87 Ky. 30 | Ky. Ct. App. | 1888
delivered the opinion of the court.
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 ten thousand
At common law the father was not bound to support his bastard child. He was said to be films 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 M. & 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. (Lumigar 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. M., 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 help
The action is against both the heirs and personal . representative. Doubtless, the only reason why it was instituted upon the equity side of the docket was, that the personal estate of the decedent was insufficient to pay the claim, and it was asked that the real estate in
The mother lived with the decedent for. many years as his concubine. The unlawful relation began prior to the birth of any of the appellants, and continued until his death. She no doubt expected that he would provide for her and her children by will. There is no evidence that she ever threatened or proposed to institute any proceedings against him' looking to the support of the children. They were all living under the same roof. Under such circumstances it would be exceedingly dangerous to the rights of legitimate heirs, even legitimate children, and destructive of home, family and social relation, if, upon questionable testimony, and mere natural affection and moral duty only, the parol promise of the putative father were to be held valid, and his estate subjected to its payment.
The statute has provided a remedy for the mother and illegitimate children; and the law, through mercy and'for the protection of the weak and helpless from
Judgment affirmed.