CHAPTER XVI.

OF PARENT AND CHILD.

3d. Relation of Parent and Child.

The next and most universal relation in society is that between parent and child.

Children are of two sorts, legitimate and spurious, or bastards, each of which will be considered in its order, and first of legitimate children. (1 Bl. Com. 446; 2 Steph. Com. 314; Reeve's Dom. Rel. 270 & seq.; Bac. Abr. Bastardy);

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1o. Legitimate Children.

It is proposed to state, (1), The definition of a legitimate child; (2), The duties of parents to legitimate children; and (3), The powers of parents in respect to legitimate children.

1'. Definition of a Legitimate Child.

A legitimate child is defined at common law to be one that is born in lawful wedlock, or within a competent time after its termination, where there is no impossibility of procreation by the husband. (1 Bl. Com. 446; 2 Steph. Com. 314; Reeve's Dom. Rel. 270; Bac. Abr. Bastardy, (A).)

Pater est quem nuptiae demonstrant is the rule of the civil or Roman law; and this holds with the civilians, whether the nuptials happen before or after the birth of the child. In England the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said in treating of bastards. (1 Bl. Com. 446.)

In Virginia such changes have been wrought by statute as materially to modify the definition. Having regard to those changes, we may define a legitimate child. as one born in wedlock, whether lawful or not (where procreation by the husband is not impossible), or within a competent time after the coverture is determined; or if born out of wedlock, where the parents afterwards intermarry, and the father recognizes the child, either be fore or after the marriage. (V. C. 1873, c. 119, § 6, 7; Ash v. Way's Adm'r, 2 Grat. 203; Stones v. Keeling, 5 Call. 143; Watkins & ux v. Carlton, 10 Leigh, 560.) 2. The Duties of Parents to Legitimate Children.

The duties of parents to their legitimate children range themselves under the heads following, namely: (1), Their maintenance; (2), Their protection; and (3) Their education;

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18. The Duty of Maintenance of Legitimate Children.

The wants and the weakness of childhood render maintenance by some one other than the child himself indispensable, and the voice of nature indicates the parent as the fittest person to afford it. The duty of maintenance on the part of parents in respect to their infant children is, therefore, a principle of natural law, the right to which, on the part of such children, is insisted upon as a perfect right by the most eminent authorities, as, amongst others, by Puffendorf and Montesquieu. The latter very justly observes that the ordinance of marriage in civilized States is built, in part, on this natural obligation of the father to provide for his children; for marriage ascertains and makes known the person who is bound to fulfil the duty; whereas, in promiscuous and illicit conjunctions, the father is unknown, and the mother, besides being generally wanting in ability, finds a thousand obstacles in her wayshame, remorse, the constraint of her sex, and the rigor of social laws-that stifle her inclinations. (1 Bl. Com. 447; Puffend. Nat. Law, B. IV, c. xi, § 4; Montesq. Sp. Laws, B. XXIII, c. 2; 2 Kent's Com. 189; Reeve's Dom. Rel. 283.)

The municipal laws of all well regulated societies take care to enforce this duty; though Providence has done it more effectually by implanting in the heart of every parent that unquenchable affection which not even the deformity of person and mind, nor the wickedness, ingratitude, and rebellion of children can totally extinguish. (1 Bl. Com. 447.)

The civil or Roman law obliges the parent to provide maintenance for his offspring. Nay, it does not suffer him at his death to disinherit his child without expressly giving his reasons for so doing; and fourteen reasons are reckoned up which may justify such disinherison. If the parent alleges no reason, or a bad or false one, the child may set the will aside, tanquam testamentum inofficiosum, a testament contrary to the natural duty of the parent. And it is remarkable under what color the children are to move for relief in such cases—namely, by suggesting that the parent had lost the use of his reason when he made the inofficious testament. And this, as Puffendorf observes, is not to bring into dispute the testator's power of disinheriting his own offspring for sufficient reasons, but to examine the motives upon which he did it; and if they are found defective in reason, then to set the testament aside. But this may well be considered as going too

far. Every man ought to have, by the laws of society, power to dispose of his own property; and, as Grotius very well distinguishes, natural right obliges a parent to give a necessary maintenance to children, at least during the period of infancy; but what is more than that, they can claim only by the favor of their parents, or the positive constitutions of the municipal law. (1 Bl. Com. 447-'8; Puffend. Nat. Law, B. IV, c. xi, § 7; Grot. de Jur. Bel. &c. B. II, c. 7, § 3.)

Let us next see what provision our own law has made for enforcing this natural duty. In England the limits of the obligation, and the manner of coercing its performance, are prescribed by sundry statutes, as 43 Eliz. c. 2, and others; and as these have not been enacted in Virginia, it has been gravely questioned by high authority (1 Tuck. Com. (B. I.) 126,) whether with us, governed as we are in this particular by the common law alone, there is any perfect legal obligation upon a parent to afford necessary maintenance to his infant children. In England the common law courts, after some fluctuations, seem to have settled down upon the doctrine that a parent is not obliged, independently of statute, to pay for necessaries furnished an infant child, and that it is only by virtue of an actual or implied authority from him that he can be charged with anything, even necessaries, supplied to such child. (1 Pars. Cont. 247 & seq. and notes; Mortimore v. Wright, 6 M. & W. 482; Shelton v. Springett, 11 Com. B (73 E. C. L.) 452.)

