given this court considerable concern, as it must have given the chancellor below. However, for the reasons above stated, I think the decree of the chancellor should be affirmed with the modifications above suggested.
But a majority of the Court have just as honestly and sincerely reached the conclusion that our original opinion and judgment should be adhered to, and this conclusion becomes, of course, the judgment of the Court.
