Brewer v. Cary

Decision Date19 April 1910
Citation127 S.W. 685,148 Mo. App. 193
PartiesBREWER v. CARY.
CourtMissouri Court of Appeals

Const. art. 6, § 34 (Ann. St. 1906, p. 238), provides for the establishment of probate courts which shall have jurisdiction over the appointment of guardians and curators of minors. Rev. St. 1899, §§ 3480-3482 (Ann. St. 1906, pp. 1991, 1992), provides that, if a living parent be adjudged unfit as a guardian for his children, the probate court may appoint a guardian, and that the competency of a parent shall be determined by the probate court. Section 3494 (page 1995) provides that a minor shall not be committed to the guardianship of a person of religious persuasion different from that of the parents, or of the surviving parent of the minor. Held, that the circuit court in equity had no jurisdiction to remove a father as natural guardian because of a breach of an antenuptial contract providing that the offspring would be brought up in the Catholic Faith even if the wife died, since the probate court had original exclusive jurisdiction in all matters of guardianship of children, and any question of religious difference must, under section 3494, be determined in the probate court.

2. INFANTS (§ 78) — NEXT FRIEND — NECESSITY OF APPOINTMENT — REMOVAL OF GUARDIAN.

Rev. St. 1899, § 550 (Ann. St. 1906, p. 587), provides that suits by infants may be prosecuted either by the guardian or by a next friend. Section 551 (page 588) provides that the appointment of a next friend for an infant shall be made by the court in which the suit is intended to be brought, and section 553 (page 588) provides that, if the infant be under 14, the appointment of a next friend may be made on a like petition of a relative or friend of the infant. An antenuptial contract provided that the father would bring up the children in the Catholic Faith even if the wife dies. Held, on death of the wife, her father, who was not appointed as a next friend under the statutes, had no standing to seek to compel performance of the contract in behalf of infant children under 14 years of age, since the statute provided the only way in which an infant could sue.

3. EXECUTORS AND ADMINISTRATORS (§ 49) — RIGHTS PASSING TO REPRESENTATIVE.

Under an antenuptial contract providing that the wife would have the right to bring up the offspring in the Catholic Faith even if she dies, the right of the wife is not a property right that would pass to and be enforceable by the personal representative of the wife.

4. INFANTS (§ 80) — CAPACITY TO SUE — WAIVER OF OBJECTIONS.

The objection that a plaintiff, suing as next friend of infants, was not appointed by the court as the statute provided, is not waived by not making a special appearance, where the petition was demurred to on that ground.

5. SPECIFIC PERFORMANCE (§ 82) — CONTRACTS — PROPERTY RIGHTS — RELIGIOUS INSTRUCTIONS.

An antenuptial contract, providing that the children should be brought up in the Catholic Faith even if the wife should die, cannot, after her death, be specifically enforced, since no property rights are involved.

6. PARENT AND CHILD (§ 3) — CONTROL OF CHILD — RELIGIOUS INSTRUCTION.

An antenuptial contract, providing that the offspring should be brought up in the Catholic Faith even if the wife should die, is not, after her death, an enforceable contract against the husband, since public policy forbids the permanent transfer of the natural rights of a parent.

7. SPECIFIC PERFORMANCE (§ 82) — MORAL DUTY — CONTRACTS FOR RELIGIOUS INSTRUCTION.

An antenuptial contract, providing that an offspring should be brought up in the Catholic Faith even if the wife should die, cannot be specifically enforced, since only a moral duty is involved, which is not ground of equitable jurisdiction.

8. PARENT AND CHILD (§ 3) — CUSTODY OF CHILD — WELFARE — RELIGIOUS TRAINING.

An antenuptial contract, providing that an offspring should be brought up in the Catholic Faith even if the wife should die, is not enforceable in equity on the ground that the court would look to the welfare of the child, since that would result in determining between religions, which the court will not do.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Suit by Benjamin R. Brewer against Wade Cary. From a judgment for defendant, complainant appeals. Affirmed.

The plaintiff in this case has brought this as a suit in equity, praying the circuit court, in which court it was instituted, "to make its order of record" requiring and directing the defendant to permit an infant some three months old to be baptized under the forms of the Roman Catholic Church, and to allow an older child, between three and four years of age, to go to that church and to attend services thereat and to be instructed in the faith of its mother, to the end that the defendant be compelled to keep and perform an agreement entered into between defendant and his former wife at the time of contracting the marriage between them. The agreement, as set out in the petition, is as follows: "I, the undersigned, Wade Cary, not a member of the Roman Catholic Church, wishing to contract marriage with Miss Gertrude A. Brewer, a member of the Roman Catholic Church, propose to do so with the understanding that the marriage bond thus contracted is indissoluble except by death; and I promise that she shall be permitted the free exercise of religion according to the Roman Catholic Faith, and that all children of either sex, born of this marriage, shall be baptized and educated in the faith and according to the teaching of the Roman Catholic Church, even if she should happen to be taken away by death."

