Stowers v. Hollis
| Decision Date | 14 January 1886 |
| Citation | 83 Ky. 544,7 Ky.L.Rptr. 549 |
| Parties | Stowers v. Hollis by & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
THOMAS JOYES FOR APPELLANT.
1. The common law does not impose upon a man an obligation to support his bastard child. That obligation depends entirely upon the statute, and to fix the liability arising from this obligation, the statutory requirements must be strictly complied with. The promise of the father must be expressly alleged and proved; also the time at which it is to be fulfilled. The father's liability is not fixed until established by the verdict of a jury. (Bull v. McCrea, 8 B. Mon., 424; Civ. Code. section 131; Gossam v Badgett, 6 Bush, 100, 101; Furilio v. Crowther, 1 Dow. & Ry., 612; Simmons v. Bull, 21 Ala, 503 504; Moncrief v. Eby, 19 Wend., 405; Marlett v Wilson, 30 Ind. 241; Nine v. Starr, 8 Oregon, 49; 1 Parsons on Contracts, 312; Clarke v. McFarland, 5 Dana, 47, 48; Burgen v. Straughan, 7 J. J Marsh., 583; 4 Cruise's Digest, page 119; Gen. Stat., chapter 7, sections 2, 3, 6 and 8; Chandler v. Commonwealth, 4 Met., 70; Britton v. Williams, 6 Munf., 453; Bennett v. Davis, 6 Cowan, 393; Soper v. Fry, 37 Mich. 239; Johnston v. Louisville, 11 Bush, 533.)
2. The mother of a bastard child is incompetent to testify against the father in a suit upon a contract made by him with her for the support of the child, he being dead. (Civil Code, section 606, subsection 2; Alexander's Ex'r v. Alford & Co., 4 Ky. Law Rep., 693; Hardin's Adm'r v. Taylor, 78 Ky. 596; Marvin's Adm'r v. Lambert, 10 Bush, 297; Chenowith v. Fielding, 2 Met., 518; Hobbs v. Russell, 79 Ky. 61.)
3. The support of a bastard child is not a necessary for an infant, and his contract therefor is not binding.
4. An infant is not liable on his express contract for necessaries. His implied contract for necessaries is the only one which the law considers binding.
5. An infant's executory contract is not enforceable. ( Swift v. Bennett, 10 Cushing, 438; Earle v. Peale, 1 Salk., 387; 10 Mod., 67; Darby v. Boucher, 1 Salk., 279; Beeler v. Young, 1 Bibb, 320; Pool v. Pratt, 1 Chipman, 252; Hunt v. Peake, 5 Cowen, 475.)
6. The contract was void. It imposed no obligation on the mother, as it could not have prevented her instituting proceedings at any time to enforce the statutory liability. (Com. v. Davis, 6 Bush, 295; Com. v. Turner, 4 Dana, 513.)
7. The contract for the support of the child should have been in writing, as it was not to be performed within one year. ( Davenport v. Gentry, 9 B. Mon., 427; Goodrich v. Johnson, 66 Ind. 250; Dobson v. Callis, 1 Hurl & Norm., 81; Smith v. Westall, 20 Raymond, 316, 317; Brich v. Earl of Liverpool, 9 B. & C., 392; Sweet v. Lee, 3 Man. & Gr., 452; Hanna v. King, 9 B. Mon., 369; Bull v. McCrae, 8 B. Mon., 423.)
L. N. DEMBITZ FOR APPELLEE.
1. An agreement by the father of a bastard child that he will support the child in consideration that the mother will not prosecute him, is valid.
2. The statute makes no distinction between adults and infants as to the liability for the support of illegitimate offspring. The contract of a minor to pay for the support of his illegitimate child is binding as being for necessaries. (Swift v. Bennett, 10 Cushing, 463; Turner v. Frisby, 1 Strange, 168; Chapple v. Cooper, 13 Mee. & W., 252; Gen. Stat., title " " " " " Bastardy." )
3. A contract to support a child for a given time is not within the statute of frauds, as it may, by the death of the child, be performed in less than a year. (Peters v. Westborough, 19 Pick., 364; Elliott v. Turner, 4 Md. 476; Howard v. Burgen, 4 Dana, 137.)