Looking at the question, however, in the light of common sense, it would seem that, as common law is common reason, and enforces in general all definite precepts of natural duty, as this is; as the parent (or at least the father), is entitled to all the earnings of his infant child; as provision is made by statute (V. C. 1873, c. 121, § 5,) to compel a putative father to support his bastard children, and also to pay the expenses of his infant child in the State lunatic asylum (V. C. 1872, c. 82, § 53); and as it has always been held in equity that a father, if of ability, is bound to maintain his minor children, even though they may have property of their own, the conclusion should be clearly in favor of the common law obligation of the father at least, to support his infant offspring; and so, according to Mr. Parsons (1 Pars. Cont. 251 & seq.), is the tenor of American authority; but certainly with an imposing array of dissent.

Whether a mother, who is not fully within these rea

sons, is bound (if there be no father), to maintain her children whilst they are under age is more than doubtful; the weight of authority, both in England and the United States, being against her liability. (1 Pars. Cont. 256 & n (c); 2 Kent's Com. 191.)

In Virginia the doctrine is believed to be established that the common law holds the father at least, legally bound to suply necessaries to his infant child; and that he may therefore be charged with the contracts of such child for necessaries (as a husband may be on the contracts of his wife), on the score of duty, as well as on the score of agency. On the score of duty he is liable only for strict necessaries (not without reference, however, to the father's fortune and condition in society, or the condition which he has allowed his child to assume); and, moreover, for such necessaries as have not been supplied by the parent or from any other source. And the father cannot impair this liability, arising out of his duty, by any general notice or prohibition, although perhaps he may thereby preclude transactions with particular persons. But the liability ceases where the duty ceases, or is performed. On the score of agency, the liability may extend, of course, as far as the authority, whether express or implied, extends; and is capable of being terminated, as we have seen (Ante p. 223, 5o), other agencies are, by revocation, &c. (1 Bl. Com. 447; 2 Kent's Com. 191; 1 Pars. Cont. 253 & seq. and notes; Van Valkinburg v. Watson, 13 Johns. 480; Easley v. Craddock, 4 Rand. 423; Myers v. Wade, 6 Rand. 448; Evans v. Pearce, 15 Grat. 515; Penn v, Whitehead, 17 Grat. 503; Griffith v. Bird & als, 22 Grat. 80; Hughes v. Hughes, 1 Bro. C. C. 387, & note; Andrews v Partington, 3 Bro. C. C. 60; Munday v. Howe, 4 Bro. C. C. 223; Hoste v. Pratt, 3 Ves. Jun'r, 733; Maberly v. Turton, 14 Ves. 499; Greenwell v. Greenwell, 5 Ves. 197, & notes.)

In England, they have two statutes designed to relieve the parish of the support of impotent persons who have near relatives able to take care of them, namely, the statutes of 43 Eliz. c. 2, and 5 Geo. 1, c. 8, &c. They require not only the father and mother, but also the grand-futher and grand-mother of the impotent poor, to maintain them; but only in respect to such as are unable to work, through infancy, age, disease, or accident, and then to provide necessaries only. The common law imposes no obligation save on the father (possibly on the mother also), to afford support to his children, and applies to no children but those

under twenty-one years of age. Hence, a man is not bound to support his infant son's wife or children, nor the infant children of his own wife by a previous marriage, at least not under the principle in question; but if the daughter-in-law, or step-children, live in his family, and are treated as a part thereof, he will be liable on the ground of agency, for supplies procured for them, as for the rest of his family, by his wife, unless he gives notice to the contrary. An idea at one time prevailed (which receives Blackstone's sanction), that as the wife, before her second marriage, if of sufficient ability, was charged with the support of her children, the obligation, after the marriage, like her other debts, devolves on her husband; but later resolutions have ascertained this to be a fallacious analogy, the wife herself being discharged by her second marriage from any future liability, even supposing (what is believed to be not true), that any liability attaches to her at any time. (1 Bl. Com. 449; Rex v. Dempson, 2 Stra. 955; Rex v. Munday, 1 Stra. 190; Cooper v. Martin, 4 East. 82; Tabb v. Harrison, 4 T. R. 118; Billingsley v. Crickett, 1 Bro. C. C. 68.)

As germane to the present topic, it is expedient to enquire into the doctrines which prevail touching the maintenance of an infant out of his own fortune, if he has one The principle, as already indicated, is, that if the father be of sufficient ability, he must himself maintain the infant child, without having any allowance therefor out of the child's estate. But if the father be himself unable to support and educate the child in a manner corresponding to the fortune he is to enjoy, a court of equity will decree such a sum to be contributed periodically, from the infant's estate, as will suffice to accomplish the object in view. But otherwise, the infant's property will be allowed to accumulate for his own benefit, unless, indeed, a legacy were left him expressly for maintenance. And where

the father is not of ability, maintenance will be decreed for the time past, as well as to come, but without interest on the arrears. (Jackson v. Jackson, 1 Atk. 515; Fawkner v. Watts, Id. 408; Butler v. Butler, 3 Atk. 60; Jeffreys v. Jeffreys, 3 Atk. 123; Darley v. Darley, 3 Atk. 399; Hughes v. Hughes, 1 Bro. C. C. 387, & n (1); Andrews v. Partington, 3 Bro. C. C. 60, & n's (1) and (a); Munday v. Howe, 4 Bro, C. C. 223; Hoste v. Pratt, 3 Ves. 733; Simon v. Shaw, 9 Ves. 285, 288; Collis v. Blackburn, Id. 470; Maberly v. Turton, 14 Ves. 499, 500, 501, &c.; Mellish v. Mellish, 14 Ves.