It is averred in the petition that this agreement was voluntarily entered into by defendant, and was made in accordance with and pursuant to the laws of the Roman Catholic Church, and was signed and executed by the defendant, "with full knowledge that the marriage could not take place without that. The agreement was taken and accepted by the parties named therein at the time, and by the minister of the Church, who thereupon performed the marriage rite." It is further set out in the petition that the plaintiff brings this suit in behalf of the infant children who were born of the marriage between the parties to the aforesaid agreement, "as in the capacity of next friend, for them, because they are helpless to sue for themselves and suffer great wrongs at the hands of their guardian, the defendant herein, and they are now without redress or relief; that, the said defendant being the natural guardian of said children, it has become necessary that your petitioner bring this action, on their behalf, moved by motives of bounden duty, and affection, arising out of the relation by blood that petitioner sustains to said children, for whose sole benefit he brings this action, and prays the court, in the exercise of its just powers, to permit him to prosecute this suit, for the reason stated and hereafter to be stated. As well, also, for the reason that petitioner was godfather to one of the children * * * at the time it received the sacrament of baptism, which was also by the consent and at the request of the defendant, and according to the rites of the Catholic Church, and because, by virtue of the rules and usages of the Church, it is now obligatory upon petitioner, as such god-father, so acting as aforesaid, at the instance and request of defendant, to see that the child receives religious instruction in the faith of the Catholic Church, and to use all reasonable and lawful means to that end. For these reasons, and the desire to make secure, as far as he can, the welfare of the children, now, and in the future, it has become, as aforesaid, the duty of this petitioner to institute this action, in order that the defendant shall be required and caused to keep and perform his agreement hereinafter set forth." He further states that he is the grandfather of the children, who are children of his deceased daughter, who was the wife of the defendant; that their mother died June 23, 1908, in the faith of the Roman Catholic Church, and left the two children born of the marriage aforesaid with the defendant; and that both of them are now living and under the control of the defendant in the city of St. Louis. It is then averred in the petition "that the defendant is guilty of unlawful oppression of the children, in his capacity over them, and his treatment of the children violates the agreement hereinafter set forth."

The petitioner further avers that he appeals to the court in its capacity as a court of equity and of conscience, "in behalf and in furtherance of the children's just rights, which are of the highest importance to them, in human affairs; and in order to keep them from sin, evil, and harm, and to prevent the evil that may hereafter come upon them, and be suffered in the future by them, by reason of the failure of the defendant to keep and fulfill his obligation, under the terms of said agreement." The petition contains the further averment that the defendant, for the consideration of entering into the bond of marriage aforesaid, "is now thereby estopped and cannot rightfully exercise the privilege of preventing, at his will, as he is now doing, said children from having the benefits which that agreement was intended to secure to them; that it is a grave wrong, legally and morally, for him to do so, and is great injustice to the children, and is a fraud upon their most sacred rights to deprive them of the benefits of that agreement, which inures to them; that their injury is irreparable; that they are without remedy, save by a court of equity; that defendant without any hardship, or difficulty, or expense to him, could, and can now, fulfill said agreement." The agreement is then set out as before noted.

It is further set out that, by the laws of this state, minor children of the tender...

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15 cases
  • Lynch v. Uhlenhopp
    • United States
    • Iowa Supreme Court
    • 18 Septiembre 1956
    ...contract. 29 Harvard Law Review 485, 492; Zollman, American Church Law, 46-49; Andrews v. Salt, L.R. 8 Ch.App. 622; Brewer v. Cary, 148 Mo.App. 193, 127 S.W. 685-692, inclusive; Boerger v. Boerger, 26 N.J.Supper. 90, 97 A.2d 419, 425, 427. In the latter case, at page 427 of 97 A.2d, it is '......
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    • Missouri Supreme Court
    • 10 Marzo 1947
    ... ... And here again the wishes of the last surviving parent have ... great weight. Voullaire v. Voullaire, 45 Mo. 602; ... Brewer v Cary, 148 Mo.App. 193, 202 et seq., 127 ... S.W. 685, 687 et seq.; Parks v. Cook (Mo. App.), 180 ... S.W.2d 64, 69(6) ... ...
  • In re Krauthoff
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    • 24 Mayo 1915
    ... ... courts hold to be paramount to all others, namely, the ... welfare of the child itself." [ Brewer v. Cary, ... 148 Mo.App. 193, l. c. 207; In re Berenice Scarritt, ... 76 Mo. 565; ... [177 S.W. 1119] ... Brenneman v. Hildebrandt, 137 ... ...
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