KOFFMAN v. KOFFMAN

Marriage and Divorce. Legitimacy. At a hearing on the objections of a wife to making absolute a decree nisi for a divorce obtained against her for cruel and abusive treatment, if the libellee shows that a child was born to her after the decree nisi was granted and that the date of its birth is consistent with its having been begotten by an act of intercourse which the libellee set up before the decree nisi as condonation on the part of her husband, the entire proceedings can be reviewed for the purpose of determining what shall be the final disposition of the case.

If, at a hearing on the objections of a wife to making absolute a decree nisi for a divorce obtained against her for cruel and abusive treatment, the libellee shows that a child was born to her after the decree nisi was granted and that the date of its birth is consistent with its having been begotten by an act of intercourse which the libellee set up before the decree nisi as condonation on the part of her husband, and the judge finds on a review of the evidence, including the testimony of the husband, that there was no condonation because there was no act of intercourse between the husband and wife at the time alleged and testified to by the libellee, this finding, although it may imply adultery on the part of the libellee, does not affect the legitimacy of the child, as the evidence properly considered by the judge upon the issue of the condonation would not be competent to show that a child thus born in wedlock was illegitimate.

BRALEY, J.

At the trial of the libel the defence of condonation by a single act of intercourse was not sustained upon the evidence, and a decree nisi was entered. Before the time was ripe for making this decree absolute a daughter was born to the libellee, and it was within the scope of her objections not only to introduce this fact, but in connection therewith to review the former evidence upon this issue for, until final decree, the divorce was not absolute, nor the marriage contract dissolved, and as the parties legally remained husband and wife the entire proceedings could be reviewed for the purpose of determining what should be the final disposition of the case. Pratt v. Pratt, 157 Mass. 503, 505. Moors v. Moors, 121 Mass. 232, 233. Cook v. Cook, 144 Mass. 163. Chase v. Webster, 168 Mass. 228. The only additional evidence seems to have been the birth of the child, and upon further consideration of this event with the former evidence, the judge declined to reverse his finding, although correctly ruling as requested that if condonation were found the libel would have to be dismissed. But this finding does not as contended by the libellee tend to bastardize the child as it is well settled that the declarations of either parent are inadmissible to show that children born after marriage are illegitimate. The issues were distinct, and if in the attempt to show condonation the evidence tended to prove adultery on the part of the libellee, although the daughter was born within the natural period from the time of the alleged act of intercourse, this would not be competent evidence to prove her illegitimate. Canton v. Bentley, 11 Mass. 441, 443. Hemmenway v. Towner, 1 Allen, 209. Phillips v. Allen, 2 Allen, 453. Sullivan v. Kelly, 3 Allen, 148, 150. Haddock v. Boston Maine Railroad, 3 Allen, 298, 300. Abington v. Duxbury, 105 Mass. 287, 290. Chamberlain v. People, 23 N.Y. 85, 88. Tioga County v. South Creek Township, 75 Penn. St. 433, 437. Egbert v. Greenwalt, 44 Mich. 245, 248. Mink v. State, 60 Wis. 588, 584. Parker v. Way, 15 N.H. 45. Bowles v. Bingham, 2 Munford, 442. Goodright v. Moss, Cowp. 591. Murray v. Milner, 12 Ch. D. 845. Dysart Peerage case, 6 App. Cas. 489. The twelfth request therefore was refused rightly, nor could the remaining requests properly be given. Upon evidence not reported the allegations of the libel had been proved to the satisfaction of the judge, and the marital offence not having been forgiven by the libellant, he was entitled to a final decree. Whiting v. Whiting, 114 Mass. 494.

Exceptions overruled.