4. The contract for supporting the child was in favor of the child, not of the mother, and the mother is a competent witness to prove the contract against the father. (Alexander's Adm'r v. Alford, 4 Ky Law Rep., 693.)
5. One who makes a contract for the benefit of another, is a competent witness for the beneficiary against the other party.
JOHN L. SCOTT ON SAME SIDE.
1. The claim of a bastard child upon its father for support is equitable.
2. An agreement by the father of a bastard child to support it, in consideration of an agreement by the mother not to prosecute the father, is valid. This is not affected by the fact that the father is an infant. This is the same under both statute and common law. (Burgen v. Straughan, 7 J. J. Marsh., 583; Commonwealth v. Turner, 4 Dana, 513; Chandler v. Commonwealth, 4 Met., 68.)
3. As the object of bastardy proceedings is the maintenance of the child, all proceedings, agreements or contracts taken or made by the mother, have the same effect as if taken or made by the child. (Schouler v. Commonwealth, Litt. Sel. Cas., 88; Hamilton v. Commonwealth, 3 Mon., 313; Scanlan v. Commonwealth, 6 J. J. Marsh., 585; Chandler v. Commonwealth, 4 Met., 67; Francis v. Commonwealth, 3 Bush, 6.)
4. The mother of a bastard child is a competent witness in a suit upon a contract by the father to support the child, although he be dead when she testifies. She is not interested in the result of the proceeding.
In this equitable action to settle the estate of David Stowers, deceased, the infant appellee, Mary B. Hollis, by her guardian, and as the illegitimate child of the decedent, asserts a claim to a support until she may be able to support herself, or until her death, in case it occurs before the end of that period. She bases her right to it upon an alleged contract for her benefit made soon after her birth, which occurred on April 12, 1879, between the deceased and her mother, by which the alleged father agreed, in consideration that no steps under the bastardy act were taken against him, that he would support the appellee.
In our opinion, the annual allowance until the child might die or become fourteen years old, decreed by the lower court, was reasonable, both as to time and amount, and sustained by the testimony.
It clearly appears that the decedent was the father of the appellee, and while the testimony as to the alleged contract is not of such a convincing character as to place it beyond doubt whether it was ever made, yet this is a question of fact upon which the lower court has passed, and we do not feel authorized upon the testimony to disturb the finding.
The only evidence to support it, however, is that of the mother of the appellee, and it is urged that it having been made by her with one who was dead when she testitified, her evidence under our testimony law is incompetent.
This position is untenable. She is not a party to the issue, or interested in the result; did not testify for herself, and must be regarded as having acted merely upon behalf of the appellee in the transaction. The promise was for the benefit of the child, but made to the mother, because, under the bastardy act, she was the proper one to institute legal proceedings to compel the father to support the child.
The deceased was under age when the contract was made; and both his then infancy, as well as the claim that the contract was not to be performed within a year, and was, therefore, within the statute of frauds, are relied upon to defeat the appellee.
Section 1, chapter 22, of the General Statutes, provides that no action shall be brought to charge any one " upon any agreement which is not to be performed within one year from the making thereof," unless it be in writing. The contract, however, might have been fulfilled within a year from the making of it by the death of the child. This would have operated as a defeasance of it, and it was therefore capable of a full performance within a year.
If the performance of a contract depends upon a contingency which may happen within a year, then it is not within the statute, although that contingency may not in fact happen until after the expiration of the year; and although the parties may not have expected that it would occur within that period. It is sufficient if the possibility of performance existed.
Thus a parol promise to pay so much money upon the return of a certain ship; or to one upon the day of his marriage; or to support one for a certain number of years, is not within the statute, although the ship may not return, or the party marry, or the person die within a year.
The event might have occurred within that time, and therefore the statute does not apply. (Ellicott v. Peterson's Ex'rs, 4 Md. 476; Peters v. Westborough, 19 Pick., 364; Howard's Adm'r v. Burgen, 4 Dana, 137.)
There is a natural obligation upon every man to care for his offspring until it is self-supporting. It is not sufficient in itself as a consideration to support a contract; and by the common law there was no legal liability upon the part of the father to support his bastard child. But in most, if not all civilized countries, he can now, at the instance of the mother, be made to do so, under the statute, by what is known as a " bastardy proceeding; " and if he contracts to do what he can by law be forced to do, and in consideration that no legal steps shall be taken against him...
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