Enders v. Enders

• Decision Date: 01 October 1894
• Docket Number: 26
• Citation: 164 Pa. 266,30 A. 129
• Parties: Annie Enders, Appellant, v. W. M. Enders et al., Exrs. of Wm. Enders
• Court: Pennsylvania Supreme Court

30 A. 129

Annie Enders, Appellant, v. W. M. Enders et al., Exrs. of Wm. Enders

164 Pa. 266

No. 26

Supreme Court of Pennsylvania

October 1, 1894

Argued May 28, 1894

Appeal, No. 26, May T., 1893, by plaintiff, from judgment of C.P. Dauphin Co., March T., 1892, No. 240, for defendants non obstante veredicto. Reversed.

Assumpsit to recover consideration money for surrender of custody of child. Before SIMONTON, P.J.

The court reserved the following question of law:

"If a verdict be found in favor of the plaintiff, it will be subject to the reserved points on the following facts 'Old Mr. Enders, the grandfather, said that he came to fetch the child, and my sister (its mother) did not want to part with the child, who was about three years old; then he promised her if she would let him have the child, he would give her twenty thousand dollars and the child ten thousand dollars when he should come of age, and at the same time he would give him a good education of some college; and if she would stay single until he was of that age, he would sooner give her more; and he said that she could come to see the child whenever she would like to, and the same time that she could have the boy occasionally for a certain length of time but that the home should be with him. She said she would sooner keep the boy than to have the money, but by consulting a little with her they compromised that he should take the boy along on those terms.'

"On those facts these questions of law are reserved: (1) Whether the contract set forth in the facts is contrary to public policy. (2) Whether the facts show any consideration for the promise.

"The further question is also reserved whether there are any facts in this case that ought to go to the jury upon which they can legally find in favor of the plaintiff.

"These questions are reserved by consent of counsel on both sides."

Verdict for plaintiff for $20,000. The court subsequently entered judgment for defendants non obstante veredicto.

Error assigned was above order, quoting it.

As we see nothing in this contract which should prevent its enforcement, the judgment of the court below is reversed, and judgment is now entered on the verdict for plaintiff.

Robert Snodgrass, S. J. McCarrell and Ermentrout & Ruhl with him, for appellant. -- The contract involved in this case is not against public policy. "By public policy is intended that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law, or public policy in relation to the administration of the law:" Greenhood, Pub. Policy.

The welfare of the child is the prime consideration in questions of this kind. The right of transfer of the custody of infants has long been recognized by legislative bodies: St. 36 Vict. § 2, ch. 12.

Plaintiff was entitled to the control of her child and to receive his earnings: Act of May 4, 1855, P.L. 431; Brotzman v. Bunnell, 5 Whart. 128.

The consideration for the contract was sufficient: Neal's Exrs. v. Gilmore, 79 Pa. 427.

Family compacts may be sustained on grounds which would not be satisfactory if the transaction occurred between strangers: Burkholder's Ap., 105 Pa. 31; Wyant v. Lesher, 23 Pa. 338; Geist v. Geist, 2 Pa. 441; Walker v. Walker, 67 Pa. 185; Gilkeson v. Gilkeson, 1 Phila. 194.

In Van Dyne v. Vreeland, 11 N.J. Eq. 371, 12 N.J. Eq. 142, the father of an infant had made an agreement with an uncle, at the uncle's request, that he should take the child to adopt him as his own and agreed that he should treat him as his own son, and that property that he had should be given to the child so that it would belong to him at the death of the uncle and his wife. The uncle took the child, had him baptized; the child assumed the surname of his uncle, and lived with him for twenty-five years. It was held that the child might maintain a bill upon the agreement after performance on his part.

In Farnum v. Bartlett, 52 Maine, 570, a bond was given for the support of a married woman by a person other than her husband, and it was held that it could not be considered invalid as being in contravention of good morals and tending to impair the obligation of a marriage covenant, unless it appear that it had a tendency to induce a separation between the husband and the wife.

In Bently v. Terry, 59 Ga. 555, a voluntary contract by a father under which he released his parental power over his child to another who agreed to care for the child, nurse and support it comfortably, was held to be valid.

Casper S. Bigler and Frederick M. Ott, for appellees. -- A contract by a parent, by which he releases his parental rights to the custody of his children, is void, except when the policy of the state is favorable to such transfers, and to the adoption of children by strangers: Greenhood on Public Policy, 306, 493.

