59 N.J. Eq. 515 | New York Court of Chancery | 1900
This matter was previously before the court upon affidavits-seeking alimony pendente lite, and on that application alimony was allowed... It has now come to final hearing, and testimony
The only proof of the fact of adultery is the alleged confession of the wife in writing, which she signed, and the statements which she is alleged to have made to the husband. If the ■wife’s alleged confession and the statements ascribed to her by her husband’s testimony should be eliminated, there would be nothing in the case to support the charge against her.
The question of the effect of a confession by a wife of her adultery has been fully considered in Summerbell v. Summerbell, 10 Stew. Eq. 603. In that case the opinion of Barker Gum-mere, Esq., as master, collates and comments upon the cases in a manner so thorough and discriminating as to be of the utmost value. The opinion of the court of appeals, affirming the decree advised by him, discusses the special facts shown. The syllabus of the case states the principle which governed the decree advised by the master and affirmed on appeal. The whole dispute turned upon the weight to be given to a confession of adultery by the wife, and the court of appeals declared that such a confession, written by the wife in the presence of the husband, is presumed to be procured by coercion and is not a safe basis upon which to build up a charge of adultery against her.
The case now under consideration is for alimony and not for divorce, but the defence set up is the adultery of the wife, and the same considerations which induce the refusal to recognize an unsupported confession in divorce cases apply in this suit. The presumption of the husband’s coercion in obtaining the confession and the impolicy of accepting an admission of the wife, which may free the husband from the obligations of his marriage contract to support her and cast that duty upon the public, are presented here quite as effectually as in a divorce suit.
The circumstances under which the alleged confession by the wife of her adultery was given are substantially these: The husband liad for several years prior to 1898 maintained adulterous relations with a paramour. He had for along time of his own choice, ceased to observe his marital relations with
The husband details another letter .incident. He testifies that on another occasion he proposed to open the wife’s chiffonier, but that she resisted and seized something from it, which he magined was a letter. She hid this something in her stocking
As to this alleged patched letter, whether there ever was any such paper in the wife’s possession depends wholly upon the husband’s uncorroborated testimony, which is flatly contradicted by her. Their son, Edgar, testifies that his father once showed him a letter addressed “ Dear Addie” and signed with the name of the wife’s alleged paramour, and that it contained one phrase which he recalls, which coincides witli a similar phrase to that which the husband recites as contained in the full letter. Neither the young man nor the father, nor anyone else, attempted to prove that the patched letter was in fact written by the supposed paramour. The only .inculpatory facts shown were that the letter itself indicates lecherous relations between the writer and the addressed person, and that it was alleged by the husband that the wife had it in her possession and threw it away in her flight, and that he recovered it. This partially-corroborating testimony of the son was not given under circumstances which made his statements credible. He admitted on cross-examination that before this cause was actually moved, in December, 1898, by the taking of depositions before Philip S. Scovel, Esq., master, his father had shown this patched letter to him, but he testified that he did not know whether his father knew that he was acquainted with it. This was certainly false,
The son again, for the fourth time, appeared as a witness, and undertook to account for the non-production of the patched letter and the alleged original confessions. He testified that his mother, after she had left his father’s house, at first tried to bribe him to deliver the papers to her, and on his refusal came back to the house while his father was absent, and, against the son’s protest, took a couple of papers out of his father’s private box and carried them away, and afterwards admitted to the son that she had burned them. These papers, he stated, were the patched letter and the original confession. His testimony does not show that he had previously ever seen the alleged original confession, nor did he testify that he actually saw either paper so as to identify it in any way, at the time he says his mother took them out of the box. The testimony of this young man does not command belief. He is about eighteen years of age, and is in his father’s employment. His manner of giving testimony was hesitating and uncertain, and left upon the hearer a sense that he was not relating events which he recalled, but was
Taking all of the proofs regarding these two events, there is no sufficient evidence to establish their inculpatory character. Some of the circumstances narrated happened, but the testimony given satisfies me that those incidents which tended to cast suspicion upon the wife’s character were created by the husband and woven into the narration of other innocent happenings, in order to put her to shame. He had, in fact, no reason to doubt her fidelity, but he was in great straits to have some such accusatory circumstance. Every witness who touched upon these points failed to sustain his testimony, and several contradicted, him.
It was after these two incidents as to letters that the confession, alleged to have been made by the wife, came into being. In the latter part of June, 1898, the husband produced to the witness Crane a paper, written by himself, narrating the four acts of adultery on the part of the wife, which are recited in the amendment to the answer. The husband testifies that the wife had stated the facts to him, he had written them down, and she had signed it. He requested Mr. Crane to put it in better form, and the latter, at his home, copied the substance of it and appended an acknowledgment to it, and, at the husband’s request, attended at the latter’s printing office to have the wife sign it. Mr. Crane prepared the written confession, which was produced in evidence, before he talked with the wife on the subject, copying, in substance, the paper written and handed to him by the husband. In accordance with the latter’s request, Mr. Crane, taking both papers with him, attended at the husband’s printing office to have the wife sign the confession. The husband went into their residence which was immediately next door to the office, and brought the wife into the office. The witness Crane says, that the wife wanted the husband to be there, but that he (the witness) said, “Ho, she must be there alone,” so the husband went into the adjoining press-room. The witness Crane says, he then read to the wife the copied paper, which is dated July 16th, 1898; told her she did not have to sign it if she did
The wife denies that she ever made any statement to her husband, denies that she ever signed any written, for her by him, and testifies that her signature to the statement prepared by Mr. Crane was obtained from her under these circumstances. Her husband insisted that she should go before some one, naming several, among them Crane, and sign a paper confessing her adultery. She refused, declaring the thing suggested was a false charge. He persisted, repeatedly following her about the house,, and threatening and tormenting her to agree to sign such a paper,, she always denying and refusing. Finally, Mr. Crane was-brought to the office, next door to their residence, by the husband, who told her she had got to go in and sign the paper. He began to swear at her, shook his fist at her, and told her she-had got to get out if she did not, and that he would watch and see that she did it. Her nerves had, by his previous worriment, been all unstrung, and, under these threats, she went from her house into the office, the husband waiting in the next room, and signed the paper which Mr. Crane had, at the husband’s request,, prepared. She says Mr. Crane did not read the papér to her,, and that he told her that it didn’t amount to a row of pins, and that he believed she was innocent.
