Davis' Estate v. Herrington

• Decision Date: 01 March 1890
• Citation: 13 S.W. 215
• Parties: DAVIS' ESTATE <I>v.</I> HERRINGTON.
• Court: Arkansas Supreme Court

13 S.W. 215

DAVIS' ESTATEv.

HERRINGTON.

Supreme Court of Arkansas.

March 1, 1890.

Appeal from circuit court, Jefferson county; J. A. WILLIAMS, Judge.

Action by Hester Herrington against the estate of R. G. Davis on the following claim: "For taking care of Willie Davis, a minor child, by contract, for the period of five years, commencing 1st day of January, 1881, and ending the 15th day of January, 1887, at $3 per month, $180." She also charged interest annually for the years 1881-85, at the rate of 6 per cent., making the total amount of her claim $212.58. The administrator rejected her claim, but, on its presentation to the probate court, it was allowed. The administrator appealed to the circuit court. At the trial, it was proved that the child was the illegitimate child of the claimant and the deceased, R. G. Davis; that, after the birth of the child in 1881, deceased recognized it as his; that he contracted with claimant to take care of it, and promised to pay her for so doing; and that the support of the child was worth three dollars per month. There was a verdict in claimant's favor, and the administrator appeals.

Harrison & Harrison, for appellant. Met. L. Jones, for appellee.

PER CURIAM.

By the common law, the mother, and not the putative father, of an illegitimate child, is bound to maintain it. The father's promise to the mother to pay her for the maintenance is a promise to pay her for doing what she is already legally bound to do, and is not enforceable, because not supported by a consideration. One is not legally bound by a promise to fulfill a moral obligation, where no legal obligation or liability for the thing promised ever existed. But the statute in this state confers upon the mother of a bastard child the right to compel the father to contribute to the support of their offspring by affiliating it upon him. Mansf. Dig. § 445 et seq. His promise to pay her for the maintenance is therefore based not only upon a moral obligation, but also a legal liability which she may cast upon him, and that fact furnishes a consideration for his promise. Smith v. Roche, 6 C. B. (N. S.) 223; Hargroves v. Freeman, 12 Ga. 342; Maxwell v. Campbell, 8 Ohio St. 265. The promise of the appellant's intestate was therefore based upon an adequate consideration, and was enforceable against his estate.

But the statement of the appellee's claim shows that it was due in annual installments; and, as the promise was not in writing, the remedy upon the...