But condonation is always conditional and has for its very basis and consideration the promise, express or implied, that the forgiving party shall, in the future, be, in all respects, treated kindly and restored to conjugal rights. Adams v. Adams, 102 Vt. 318, 323, 148 A. 287; Langdon v. Langdon, 25 Vt. 678, 679, 60 Am. Dec. 296. The last acts in the course of conduct which the court found constituted intolerable severity occurred early in July, 1938. That the libellee's acts at that time violated the promise given with any prior condonation and were sufficient to cancel the same cannot be doubted. It follows that we have for consideration only such condonation as may have occurred subsequent to those acts. From the fall of 1936 to July 12, 1938, the court found no forgiveness or condonation by the libellant of libellee's conduct, except such as is to be inferred or implied as a matter of law from a desire to keep the home together for the benefit of the family and especially the children, and except such as is to be inferred or implied as a matter of law from the regular sexual relations above referred to, terminating on the morning of July 12, 1938.

The legitimacy of the offspring was only an incidental matter in this case and does not affect the rule in cases where the legitimacy of the offspring is the primary question involved. Adams v. Adams, 148 A. 287; 102 Vt. 318; Koffman v. Koffman, supra; Warren v. Warren, supra. It does not appear that there is anything in the evidence submitted from which it could be inferred that the admissions were obtained by connivance, fraud, coercion or collusion, or other improper means.

"Condonation is ordinarily a question of fact, but when, as here, the evidence respecting it is undisputed, and comes from the lips of the party who seeks to avoid its effects, it is a question of law." Adams v. Adams, 102 Vt. 318, 323, 148 A. 287. There can be no doubt as a matter of law that in the instant case the libellant had condoned the former injuries received by her from the libellee up and until the time of whatever injuries, mental or physical, if any, she may have received from the libellee at or about New Year's Day, 1960.

Because of statutory limitations, often at variance with our statutes, and the difference in factual situations involved, we find these of little help in the situation here presented. Defendant chiefly relies upon the following cases: Adams v. Adams (Vt. 1930) 148 A. 287; Harward v. Harward, (Md. 1938) 196 A. 318; Admire v. Admire, (N.Y. 1943) 42 N.Y.S.2d 755. In the Adams case the wife brought an action for divorce on the grounds of cruelty and desertion.

The testimony of the libellant tending to show that she submitted to the intercourse in question through fear, supported as it is by other evidence in the case of assaults and threats showing warrant for such fear on her part, together with the evidence tending to show that she was afraid to leave Belville at the times of intercourse, fully justified the trial court in failing to find condonation. We have said that condonation is ordinarily a question of fact but when the evidence respecting it is undisputed it is a question of law. Davidson v. Davidson, 111 Vt. 68, 74, 10 A.2d 197; Adams v. Adams, 102 Vt. 318, 323, 148 A 287. In those cases the undisputed evidence showed that the acts of intercourse were voluntarily entered into by the respective libellants and we held that there was condonation as a matter of law.

In the circumstances, these acts present no sufficient legal grounds for the denial. Carr v. Carr, 100 Vt. 65, 135 A. 5; Adams v. Adams, 102 Vt. 318, 148 A. 287. The essential facts constituting "intolerable severity" have been definitely stated, and often repeated, in our cases. Mathewson v. Mathewson, 81 Vt. 173, 69 A. 646, 18 L.R.A. (N.S.) 300; Whitehead v. Whitehead, 84 Vt. 321, 79 A. 516; Carr v. Carr, 100 Vt. 65, 135 A. 5, and a restatement of them here is unnecessary.

In Russell v. Russell, 13 British Ruling Cases, 246 (1924), the House of Lords, by a three to two decision, applied the rule in a suit for divorce on the ground of adultery, holding that evidence of non-access by the husband was inadmissible to prove the alleged act of adultery, since its "object or possible result" was the bastardizing of a child of the marriage. The rule was likewise applied in suits for divorce in Timmann v. Timmann, 1913, Sup.S.T., 142 N.Y.S. 298 and in Corson v. Corson, 1863, 44 N.H. 587, and recognized as the rule at common law, though not applied, in a suit for divorce in Adams v. Adams, 1930, 102 Vt. 318, 148 A. 287. It was rejected in a suit for divorce in Hilton v. Hilton, 54 Cal.App. 142, 201 P. 337.