LEGAL RESEARCH

GROUP 1

Tompkins v. Tompkins Mildred Tompkins, petitioner, v. Howard Tompkins, defendant. 92 N.J. Eq.
113 New Jersey Court of Chancery Decided August 15 1920 Messrs. Riker & Riker (Mr. Theodore
McO. Marsh), for the petitioner. Mr. William, L. Brunyate, for the defendant. -- Tompkins v.
Tompkins, 92 N.J. Eq. 113, 113 (1920)

1. Full text

On bill, &c. 1. If a wife be a virgin and apt after three years’ cohabitation, the husband will
be presumed to be impotent, and the burden will be upon him to overcome the
presumption by proof that he is not at fault, in an action by the wife to annul the
marriage, such rule being the essence of the “doctrine of triennial cohabitation.” 2. In the
present cause—SelU, that such presumption is not overcome although physicians
testified that the husband appeared to be normal and the husband testified that he
simply forbore sexual intercourse because it was painful to the wife. 3. A three years’
cohabitation is not essential to show a husband’s impotency, where it may be proved
before, although a three years’ trial is required to raise the presumption of impotency.
This petition is for annulment of marriage on the ground of incurable impotency. The
couple, young persons, have cohabited for five 3^ears and the wife is still a virgin. She is
physically and mentally normal and capable of copulating. Her virginity and aptness ate
established beyond question by three physicians who examined her recently. She
testified that her husband never tried to function; that he made no effort at penetration,
and that the extent of his performance was to lie upon her, with parts limp between her
thighs, and agitate. He vigorously protested his virility1-, but admitted the non-
consummation of the marriage, and also that he sought gratification in external attrition,
as his wife, described, because, as he says, his efforts at sexual intercourse were painful
and distressing to her. He submitted to an examination by one of his wife’s physicians,
who testified that he was structurally a male, normal in the parts and to all appearances
capable of coition. In build, carriage, voice and deportment, as I observed him in court,
he appeared to be up to the standard. If there is genital impairment it is latent and
scientifically undiscoverable; or the lapse may be due to a. psychosis, well recognized by
the medical science, and discussed in some of the divorce 'cases in England—a mental
condition rendering him physically impotent as to his wife, though potent as to all other
women. Were it necessary for the judgment to pronounce the cause of impotencjr, I
would not be unwilling to ascribe the impasse between this couple to this peculiar
phenomenon. In N-r v. M-e, 2 Rob. Ecc. 625, Dr. Lushington annulled a marriage on the
report of inspectors that the husband was impotent as regards his wife, and held, in
effect, that the law was not concerned further than this, observing that impotency quoad
lime was as prejudicial to the wife as universal impotency. In approaching.a decision of
the issue raised by the pleadings —the impotency of the husband, which is bitterly
controverted by sharply conflicting and recriminating testimony—I shall apply the rule of
the English courts taken from the civil law as modified by Justinian, called the Doctrine of
Triennial Cohabitation. The essence of that doctrine is, that if the wife be a virgin and apt
after three years’ cohabitation, the husband will be presumed to be impotent, and the
burden will be upon him to overcome the presumption by proof that he is not at fault. It
is applied as a hard and. fast rule in England. Lewis v. Hayward, 35 L. J. (N. S.) Prob., M. &
D. 105; G— v. M—, 10 App. Cas. 171; C- v. C— 29 L. J. (N. 8.) 81; S— v. A—, 3 Prob. & Div,
72; F— v. P—, 75 L. T. 192; Marshall v. Hamilton, 3 Swab. & T. 517; G— v. G—, L. R. 2
Prob. & Div. 287; F— v. F—, 34 L. J. (N. S.) Prob. & M. 66; Welde v. Welde, 2 Lee Ecc. 580;
Countess of Essex Cases, 2 How. St. Tr. 786; Sparrow v. Harrison, 3 Curt. Ecc. 16;
Anonymous, 2 Rob. Ecc. 625; S— v. E—, 3 Swab. & T. 240; G— v. S—, 1 Spinks’ Ecc. 389;
A— v. B—, 1 Spinks’ Ecc. 12. Mr. Bishop’ devotes a subchapter to the rule. 2 Bish. M., D.
& S. 496 ' I do not find countenance given to the doctrine in any of the reported cases in
this country, but I can conceive no good reason why it should not be introduced into our
jurisprudence as a rule of law in the decision of these vexed questions of fact, to which,
usually, the parties alone bear witness, each blaming the other. The doctrine is logical
and sound in principle and helpful and convenient in the p>roper administration of
justice. It appeals to one’s sense of justice, for it would seem but fair that after three
years’ probation a husband ought to he made to account for his dereliction, to his
disappointed and complaining spouse. The period is none too drort. Whatever may have
been the cause in the past for not giving expression to the rule (perhaps, it was due to an
early impression- of the bench and bar) that the court of chancery was without inherent
jurisdiction to annul a marriage for impotency. notwithstanding the obviousness of the
fraud, because its English prototype had not exercised it—a view voiced in Anonymous,
24 N. J. Eq. 19. In later cases there have been annulments for various kinds of fraud,
some less serious in their consequences than impotency. Carris v. Carris, 24 N. J. Eq. 516;
Crane v. Crane, 62 N. J. Eq. 21; Davis v. Davis, 90 N. J. Eq. 158; Bohner v. Edsall, 90 N. J.
Eq. 299; Ysern v. Horter, 91 N. J. Eq. 189. There is no valid reason for not adopting it as a
part of our common law, since the legislature has added to the domestic relation
jurisdiction of the court of chancery incurable impotency as a cause for annulment. While
novel, and an innovation in our practice, there is no reason why the rule should not have