The husband testifies that after the execution of this paper there was an agreement between him and his wife that she would stay at his house until he got a housekeeper, and as he expressed it, that “ she would do to suit herself and I would do-
The non-production of the incriminating patched letter and the original confession are thus accounted for by the husband. He says he put them in his private box, and in the fall of 1898 he missed them; he intimates that his wife took them in, his absence.
The son testifies as above stated that his mother took these papers out of his father’s private box and afterwards told him that they were “ in smoke.”
It will be noted that the whole question whether -there was any original confession turns upon the testimony of the husband. He received the alleged confession, and prepared the written statement which he says his wife signed. She denies that there ever was any such confession by her, and that she signed any other than the one written by Crane by the husband’s direction. Mr. Crane, of course, saw the paper which the husband gave him, but he is not shown to have been acquainted with Mrs. Perkins’ signature. He says the signature to the original was the same as that Mrs. Perkins made to the new paper in his presence, but no other proof than this supports the claim that she ever signed the first paper. It was quite within the husband’s power to have framed the supposed original confession and to have simulated his wife’s signature to it.
The wife admits that she did sign before Mr. Crane the written confession which is produced, but declares it was obtained by the threats and compulsion of the husband. The husband’s own story is that he obtained the confession from his wife when she and he were alone together. He said it was voluntarily made after he got the letters and about three weeks before she left his house. There seems to have been no reason whatever
The undisputed circumstances surrounding the making of the supposed confession tend to confirm her story. He had the-paper prepared in advance; this saved the necessity for any explanation of the facts by her to Mr. Crane. He invited Mr.. Crane to come to his office, and himself went after Mrs. Perkins,. Avhom he saw alone, and brought her into Crane’s presence. Crane says she wanted Mr. Perkins to stay in the office, and it Avas Mr. Crane who sent him away, and not he who voluntarily absented himself. The paper which Mr. Crane had prepared was read to her; she signed it; he took her acknowledgment; ther.e seems to have been no conversation about it, except that he told her she need not sign it if she did not want to do so. Mr. Crane says “ there was not much chance for any talk back and forth, because as quickly as the paper was signed we sent for Mr. Perkins to come in, and there was no argument at all about the matter.” Mrs. Perkins Avanted Mr. Crane to keep-the paper, but he declined, and Mr. Perkins took it away. The acknowledgment does not contain the phrase “ without any fear,, threats or compulsion on the part of her husband.” It simply" certifies that she acknowledged it to be her voluntary act and deed.
Considering all of the evidence touching the creation of this supposed confession, it appears to have been originally admittedly secured by the husband privately from the Avife. Such a confession presented by the oath of the husband alone could never have been the basis for a decree that the Avife was an adulteress. Summerbell v. Summerbell, ubi supra, and cases there cited.
The circumstances of alleged corroboration show the continued action of the husband in procuring the alleged confession to be put in more available form, all the while under his immediate attendance and surveillance save only during the short instant that the Avife’s signature and acknowledgment could be secured, and during even that time it was known to the wife that he was-
When, however, corroborating proof is sought of the detailed facts of the supposed adulteries of the wife narrated in the confession, there is an absolute absence of any support. No witness testifies that the wife and the paramour were ever seen together. The.husband says that on the one occasion on which, after sixteen years’ absence, the alleged paramour came to their house, the wife told him that the paramour had kissed her. several times, but she denied this statement; no other proof sustains it. One of the acts of adultery stated in the confession named a day when the parties registered, at a named Philadelphia hotel, as man and wife. There was no attempt to prove that the fact happened as narrated in the confession, save that the son testified that, on that date named, his mother was absent from home. Other proof showed that on the time named she was with her sister. Neither any clerk, nor other person in the hotel, nor its registry-book was produced to show7 that the parties were at the named hotel as stated in the confession. The evidence show's neither proof of any such feeling between the wife and the alleged paramour as might have tempted her to forget her marriage vows, nor of any opportunity to gratify such a feeling had it existed.
The defence of the adultery of the wife has entirely failed, and the evidence necessary to support a decree for alimony under the twentieth section of the Divorce act is sufficient.
Upon consideration of all the circumstances of the case a deoree will be advised that the husband pay to the wife, for her maintenance and support, the sum of $7 every week until the further order of the court, with an additional counsel fee of $25 and the costs of this suit.