64 Me. 484 | Me. | 1874
The question is whether a decree of this court, made in a divorce suit, that the mother shall have the care'and
We think it is not. The statute conferz’ing jurisdiction in such cases is very comprehensive. It authorizes the court to make such a decree as the circumstances require. If, from hostility to the mother, or other cause, there is dazzger that the father will disizzlierit his children, and thus leave them to be supported by their mother without any aid frozn his estate, a decree may vezy properly be made for their support that shall continzze in force after his decease, or uzztil they are of sufficient age to provide for themselves; or at least till the further order of court. Azzd if there is danger that the father will squander his property, or convey it away, so that none will be left for the decz*ee to operate upon, he may very properly be required to give security.
We do not controvert the position of the leazmed counsel for the defendant that, by the rizles of the common law, a father is under no legal obligation to provide for the szipport of his children after his death. It may be that he cazz disinherit them and leave thezn to be supported by others. “I am surpz’ised,” said Lord Alvanley, “that this should be the law of any country, but I fear it is the law of England.” 2 Kent’s Com., 10th ed., 225.
But we think such can only be the law when the family relations remain izitact, and when there is no great danger that such aiz arbitrary power will be exercised. We think that when, through the fault of the father, his family is broken up, azzd his children become in one sezise the wards of the court, this power is taken from him, and he may be cozripclled, if of sufficient ability, to give secuz’ity for the snppoz’t of his children that shall be binding upon his estate.
Certainly such ought to be the law. Take, for instance this very case. Hero was a father, who, beizig possessed of a laz’ge estate by izzheritazzce, was amply able to provide for the future support of his children. Through his own misconduct his faznily
We are aware of no rule of law in conflict with this decision. Nothing was decided in Stinson v. Prescott, 15 Gray, 335, cited by defendant’s counsel, except that the written promise of the husband to pay his wife’s board and other expenses at a hospital imposed no obligation upon his administrator to pay for her board after the husband’s death, the contract itself being silent as to the length of time for which the husband should be holden. The court did not decide that a husband could not make a contract for his wife’s support that should be binding upon his administrator. We apprehend no court ever so decided. They simply decided that that particular contract imposed no such obligation. If, like the bond sued in this case, it had expressly declared that it should be binding upon his administrator, or executor, the court would
Our conclusion, therefore, is that, a decree made in a divorce suit, that the mother shall have the care and custody of the minor children, and that the father shall pay a certain sum quarterly towards their support, which by its terms is to continue in force till the further order of court, is not discharged by his death; and that a bond given to secure the performance of such a decree, is binding upon the surety, notwithstanding the death of the principal obligor.
Judgment for plaintiffs for the .penal sum named in the bond. Execution to issue for the full amount of the quarterly payments in arrear at the time of the rendition of judgment.