Tillison v. Tillison

• Decision Date: 25 March 1891
• Citation: 22 A. 531,63 Vt. 411
• Parties: JED P. TILLISON v. LILLIA M. TILLISON
• Court: Vermont Supreme Court

22 A. 531

63 Vt. 411

JED P. TILLISON v. LILLIA M. TILLISON

Supreme Court of Vermont

March 25, 1891

JANUARY TERM, 1891

Judgment reversed and cause remanded.

L F. Wilbur, for the petitioner.

OPINION

THOMPSON

Under the libellant's offer, the letters were properly excluded. It did not appear that the libellee had ever received them or had any knowledge of their contents. The most that can be claimed is that the letters are in the nature of a confession or criminating admission made by Clarkston, the alleged particeps criminis, but such a confession or admission neither made in the presence of the libellee nor communicated to her, is inadmissible. 2. Bish Mar. and Div. (4th. Ed.) Sec. 642. The letters were not part of any act done by Clarkston by which she could be effected without knowledge of or participation in it. They were not admissible as part of the res gestae as tending to qualify it, for the act done consisted in the writing and sending of the letters to White. Pond v Pond,132 Mass. 219. They had no tendency to prove that the libellee had in fact committed adultery with him. It is contended that they show an adulterous intent on the part of Clarkston, but it is difficult to see how such a construction can be given to them in view of the well established rule that where a party is charged with a crime, or conduct involving moral turpitude, his language and conduct are to receive a construction consistent with his innocence, if fairly susceptible of such construction. But were it conceded that they tend to show an adulterous disposition on the part of Clarkston, they are still inadmissible. The court in discussing this subject in Pond v. Pond, supra, which was a libel for divorce, says: "That, in an indictment for adultery, or in proceedings similar to the one before us, evidence is admissible of improper familiarity other than those alleged between the parties is settled. So, evidence is admissible of declarations of one party made in the presence of the other which have the same tendency. But such acts or declarations are admissible on account of the participation of the party therein, or presumable assent thereto. To allow one to be affected by proof of the adulterous disposition of another, might expose an innocent party to evidence which would be most dangerous in a trial, while it is conceded that, as affecting such party, it would be entirely immaterial, unless participation in it were proved."

2. In her defence to the charge of adultery, the libellee was allowed to introduce evidence tending to prove intolerable severity and refusal to support on the part of the libellant. To the admission of this testimony, the libellant interposed the objection that intolerable severity and refusal to support on the part of the husband are no defence to the charge of adultery on the part of the wife.

By our statute, adultery, intolerable severity and refusal to support, are each a cause for divorce from the bond of matrimony. They are of the same class and degree so far as furnishing a complete cause for divorce. The statute makes no distinction as to the moral quality of the act which it declares to be a ground for severing the marriage ties. All grounds for divorce in this state are of the same nature, viz: statutory causes.

The doctrine of recrimination in divorce cases rests upon the principle that a person shall not be permitted to complain of a breach of a contract which he has himself violated, or of an injury, when he is open to a charge of the same nature; that he who has violated his marriage vow should be deprived of his remedy of divorce, although his wife is unfaithful. From this it logically follows that proof of any statutory cause for divorce, uncondoned, is a complete defence in a case of this kind, and we so hold. This seems to be consonant with reason and sound public policy. This view has been adopted in Massachusetts. Hall v. Hall, 86 Mass. 39. Handy v. Handy,124 Mass. 394. In New Jersey, the court came to the same conclusion, although the case turned on another question. Adams v. Adams,17 N.J.Eq. 324, (2 C. E. Green.) Under the practice in the English Ecclesiastical Courts, cruelty could not be pleaded in bar to the charge of adultery, but under the Divorce Act, the English Court seems to be inclined to recede from this rule and to adopt the contrary. Lempriere v. Lempriere, L. R., 1 P. & D. 569.

The libellee brought her libel against the libellant for a divorce on the ground of intolerable severity and refusal to support, and after full hearing, the same was dismissed at the April term, 1883, of the Chittenden County Court. In support of her defence on the ground of refusal to support and...