after making the foregoing statement of facts,, delivered the opinion of the court..
Had the provisions of this contract, so far as contracting to pay money for the support of his wife is concerned;, been embodied .in the decree of divorce which the husband obtained from his wife in Ohio on the ground of desertion, the liability of the husband to pay the amount as alimony, notwithstanding his discharge in bankruptcy, cannot be doubted. Audubon v.
Shufeldt,
Conceding that' the bankruptcy act provides for discharging some classes of contingent demands or claims, this is not, in our opinion, such a demand. Even though it may be that an annuity dependent upon life is a contingent demand within the meaning of the bankruptcy act of 1898, 30 Stat. 544, yet this ■contract, so far as regards the support of the wife, is not dependent upon life alone, but is to cease in case the wife remarries. Such a contingency is not one which in -our opinion . is within the purview of the act,-because of the innate difficulty, if not impossibility, of estimating or valuing the particular contingency 'of widowhood. A simple annuity which is to terminate upon the death of a particular person may be valued/ by reference „to the mortality dables. Mr. Justice Bradley, in
Riggin v.
Magwire,
It was remarked' by the justice- in that' case that 'if the contract had come .within the category of annuities and debts payable in future, which ■ are absolute and existing claims, the value of the wife’s probability of survivorship after death of her husband might have been calculated on the principles of life annuities.
But how can any calculation be made in regard to the continuance of widowhood when there are no tables and no statistics by which to calculate such contingency ? How can a valuation of :a probable continuance of 'widowhood be made ? Who can say what the probability of remarrying is in regard to any particular widow? ‘ Ve know what some of the factors might be in the question; inclination, age, health, property, attractiveness, ehil-
In many cases where actions are brought for the violation of contracts, such as
Pierce
v.
Tennessee Coal &c. Railroad Company,
Taking the liability as presented by the contract, if the mortality tables were referred to for the purpose of ascertaining the value so far as it depended upon life, the answer would be no answer to the other contingency of the continuance of widowhood; and if having found the value as depending upon the mortality tables you desire to deduct from that the valuation of the other contingency, it is pure guesswork to do it.
It is true that this has been done in England under the English bankruptcy act of 1869. In Ex parte Blakemore, L. R. 5 Ch. D. 372 (1877), it was held by the court of appeal that the value of the contingency of a widow’s marrying again was capable of being fairly estimated, ana that proof must be admitted for the value of the future payments as ascertained by an actuary. That decision was made under the thirty-first section of the bankruptcy act of 1869. James, Lord Justice, said:
“ No doubt it is uncertain whether the appellant will marry again, just -as the duration of any particular life is 'uncertain. But, though the duration of a particular life is uncertain, the expectation of life at a given age is reduced to a certainty when ■you have regard to a million of lives'. The value of the expectation of life is arrived at by an average deduced from practical experience.’-’
Although the English statute makes it necessary tq arrive at a conclusion upon this point, yet there is no “ practical experience ”
In the case of
Mudge
v. Rowan,
supra,
there was a deed of separation between husband and wife, in which the husband covenanted to pay’an annuity to his wife by quarterly installments, the annuity to cease in the event of future cohabitation
The one hundred and seventy-fifth section of the act of 1849 expressly provided that the creditor might prove for the value of any annuity, which value the court was to ascertain. Kelly, Chief Baron, said:
“ The annuity seems to me to be so -uncertain in its nature as to be impossible to be valued. • In many cases the Commissioner of Bankruptcy may have to deal with contingencies the value of which depends on a variety of considerations, and where the valuation is very difficult. But here I am at a loss to see any single circumstance upon-which a calculation of any kind could be based.”
Martin, Baron, said:
“ This contingency depends on an infinite variety of circumstances, into which it is idle to suppose a commissioner could inquire.”
Channell, Baron, concurring, said:
“ The tendency of recent legislation,-and the course of recent decisions, has been to free a debtor who becomes a bankrupt from all liability of every kind ; but I do not think an order of discharge a bar to such a claim as the present. ... I quite admit that, to bring an annuity within the act of 1849, it is not necessary to have .any actual pecuniary consideration. I also feel that in many cases the difficulty of calculating the present valué of contingencies may be very great, and yet they may be within the acts. But here it appears to me that the difficulty is insuperable.”
In
Parker
v. Ince, 4 H. & N. 53 (1859), there was a bond conditioned to pay an annuity during 'the life of the obligor’s wife, provided that if the obligor and his wife should at any time thereafter cohabit as man and wife the annuity should cease, and it was held that the annual sum thus covenanted to be paid by the defendant was not an annuity within the one hundred and seventy-fifth section of the bankruptcy law or consolidation act of 1849, nor a debt payable upon a contingency
“ That cannot be such an annuity as would fall within the one hundred and seventy-fifth section, because a value cannot be put upon it. How is it possible to calculate the probability of a man and his wife who are separated living together again ? Their doing so depends upon their character^ temper, and disposition, and it may be a variety of other circumstances. Then is it money payable uponta contingency within the oné hundred and seventy-eighth section % I think it is not.”
It is only, therefore; by reason of the extraordinarily broad language contained in the thirty-first section of the English bankruptcy act of 1869 that the English courts have endeavored to make a fair estimate of the value of a contract based on the continuance of widowhood, even though the value was not capable of being ascertained by fixed rules, nor assessable by a jury, but was simply to be estimated by the opinion of the court or of some one entrusted with the duty.