a place in our judicial system, there to subserwe the administration of the law as it has
for ages under a system which we inherited. The burden, then, being shifted to the
husband to excuse or justify the plight of his wife, the question comes to one of belief in
his story of forbearance for five years, ryider most trying circumstances, simply because
sexual intercourse was painful and distressing to her I have misgivings. Such solicitude of
a groom is noble, of a husband, heroic.. Few have the fortitude to resist the temptations
of the honeymoon. But human endurance has its limitations. When nature demands its
due youth is prodigal in the payment. Men are still cavemen in the pleasures of the bed.
The sex may be more' temperate, but none the less passionate, and heedless of the
penalty. They do not shirk the initiation nor shrink from the-consequences. The
husband’s plea' does not inspire confidence. Common experience discredits it. And if, in
fact, he had the physical power, and refrained from sexual intercourse during the five
years he occupied the same bed with his wife, purely out of sympatl^ for her feelings, lie
deserves to be doubted for not having asserted his rights, even though she balked. The
presumption of impotency has not been overcome and a decree of nullity will be advised.
Note.—Mr. Biddle says: “The rule as to a three years’ cohabitation being required before
suit brought was retained in England down to recent times in case of frigidity but it has
now been laid aside, the court requiring only a sufficient cohabitation to establish the
fact.” Bid. N. J. Div. Pr. (2d ed.) 56. This observation is inaccurate and confusing. The rule
is intact in its entirety, and its requirement of a three years’ trial to raise the presumption
of impotency has not been dispensed with, and a cohabitation of less duration has not
been accepted in lieu “to establish the fact” of impotency. Mr. Biddle would have been
moré nearly .correct had he said, that since the change in the law of evidence admitting
the testimony of the wife the courts have been able to find impotency as a fact, and that,
therefore, the rule was inapplicable in most eases where theretofore it had to be
resorted to for want of actual proof. In this sense only has the rule been laid aside; not
really laid aside but kept within its legal sphere of operation. A three years’ trial was
never essential where the husband’s incapacity could be proved before. This was pointed
out by Wilde, J., in F. v. G., 4 Swab. & T. 86 (at p. 94), where he said of the rule: “This rule
only applies when the impotence is left to be presumed from continued non-
consummation, for, where the impotence is clearly proved aliunde, the court has never
resorted to it.” And as was held in G. v. M., supra: “Every case need not be fortified with
the presumption; for, although no presumption can be raised from the absence of
consummation within a less period than three years, yet positive evidence may be given
from which the same inference of inability may be drawn.” The principle of presumption
has not been departed from, and where there is no consummation after three- years’
probation the application of the rule is imperative. This was declared to be the settled
law in Lewis v. Hayward (1866), supra. In that case the couple cohabited fourteen years
without result. Each was apparently physically capable and laid the deficiency against the
other. The divorce court refused a decree because the wife’s proof failed to show that
the husband was responsible. The house of lords held the rule of presumption to be in
full vigor and reversed. In G. v. M. (1885), supra, a Scotch case, that august tribunal again
referred to the rule with approval, but pointed out that three years’ cohabitation was not
sine qua non to a decree of annulment nor a bar to the establishment of impotency by
competent evidence short of a three years’ cohabitation. There are but two nullity cases
for the husband’s impotency reported in the English' divorce reports from that case to
date and they do not involve the rule. In B. v. B. (1901), Prob. 39, the husband refused to
 occupy the bed with his wife, and declined to submit himself to a physical examination.
The court held it was entitled to draw the inference that there was an impediment on the
authority of F. v. P., supra. In G. v. G. (1912), Prob. 173, the petition was by the husband
for his wife’s frigidity. She denied and cross-petitioned for his impotency. The court was
satisfied from the proofs that the marriage had not been and could not be consummated
and pronounced judgment on the petition of both, as Bargrave Deane, J., said, “Without
putting the slur of impotency on either.” The other cases of nullity reported (W. v. W.
(1905), Prob. 231; W. v. W. (1912), Prob. 78, and Napier v. Napier (1915) Prob. 184) were
for the wife’s frigidity, and naturally the rule was not involved. The court inferred
incapacity as a fact upon proof of the wife’s refusal of access and her refusal to submit to
inspection, and, in one instance, upon her admission that she was “no good.” In
Dickinson v. Dickinson (1913), Prob. 198, Evans, Pr., declined to infer incapacity in the
wife based upon her refusal of intercourse, but he granted a decree based on the refusal.
The court of appeal, in Napier v. Napier, supra, disapproved the doctrine on the ground
that a refusal to consummate was not a cause within the Divorce act. -- Tompkins v.
Tompkins, 92 N.J. Eq. 113, 114-18 (1920)

2.FACTS
Facts : A wife sued her husband for annulment of the marriage on the ground of impotency. The
couple, young persons, had lived together for five years, and the wife was still a virgin. The wife
testified that the husband is impotent, while the man claimed that they had no sexual
intercourse because this was painful and distressing to the wife.

