193 Mass. 593 | Mass. | 1907
At the trial of the libel the defence of condo-nation 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,
Exceptions overruled.