Bergen v. Bergen

Breese, J: We do not perceive any objection to the decree rendered in this cause. The charge in the bill of complaint was, repeated acts of adultery by the defendant with his own daughter by a former wife. He was duly served with process, and had every opportunity to deny the charge, but he did not deny it, he admitted it, by suffering a default to be entered. After the bill was taken for confessed, the court heard testimony in support of the charge, from which it appeared to the court that the facts charged were true, and that the defendant had been guilty, before the commencement of the suit, of having carnal connection with his daughter, and had committed adultery with her. The court may have been satisfied by proof of admissions of the defendant. Our statute (Scates’ Comp. 151) does not declare the admissions of a defendant shall not be received as evidence, but only that they shall be subjected to the scrutiny of the court, and if the court is satisfied they were made in sincerity and without fraud or collusion to enable a decree to pass, they are to be received as evidence. Wo must suppose the court subjected all the proof to the proper scrutiny. If admissions were proved, the court must have determined that they were made in good faith and for no sinister purpose. In Ohio,—to the decisions of her courts we have been referred,—there is a statute expressly prohibiting the courts from receiving such admissions as evidence. Brainard v. Brainard, Wright’s Ohio R. 354. It is not necessary that the evidence upon which the court acts should be preserved in the record, yet the record must show that the court heard evidence and found the allegations of the bill to be true. It is sufficient in every such case, if the decree shows it was made upon proofs adduced. Shillinger v. Shillinger, 14 Ill. R. 147; Wheeler v. Wheeler, 18 ib. 89. As to the alimony decreed, and the custody of the children, neither seemed to have been a subject of dispute in the Circuit Court. That part of the decree seems to have passed with the assent of the defendant, and also the manner in which his estate should be distributed. He was in court acting by himself and his counsel, receiving a part of the money and accounting to the receiver for money collected by himself. We have said in the case of Foote v. Foote, post, and such is the current of authorities, the allowance of alimony for the wife is discretionary with the court. Such is our statute, but in addition to alimony the court may allow something for the support and maintenance of the children, this is also a «-matter of judicial discretion, and as there were three infant children in this case, it is to be presumed the court looked to that in decreeing so large a portion of the estate to the complainant. Although it is usual to regard the income of the delinquent husband as the fund out of which alimony is to be decreed, it is by no means universal. A portion of the estate may be decreed. In the case of Burster v. Burster, 5 Pickering, 427, the court went beyond the income of the husband and ordered a sale of the delinquent husband’s estate. In all cases, the court will look to the extent of the delictum. amount of property—rank in life of the parties—the number and age of the children, and as the support of those has devolved upon the complainant, and less than one-half the estate of the husband decreed, and the delictum confessed of the most atrocious character, and the decree, seemingly, with the assent of the defendant, we will not interfere to disturb it, but affirm it, in all its parts. Decree affirmed.