In the Blakemore case, L. R. 5 Ch. D. 372, supra, after the announcement of the judgment, the report states, that it was then arranged that it should be referred to an actuary to ascertain the annuity as a simple life annuity, and to deduct from that value such a sum as he should estimate to be the proper deduction for the contingency of widowhood. In other words, it was left to the actuary to guess the proper amount to be deducted.
No such broad language is found in our bankruptcy act of 1898. Section 63a provides- for debts which may be proved, which, among others, are (1) “ A fixed liability, as evidenced by a judgment or- an instrument in writing, absolutely owing at the time of the filing of the petition against Mm, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest on such as were not then payable and did not bear, interest; ” ‘(4) “founded upon an open account, or upon a contract express or implied.”
We do not think that by the use of the language in section 63a it was intended to permit proof of contingent debts or liabilities or demands the valuation or estimation of which it was substantially impossible to prove.
The language of section 63a of the act of 1898 differs from that contained in the bankruptcy act of 1867, and also from that of 1841. The act of 1867, section 19, 14 Stat. 517, 525, carried into the Revised Statutes as section 5068, provided expressly for cases of contingent debts and contingent liabilities contracted by the bankrupt, and permitted applications to be made to the court to have the present value of the debt or liability ascertained and liquidated, which was to be done in such manner as the court should order, and the creditor was then to be allowed to prove for the amount so ascertained.
Section 5 of the act of 1841, 5 Stat. 440, provides in terms for the holders of uncertain or contingent demands coming in and proving such debts under the act. But neither the act of 1841 nor that of 1867 would probably cover the case of such a contract as the one under consideration.
Cases have been cited showing some contingent debts which were held capable of being proved under the bankruptcy act of 1898, among which are Moch v. Market Street National Bank, 107 Fed. Rep. 897, Circuit Court of Appeals, Third Circuit, 1901, and Cobb v. Overman, 109 Fed. Rep. 65, Circuit Court of Appeals, Fourth Circuit, 1901. And under former bankrupt acts, the cases of Fisher v. Tifft, 12 R. I. 56 (1878); Heywood v. Shreve, 44 N. J. L. 94 (1882), and Shelton v. Pease, 10 Missouri, 473 (1847).
The contingency in the case of
Moch
v.
National Bank, supra,
was that the bankrupt was the endorser of commercial paper
In Cobb v. Overman, supra, the bond of the bankrupt to secure payment to the obligee of an annuity for. life was held to be properly proved under section 63a, clause 1.
These cases, it will be seen, do not come within the principle of the case at bar. The other cases, arising under the acts. of 1867 and 1841, do not affect this case..
The Massachusetts court held the debt herein not provable, upon the authority of Morgan v. Wordell, 178 Massachusetts, 350, and Goding v. Roscenthal, 180 Massachusetts, 43. Mr. Justice Barker, in delivering the opinion of the Supreme Judicial Court of Massachusetts in the latter case, said:
“ But in Morgan v. Wordell, 178 Massachusetts, 350, this court-assumed that such claims were not provable under the. act, and we follow that view in the present case.” .
We think the contract, so far as it related to the .payment to the wife during her life or widowhood, was not a contingent liability provable under the act of 1898.
~ In relation to that part of the husband’s contract to pay for the support of his minor children until they respectively became of age, we also think that it was not of a nature to be proved in bankruptcy. At common law, a father is bound to support his legitimate children, and the obligation continues during their minority. • We,may assume this obligation to exist in all the States. In this case the decree of the court provided that the children should remain in the custody of the wife, and the contract to contribute a certain sum yearly for the support .of each child during his minority, was simply a contract to do that which the law obliged him to do; that is, to support his minor' children. The contract' was a recognition of such liability on his part. We think it was not the intention of Congress, in passing a bankruptcy act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do
In In re Baker, 96 Fed. Rep. 954, in the District Court of Kansas, it was held that a judgment in a bastardy proceeding against the putative father, adjudging him to pay a certain sum to the mother of the child for its maintenance, was not such a debt.as would be released by the discharge of the father in bankruptcy, and it was put upon the ground that by virtue of the judgment and bond given thereon, the father became liable- for the maintenance of the illegitimate son the same as if he were his legitimate offspring, and that the bankruptcy law was never intended to affect the liability of the father for the support of his children.
In the case of In re Hubbard, 98 Fed. Rep. 710, the District Court of Illinois held that a discharge in bankruptcy did not release the bankrupt from the obligation to obey an order made by a state court requiring him' to pay a certain sum for the support of his minor children.' Kohlsaat, District Judge, said:
“ The bankruptcy act was passed to relieve persons bringing themselves within its provisions from the incubus of hopeless indebtedness, but it was not intended to, nor does it, subvert the higher rule, which casts upon a parent the care and maintenance of his offspring. The welfare of the State, as also every principle of law, statutory, natural, and divine, demand that, so long ás he has any substance at all, he shall apply it to the maintenance of his children. Creditors, as well as all citizens, are interested in the enforcement of this rule.”
As the defendant would still remain liable for the support of his minor children, even if discharged from this contract under the act, and he would remain liable for past support, why should it be held that Congress intended that such a contract, to-do what
The amendments to the bankruptcy act passed in 1903,3-2 Stat. 797, contain an amendment of section 17 of the act of 1898, which relates to debts not affected by a discharge, and it provides, among those not released by a discharge in bankruptcy, a debt due or to become due for alimony, or for the maintenance or support of wife- or child. It is.true that the provisions of the amend-atory act are not to apply to cases pending before their enactment. They are only referred to here for the purpose of showing the legislative trend in the direction of not discharging an obligation of the bankrupt for the support and maintenance of wife or childreh.
The judgment is
Affirmed.