Elliott v. Elliott

69 S.E.2d 224 (1952)

235 N.C. 153

ELLIOTT et al. v. ELLIOTT.

No. 18.

Supreme Court of North Carolina.

February 27, 1952.

*225 D. Emerson Scarborough, Yanceyville, for plaintiffs appellants.

Burns & Long, Roxboro, for defendant appellee.

WINBORNE, Justice.

Whether the facts and circumstances alleged in the complaint, if supported by competent evidence, be basis on which may be founded a challenge to the validity of the will of Henry Elliott, In re Will of Redding, 216 N.C. 497, 5 S.E.2d 544; In re Will of West, 227 N.C. 204, 41 S.E.2d 838, is not presented by this appeal. Such question would be for another forum.

The question here is this: Under the laws of the State of North Carolina does the obligation of a father to provide necessary support for his minor children terminate at his death? The effect of the ruling of the court from which this appeal is taken is that on the facts alleged in the complaint of plaintiffs such obligation does terminate with that event. And we concur.

While the duty or obligation of a father to support his children during minority has been the subject of decision in opinions of this Court, Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R.2d 905, the question above stated has not been presented or decided by this Court.

Indeed, in brief of attorney for plaintiffs, the appellants, filed on this appeal, the argument is opened with this statement: "It does not appear that this particular situation is covered by statutory law in North Carolina, or that the question has been previously presented to this Court. Therefore, it becomes necessary for the plaintiffs to rely upon the common law to support their cause."

Hence, and rightly so, we look to the common law,for so much of the common law as has not been abrogated or repealed by statute is in full force and effect within this State. G.S. § 4-1, formerly C. S. § 970. Among other cases, see State v. Hampton, 210 N.C. 283, 186 S.E. 251; Merrell v. Stuart, 220 N.C. 326, 17 S.E.2d 458; State v. Batson, 220 N.C. 411, 17 S.E.2d 511, 139 A.L.R. 614; State v. Emery, 224 N.C. 581, 31 S.E.2d 858, 157 A.L.R. 441; Hoke v. Atlantic Greyhound Corp., 226 N. C. 332, 38 S.E.2d 105; Moche v. Leno, 227 N.C. 159, 41 S.E.2d 369; State v. Sullivan, 229 N.C. 251, 49 S.E.2d 458; Scholtens v. Scholtens, 230 N.C. 149, 52 S.E.2d 350; Ionic Lodge #72 F. & A. A. M. v. Ionic Lodge Free Ancient & Accepted Masons, 232 N.C. 648, 62 S.E.2d 73.

In this connection, we find in American Jurisprudence this statement: "By the rules of the common law, a father is under no obligation to provide for the support of his infant children after his death; his liability *226 for their support is held to terminate with that event, and no claim therefor survives against his estate." 39 Am.Jur. at 647, Parent and Child, Sec. 40.

And in Corpus Juris Secundum, referring to duration of father's duty, and death of father, the writer states: "The duty of the father to support and maintain his child * * * is a continuing one and endures until legally terminated.

"In the absence of an agreement, the father's duty to furnish support to his children ordinarily ceases on his death and thereafter, at common law * * * the duty of supporting the children devolves on the mother, except in certain instances * * *." 67 C.J.S., Parent and Child, § 15, citing these cases: Rice v. Andrews, 127 Misc. 826, 217 N.Y.S. 528; Haimes v. Schonwit, Sup., 50 N.Y.S.2d 717, modified on other grounds 268 App.Div. 652, 52 N.Y.S.2d 272; Silberman v. Brown, Ohio Com.Pl., 72 N.E.2d 267; Robinson v. Robinson, W.Va., 50 S.E.2d 455.

In Rice v. Andrews, supra [127 Misc. 826, 217 N.Y.S. 531], a case where in a divorce proceeding the father had been given the custody of his son, the New York court said: "The obligation under the decree is still a personal one, and does not constitute a debt of the parent. It cannot, therefore, be made operative upon his estate after his death."

In Silberman v. Brown, supra [Ohio Com.Pl., 72 N.E.2d 267], the court recognizes the principle, epitomized in headnote, that "In absence of any agreement, a father's liability for support of a minor child ordinarily terminates at father's death."

And in Robinson v. Robinson, supra [W. Va., 50 S.E.2d 458], the Supreme Court of West Virginia considered the question as to whether the force and effect of a decree in a divorce proceeding, for maintenance and support of infant children, operated beyond the death of their father against whom the decree was entered, and rested decision on the case of Blades v. Szatai, 151 Md. 644, 135 A. 841, 50 A.L.R. 232. Fox, J., writing for the Court, quotes from the Blades case the following: "A father is under a common-law obligation to support his child during latter's minority without regard to a divorce decree prescribing the amount and to whom payable, unless it orders that the child be supported by another", and "A father's obligation to support his child during the latter's minority ceases at the father's death, no matter what the child's age may be, and his estate is not liable for payments accruing thereafter under a divorce decree." And the writer, continuing, said: "This decision is founded upon the theory that the common-law obligation of a father to support his child ceases upon his death, and that, upon that event, the interest of the child in his estate is based upon the statutory right of inheritance, where the father dies intestate, but subject, of course, to the right of the father to disinherit a child by the execution of a will; and upon the further theory that, to hold otherwise would be to disrupt the general theory of inheritance, prefer one child over another, and interfere with the common rules firmly established by statute law, governing the descent and distribution of the property of a decedent." And the Court declared that the common-law obligation is one which, under all the authorities, ceases at the death of the father.

While these authorities are not controlling on this Court, yet they point out with convincing effect the common-law rule that the obligation of a father to support his minor children ceases upon his death,a rule which has not been abrogated or repealed by statute in North Carolina. And hence is still in effect. G.S. § 4-1.

This rule is consonant with general statutes enacted by the General Assembly of North Carolina pertaining to (1) Administration of estates, Chapter 28, including Article 17 thereof prescribing rules as to distribution; (2) Rules of descent, Chapter 29; (3) Widow's year's allowance, Chapter 30, Article 4, and (4) Wills, Chapter 31.

The relation of parent and child is a status, and not a property right. 67 C.J. S., Parent and Child, § 2, p. 628. Indeed, this Court, in the case of Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414, 415, in opinion by Stacy, C. J., had this to say: "It is the public policy of the State that a husband *227 shall provide support for himself and his family. * * * This duty he may not shirk, contract away, or transfer to another. * * * It is not a `debt' in the legal sense of the word, but an obligation imposed by law, and penal sanctions are provided for its wilful neglect or abandonment. * * *" See also Article 40 of Chapter 14 of General Statutes entitled "Protection of the Family". These statutes are personal ones.

Finally it may be said that this Court does not make the law. This is the province of the General Assembly. Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479, Scholtens v. Scholtens, supra. And the General Assembly has not seen fit to modify the common-law rule that the obligation of a parent to support his children during minority terminates on the death of the parent.

Hence the judgment, sustaining the demurrer to the complaint, is

Affirmed.