Mercer v. Mercer's Adm'r

• Decision Date: 28 February 1888
• Citation: 7 S.W. 401,87 Ky. 30
• Parties: MERCER et al. v. MERCER'S ADM'R.
• Court: Kentucky Court of Appeals

7 S.W. 401

87 Ky. 30

MERCER et al. v. MERCER'S ADM'R.

Court of Appeals of Kentucky.

February 28, 1888

Appeal from circuit court, Marion county.

Harrison & Belden, for appellants.

Wm Lindsay and Russell & Avritt, for appellee.

HOLT J.

The appellants, who are bastards, sue in assumpsit by their mother as their next friend, to recover upon an alleged parol promise made to her for their benefit by their deceased putative father, Felix Mercer. The petition avers that he, in consideration of his relationship, and the natural moral duty resting upon him to support and educate them, promised to give and secure to them therefor his entire estate, less $10,000 to be given to another illegitimate child. No other consideration is stated. At common law the father was not bound to support his bastard child. He was said to be filius nullius; and while, in the absence of a statute, the father is under no legal obligation to support him, and it can be enforced only through the remedy thus provided, yet a just sympathy for the innocent and helpless and a proper recognition of right, has led to some advance of legal right and remedy in his favor. Thus the weight of English authority now is that a promise by the putative father to pay the mother a certain sum, in consideration that she will support and maintain their child, is enforceable. Jennings v. Brown, 9 Mees. & W 496; Hicks v. Gregory, 8 C. B 378. Also, if his promise be in consideration that the mother will abstain from affiliation or bastardy proceedings against him, and in consequence thereof she suffers the time within which they may be had to expire, it will be binding upon him. Linnegar v. Hodd, 5 C. B. 437. In this state it was held by this court, in the early case of Burgen v. Straughan, 7 J. J. Marsh, 583, that a contract by the putative father to pay the mother a certain sum for the support of their child, provided she would not proceed against him under the bastardy act, was not immoral or inconsistent with the policy of the law, but binding and enforceable. She has a right to compel him to assist in supporting the child. It is a civil right, supported by a civil remedy. If, to save both from exposure and disgrace, and to induce her to waive her right to compel him to do right, he promises to contribute for the support of their innocent and helpless offspring, there is no compounding of an offense or other violation of the rights of society. In such a case she waives a right, and it is a sufficient consideration to support the contract. Indeed, such a course is likely to redound often to the public benefit. The mother will often prefer to suffer in poverty and permit her child to do so, rather than expose her shame to the gaze of the public eye by a court trial; and then the child, in the absence of a contract by the father to support it, based upon the waiver of legal proceedings by the mother for that purpose, and which is a detriment to her, and therefore a valuable consideration, will, as a pauper,...