Zilley v. Dunwiddie (In re Zilley's Estate)

• Decision Date: 08 February 1898
• Citation: 98 Wis. 428,74 N.W. 126
• Parties: IN RE ZILLEY'S ESTATE. ZILLEY v. DUNWIDDIE.
• Court: Wisconsin Supreme Court

98 Wis. 428

74 N.W. 126

IN RE ZILLEY'S ESTATE.

ZILLEY

v.DUNWIDDIE.

Supreme Court of Wisconsin.

Feb. 8, 1898.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

In the matter of the estate of August Zilley, deceased, Mary A. Zilley filed a claim for supporting one of deceased's children for a certain number of years. From a judgment disallowing the claim, she appealed to the circuit court, which allowed the claim, and Clayton A. Zilley and another appeal. Affirmed.

This is an appeal from the judgment of the circuit court for Rock county allowing the claim of Mary A. Zilley, the respondent, against the estate of her former husband, August Zilley, deceased. The parties were married September 26, 1867, and divorced, by a decree of the circuit court for Rock county, December 29, 1884, in an action brought by the claimant against said August Zilley, on the ground of his cruel and inhuman treatment. The court by its decree made a final division of the estate of said August Zilley between him and the said Mary A. Zilley. The parties had an understanding with each other previous to the divorce in regard to the custody and education of the two children of the marriage, namely, William A. Zilley, at that time about 16 years of age, and Clayton A. Zilley, about 5 years of age to the effect that the mother, the present claimant, should have the custody and education of the boy William A. Zilley, and also of the youngest child, Clayton A. Zilley, until he should become of the age of 10 years, after which his father was to have him. The court accordingly decreed the custody of said children to the mother “until the youngest of said children should become of the age of 10 years, or until the further order of the court,” the defendant in the meantime having the right to visit such children at reasonable times, in the daytime. No provision whatever was made in the decree as to the maintenance and support of either of the children. About two or three years subsequent to the divorce the deceased was married to Martha Zilley, who survives him. The deceased, August Zilley, then resided in the city of Beloit, where he continued to reside after the divorce and for some two or three years after his second marriage. He then moved onto his farm, near said city, and continued to reside there until the time of his death, March 7, 1895. The youngest child became 10 years of age July 9, 1889, when the deceased, August Zilley, applied to the claimant for the boy to go and live with him, and she refused to allow him to go; whereupon he told her that if the child could not come and stay with him he would not pay for his keeping; that he was willing to pay his schooling, and give him a home with him, which was where he belonged, as he understood it. A room was fixed up for him in the home where Mr. Zilley then resided, and subsequently Zilley tried frequently to get the boy to live with him, but claimant would not consent. He continued to make his home with the claimant down to the 13th of January, 1895, when his father sent him to Faribault, Minn., to school, where he remained until after the death of the latter. It was found by the circuit court, among other things, that no allowance for or provision respecting the expense of the education and support of said children was made by the judgment, and no application to the court in respect thereto or in respect to the custody of said children was made by either party after judgment. The youngest child, Clayton A. Zilley, became 10 years old July 9, 1889, and had at all times since the divorce resided with his mother, the claimant, excepting short periods of time, since he attained the age of 10 years, not exceeding in the aggregate 6 months. He was attending school at Faribault, Minn., the greater portion of the time when not so residing with his mother, and during the residue of such time he was with his father, August Zilley, and his second wife, upon said farm. He visited and resided with his father for a few days at a time on several occasions after he became 10 years of age, but preferred to reside with his mother, and returned to her on each such occasion, and made his permanent residence with her of choice, because his father was unwilling to compel, or did not compel, him to reside with him. Between July 9, 1889, and March 7, 1895, the date of the death of August Zilley, the claimant furnished said Clayton A. Zilley his board and lodging, and cared for him for and during five years and two months at her sole cost and expense, which board, lodging, and care were reasonably worth $1,072; and after said 9th day of July, 1889, and prior to March 7, 1895, said claimant furnished to said Clayton A. Zilley necessary clothing, at the cost to her of $146.50; and nothing had been paid to or received by her from any one for or on account of such board, lodging, and care, or for such clothing. The claimant filed a claim against the estate of said August Zilley, deceased, in the county court for Rock county, for such board, lodging, care, and clothing, for the sum of $1,444, and the county court, by its judgment, wholly disallowed said claim, and the claimant appealed therefrom to the circuit court. The foregoing facts were found by the circuit court, and that the executor of the last will and testament, George H. Crosby, had in his hands assets, properly applicable thereto, more than sufficient to pay the said claim. There was evidence that the deceased, August Zilley, desired the boy Clayton to live with him, and on one occasion sent for the boy, and the claimant said that he did not have to go if he did not want to. In answer to the question why she kept the boy, she testified that the boy stayed there, and “I felt under obligations to have him stay.” It appeared that the father was able and willing to properly provide for the boy, and desired that he should live with him. The circuit court reversed the judgment of the county court, and allowed said claim at the sum of $1,218.50, and adjudged that it be paid to the said claimant by said executor, with the costs of the action. The guardian ad litem of the two minor children of the said deceased, to wit, said Clayton A. Zilley and Edna Zilley, a daughter by his second wife, appealed.