3.Issues: Whether or not the marriage is annulled on the ground of Impotency

4.Held : Under the doctrine of triennial cohabitation, the husband in this case is presumed to
be impotent. The claim of the husband that the wife did not want carnal intercourse is hard to
believe. Such solicitation of a groom is noble; of a husband, heroic. Men are still cavemen of in
the pleasures of the bed. The husband’s plea does not inspire confidence. Common experience
discredits it. And in fact he had the physical power and refrained from sexual intercourse during
the five years he occupied the same bed with his wife, purely out of sympathy for her feelings,
he deserves to be doubted for not having asserted his rights, eventhough she balked. The
presumption of impotency has not overcome, and the decree of annulment will be granted.
5. JURISPRUDENCE CITED

 Avery v. Avery, 148 Cal. 239 [82 P. 967]; Andrews v. Andrews, supra.
 Gelfand v. Gelfand, 136 Cal. App. 448 [29 P.2d 271] (p. 455)
 Ungemach v. Ungemach, 61 Cal. App. 2d 29
 Carris v. Carris, 24 N. J. Eq. 516; Crane v. Crane, 62 N. J. Eq. 21; Davis v. Davis, 90 N. J. Eq.
158; Bohner v. Edsall, 90 N. J. Eq. 299; Ysern v. Horter, 91 N. J. Eq. 189.
 Napier v. Napier (1915) Prob. 184)
 England. Lewis v. Hayward, 35 L. J. (N. S.) Prob., M. & D. 105; G— v. M—, 10 App. Cas.
171; C- v. C— 29 L. J. (N. 8.) 81; S— v. A—, 3 Prob. & Div, 72; F— v. P—, 75 L. T. 192;
Marshall v. Hamilton, 3 Swab. & T. 517; G— v. G—, L. R. 2 Prob. & Div. 287; F— v. F—, 34
L. J. (N. S.) Prob. & M. 66; Welde v. Welde, 2 Lee Ecc. 580; Countess of Essex Cases, 2
How. St. Tr. 786; Sparrow v. Harrison, 3 Curt. Ecc. 16; Anonymous, 2 Rob. Ecc. 625; S— v.
E—, 3 Swab. & T. 240; G— v. S—, 1 Spinks’ Ecc. 389; A— v. B—, 1 Spinks’ Ecc. 12. --
Tompkins v. Tompkins, 92 N.J. Eq. 113, 114-15 (1920)
6. DID STARE DECISIS APPLIED
Yes.
7.Provisions of Law
1. Doctrine of Triennial Cohabitation
Is a rule of the English Court taken from Civil Law that if the wife be a virgin and apt
after three years’ cohabitation, the husband will be presumed to be impotent, and
the burden will be upon him to overcome the presumption by proof that he is not at
fault.

8.Primary Authorities

 Avery v. Avery, 148 Cal. 239 [82 P. 967]; Andrews v. Andrews, supra.
 Gelfand v. Gelfand, 136 Cal. App. 448 [29 P.2d 271] (p. 455)
 Ungemach v. Ungemach, 61 Cal. App. 2d 29
 Carris v. Carris, 24 N. J. Eq. 516; Crane v. Crane, 62 N. J. Eq. 21; Davis v. Davis, 90 N. J. Eq.
158; Bohner v. Edsall, 90 N. J. Eq. 299; Ysern v. Horter, 91 N. J. Eq. 189.
 Napier v. Napier (1915) Prob. 184)
 England. Lewis v. Hayward, 35 L. J. (N. S.) Prob., M. & D. 105; G— v. M—, 10 App. Cas.
171; C- v. C— 29 L. J. (N. 8.) 81; S— v. A—, 3 Prob. & Div, 72; F— v. P—, 75 L. T. 192;
Marshall v. Hamilton, 3 Swab. & T. 517; G— v. G—, L. R. 2 Prob. & Div. 287; F— v. F—, 34
L. J. (N. S.) Prob. & M. 66; Welde v. Welde, 2 Lee Ecc. 580; Countess of Essex Cases, 2
How. St. Tr. 786; Sparrow v. Harrison, 3 Curt. Ecc. 16; Anonymous, 2 Rob. Ecc. 625; S— v.
 E—, 3 Swab. & T. 240; G— v. S—, 1 Spinks’ Ecc. 389; A— v. B—, 1 Spinks’ Ecc. 12. --
Tompkins v. Tompkins, 92 N.J. Eq. 113, 114-15 (1920)
9.Secondary Authorities

 Keezer on Marriage and Divorce, pp. 480-481

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