Brown v. Smith

• Decision Date: 23 December 1895
• Citation: 33 A. 466,19 R.I. 319
• Parties: BROWN et ux. v. SMITH.
• Court: Rhode Island Supreme Court

33 A. 466

19 R.I. 319

BROWN et ux.

v. SMITH.

Supreme Court of Rhode Island.

Dec. 23, 1895.

Action by Charles F. Brown and wife against William C. Smith, administrator. Judgment for defendant for costs.

Page & Owen, for plaintiffs.

B. M. Bosworth, for defendant.

TILLINGHAST, J. The agreed statement of facts in this case shows that Rebecca M. Brown, the real plaintiff, was formerly the wife of Daniel Bosworth, late of Warren, deceased, and by him had three children; that, prior to the death of said Bosworth, Mrs. Brown (then Mrs. Bosworth), upon her petition to the supreme court of this state, was divorced from said Daniel Bosworth, and the custody of the said three children of the marriage (they being minors) was awarded to her; that upon the death of said Daniel Bosworth, which occurred about three years after the divorce, the defendant was appointed administrator on his estate, and that after said appointment Mrs. Brown presented to him a claim for the board of said children, against the estate of Daniel Bosworth; that said administrator represented said estate insolvent, and thereupon, pursuant to law, commissioners were duly appointed to receive and examine the claims against said estate, and that said commissioners allowed the claim of Mrs. Brown for the board of said children; that, upon the filling of the report of said commissioners in the court of probate, the administrator, being dissatisfied with the allowance of said claim by the commissioners, gave notice thereof in the office of the clerk of the court of probate, and also to the plaintiffs, an provided by law, whereupon said claim was stricken out of said report by the court of probate; and that the plaintiffs thereupon, in accordance with the provisions of Pub. St. R. I. c. 186, § 15, brought this suit to determine the validity, of the claim of Mrs. Brown against said estate.

The only question presented for our decision, under this state of facts, is: Can a married woman, who has been granted a divorce and the custody of minor children, maintain an action at law against the estate of her deceased husband, for the board of said children? We think this question must be answered in the negative. At the time when said divorce was granted, the supreme court had the authority, under Pub. St. R. I. c. 167, § 23, as the appellate division now has (Judiciary Act, c. 2, § 4), to regulate the custody, and provide for the education, maintenance, and support, of the children of all persons by them divorced; to make all necessary orders and decrees concerning the same, and the same at any time to alter, amend, or annul, for sufficient cause, after notice to the parties interested therein. Sammis v. Medbury, 14 R. I. 214. This statute is presumably based upon the theory that the rights of the parties in a proceeding for divorce, as to the custody and support of the minor children of the marriage, can be best determined in connection with said proceeding, upon a full consideration of the circumstances and situation of the parties, instead of leaving such rights open to further, independent litigation. See Husband v. Husband, 67 Ind. 585; Buckminster v. Buckminster, 38 Vt. 248; Chester v. Chester, 17 Mo. App. 657. Whatever is decreed, therefore, regarding the custody of children, in a divorce proceeding, is conclusive of the rights of the parties until the decree is either modified or annulled. By virtue of the decree in the petition above referred to, said Rebecca M. Brown became entitled to the custody of said minor children, together with the right to their services, and defendant's Intestate was thereby deprived of his common-law right thereto; and, being thus deprived of this right, he became absolved from the correspondent common-law obligation which previously rested upon him to support said children. In other words, the award of the children to the mother carried with it a transfer of parental duties as well as of parental rights. Schouler, Dom. Rel. (3d Ed.) § 237. As said in 2 Bish. Mar. & Div. § 557: "The true legal principle applicable to ca...