Any contract which contemplates that a parent shall be deprived of the custody of children to which he is entitled is void: Scarritt Case, 76 Mo. 565; Chapsky v. Wood, 26 Kan. 650, 40 Am. R. 321; State v. Baldwin, 5 N.J. Eq. 454, 45 Am. Dec. 399; State v. Clover, 16 N.J.L. 419; People v. Mercein, 3 Hill (N.Y.) 408, 38 Am. Dec. 644; Westmeath v. Westmeath, in note to Lyons v. Blenkin, 1 Jacob (English) 251; Hamilton v. Hector, L.R. 6 Ch. Ap. 705; Lewis's Case, 88 N.C. 31; Vansittart v. Vansittart, 2 De G. & J. 259; Scarritt's Case, 76 Mo. 565, 45 Am. R. 768; Roberts v. Hall, 1 Ontario, 388; Chambers on Infants, 59; Schouler's Dom. Rel. 343; 1 Add. Cont. 253; 17 A. & E. Ency. L. 373; Pollock's Contracts, 304; Johnson v. Terry, 34 Conn. 259; Torrington v. Norwich, 21 Conn. 543.

It is the tendency of the class of contracts to which an agreement belongs which determines its validity, and not the fact whether, in the particular case, it had any prejudicial effect: Holloday v. Patterson, 5 Oregon, 177; Richardson v. Crandall, 48 N.Y. 348; Webb v. Dietrich, 7 W. & S. 401; Chorpenning's Ap., 32 Pa. 315; Com. v. Moore, 1 Ash. 123; Respublica v. Keppele, 2 Dal. 197; Brown v. Barry, 3 Dal. 365; Greenhood on Public Policy, Rule 6, p. 5.

The welfare of the child is the principal object about which the courts are concerned: Com. v. Addicks, 5 Bin. 520; Com. v. Gilkeson, 5 Clark, 30; Com. v. Nutt, 1 P. A. Browne, 143; Dumain v. Gwynne, 10 Allen, 270.

Whatever right a father has to the custody of his infant child depends upon and grows out of the duties which he owes to that child; and the law only recognizes such right as a means of enforcing such obligation: Com. v. Gilkeson, 5 Clark, 30; Dumain v. Gwynne, 10 Allen, 270; Heinmann's Ap., 96 Pa. 112.

A mother is not bound at law to maintain her minor child; and is therefore not entitled to the correlative right of service: Ry. v. Stutler, 54 Pa. 375; Twp. v. Pittsburg Guardians of the Poor, 62 Pa. 472.

The rule of law applicable in such cases as the present where a claim is made against the estate of a dead man, requires that the testimony in support of the claim must be clear, distinct, positive and specific: Heffner's Est., 134 Pa. 436; Thompson's Ap., 13 A. R. 952; Graham v. Graham, 34 Pa. 475; Harbold v. Kuntz, 16 Pa. 210.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

About the year 1868, Annie Enders, the plaintiff, was married to Emanuel Enders, son of William Enders. Two years after their marriage, a son, William J. Enders, was born to them. At that time they lived at Cornwall, Lebanon county. Two years after the birth of the son, on account of her husband's ill treatment and neglect to support her, the wife left him, and, with her child, took up her home with her father at Berkley, in Berks county. Some months after leaving her husband, and while living with her father, on November 7, 1872, William Enders, the father of her husband, visited her. Her boy was his only grandson, and he was desirous that he should have a better education than his mother could afford him. The subject of the boy's future was discussed between her and both grandfathers, and others of the wife's family, at this visit. The grandfather, Enders, proposed to her, if she would permit him to take her son and educate him, the boy to make his home with him until he was of age, she to have the privilege of visiting her child when she desired, and to have him at her home whenever convenient, he would give the mother $20,000, and the boy $10,000 when he came of age. The mother consented, and thereafter the home of the boy was with his grandfather, the mother and son visiting each other frequently. About November 25, 1891, soon after the boy came of age, the grandfather died, but he had not paid, nor had he made any provision, by will or otherwise, for payment of the $20,000 to the mother, Annie Enders. Thereupon she brought suit against his executors. At the trial, the defendants contended: 1. That the contract, even if proven, was void because against public policy. 2. There was no sufficient consideration to support the alleged promise. The court submitted the testimony, as to whether the contract was made as averred by the plaintiff, to the jury, who found for the plaintiff; at the same time reserved the questions of law raised by defendants, and afterwards entered judgment in favor of defendants, non obstante veredicto. From that judgment, plaintiff brings her appeal.

The court having decided the consideration was sufficient, the sole question here is, whether the contract was against public policy, and therefore void. The learned judge of the court below was of opinion that it was, and refers to many cases, holding that the parent cannot divest himself of the custody of his child by any...