B. F. Dunwiddie, for appellants.

Ruger & Norcross, for respondent.

PINNEY, J. (after stating the facts).

At the common law the husband was primarily liable for the support of his minor children. 2 Kent, Comm. 190. In McGoon v. Irvin, 1 Pin. 532, it was said that “by every principle of law upon the subject, recognized and strengthened by our statute, parents are under legal obligation to maintain and support their children who are of tender years and helpless.” The statute (Rev. St. § 1503) makes the father primarily liable to support his minor children. When the marriage is dissolved by divorce, the duty of parents to maintain their children remains as before, for children are not parties to the divorce suit, and do not lose any rights thereby. Hence the father's duty to maintain them after the divorce, where there is no decree of the court relating thereto, especially if their custody is not taken from him, remains as before. After the parents were divorced all duties and obligations to each other ceased, and they were as strangers to each other. Nels. Div. § 981. The claimant owed the husband no duty as wife, and her duty to support the child continued, as before, secondary, and his primary. 2 Bish. Mar. & Div. § 1210; Plaster v. Plaster, 47 Ill. 292. It is generally laid down that the liability of the husband to a divorced wife, in respect to the support of the children, is the same as to any third person, except as provided in the decree. If the court makes no order either for custody or support of children of the marriage, the divorce leaves the father's liability as at common law, and the mere divorce does not terminate his liability. 2 Bish. Mar. & Div. § 1220; Thomas v. Thomas, 41 Wis. 233. In a proper case, it seems, after the marriage is dissolved, he may be answerable to the mother for maintenance rendered the children while living with her. Stanton v. Willson, 3 Day, 37;Buckminster v. Buckminster, 38 Vt. 248. The father is under legal obligation to provide for the support of his children, even if they remain with their mother after her divorce, and, as against the public and the children, he cannot escape the duty. Courtright v. Courtright, 40 Mich. 633. Where the decree has granted the custody of the children to the wife, and contains no provision for their support, it has been held that the father is not liable for the support of the children. But this is upon the ground that, the statute having made it the duty of the court to provide for their custody and maintenance upon divorce, it will be presumed that the decree has made all the provisions on that subject that were necessary; that the decree is conclusive as to the respective rights and obligations of the parties, subject to the right to have it modified as subsequent exigencies may require. As the decree makes the parties strangers as to each other, it is generally considered that a divorced husband is not liable to his divorced wife for necessaries furnished a child of the marriage in her custody unless by agreement, express or implied; that there must be either an express promise, or facts from which one can reasonably be inferred. Ramsey v. Ramsey, 121 Ind. 215, 23 N. E. 69;Cushman v. Hassler, 82 Iowa, 295, 47 N. W. 1036. And it has been considered that the support of the child, under such circumstances, by the mother, was but the voluntary performance of a natural duty, and that her remedy was to apply to the court for maintenance of the child when the divorce was granted. These, and other cases of a similar purport, are confidently relied on as decisive against the claimant. In McGoon v. Irvin, supra, where the husband had procured a legislative divorce from...