After obtaining a divorce on the ground of his wife's desertion,
she not opposing the decree, the husband executed and delivered a
written contract by which he agreed to pay the wife a specified sum
annually for her own support during her life or so long as she
remained unmarried, and also to pay her a specified sum annually
for the support of their minor children whose custody was awarded
by the decree to the wife. Subsequently the husband was adjudged a
bankrupt and discharged. The wife sued for amounts accrued prior to
the discharge both for her own support and for that of her
children.
Held that, as to the amount payable for her own
support, it was not a contingent liability provable under the
Bankruptcy Act, and the contract was not of such a nature as would
permit the obligor to be discharged from the obligations thereunder
by a discharge in bankruptcy.
Held that, as to the amount payable for the minor
children, the contract was a recognition of liability on the part
of the father to support them and, as it does not appear that the
amount was unreasonable, the contract to do so could not be
affected by a discharge in bankruptcy, and the fact that the money
was payable to the mother did not affect the situation.
The defendant in error, being the plaintiff below, brought her
action in October, 1899, against the plaintiff in error in the
Municipal Court of Boston to recover moneys alleged to be due upon
a contract which was set forth in the complaint. Issue was joined
and the case tried before a single justice, and judgment ordered
for the defendant, with costs. An appeal was taken to the Superior
Court of the County of Suffolk, and that court ordered judgment for
the plaintiff for one branch only of her claim. The case was
reported to the Supreme Judicial Court for the commonwealth, and
that court ordered the court below to enter judgment for the
plaintiff for both branches of her claim, 180 Mass. 170, and the
case was remanded to the superior court for the purpose of entering
such judgment. Pursuant to the directions of the supreme court, the
superior court did enter judgment against the defendant for both
branches of her
Page 190 U. S. 341
claim, for the sum of $851.60 and costs. The defendant then
obtained a writ of error from this Court, directed to the Superior
Court of Massachusetts, where the record remained.
The case shows these facts: the parties were husband and wife,
who, in 1889, were living apart, the husband in Ohio and the wife
in Massachusetts. In May, 1889, the attorney for her husband came
to Massachusetts and saw Mrs. Dunbar, and told her that her husband
was about to seek a divorce from her. The wife at this time had no
means, and the two sons of the marriage, then respectively nine and
twelve years old, were living with her. The purpose of the visit of
the attorney was to obtain some assurance from her that she would
not contest the case, and, if she did not, that the husband would
make provision for aiding in the support of herself and her sons
until they arrived of age. The wife denied any intended desertion
of her husband, but the result of the negotiations after the wife
had taken counsel of friends was to give assurance to the attorney
that no defense would be interposed if he made some suitable
provision for herself and her children.
Upon the return of the attorney to Ohio, a suit for divorce was
commenced by the husband, and the summons served by publication. No
appearance was made, and there was no opposition to the decree of
divorce, which was obtained in July, 1889. It adjudged that the
marriage contract theretofore existing between the parties was
thereby dissolved, and both parties released from the obligation of
the same, and
"that the custody of the children of such marriage, one boy,
Harry H. Dunbar, aged twelve years, and Willie W. Dunbar, aged nine
years, be, and the same are, to remain in charge and under the
control of the said Lottie E. Dunbar, the said Horace B. Dunbar to
have the privilege of seeing said children at all reasonable
times."
The ground of divorce was stated, and the court found,
"upon the evidence adduced, that the defendant has been guilty
of willful absence for more than three years last past from
plaintiff, and that, by reason thereof, the plaintiff is entitled
to a divorce as prayed for."
After the divorce, the husband sent to a friend of his wife, to
be delivered to her, in performance of his agreement, a written
Page 190 U. S. 342
contract in which he bound himself to pay to Lottie E. Dunbar,
of Ashburnham, Mass., five hundred dollars yearly, so long as she
remained unmarried, in monthly installments. In that contract, he
also agreed to pay
"to our children, Harry H. Dunbar and Willie W. Dunbar, the sum
of two hundred and fifty dollars each, yearly, until they each
attain the age of fourteen years; after that age, they are to be
paid by me such extra allowance as will give them a good and
sufficient education befitting their station in life, and a
suitable maintenance until each attains the age of twenty-one
years."
This writing was signed by the husband and acknowledged before a
notary public of Hamilton, Ohio.
Payments upon this contract were made by the husband, but, in
1896, they had become somewhat in arrears, and disputes arose as to
the validity of the agreement. Thereafter, another contract was
entered into, and payments were made as called for in that contract
until some months prior to December 2, 1898. On such last-named
date, the defendant was adjudged a bankrupt, on his voluntary
petition in bankruptcy, in the United States District Court in
bankruptcy, Southern District of Ohio, Western Division, and on
April 24, 1899, was discharged from all debts and claims provable,
under the act of Congress relating to bankruptcy, against his
estate, existing on the second day of December, 1898.
In the schedule of the defendant, it appeared that he named the
plaintiff as a creditor, as follows:
Lottie E. Dunbar, Charlestown, Mass. . . . . . . . . $ 540
Alimony due up to present time.
Lottie E. Dunbar, Charlestown, Mass. . . . . . . . . 1,300
Alimony payable yearly.
The plaintiff, at the first meeting of the creditors in
bankruptcy proceedings, which was held before a referee appointed
therein, appeared by an attorney, who produced and filed his power
of attorney and filed her claim for $691.63, for installments on
the contract due to December 2, 1898. The husband had paid nothing
on the contract since sometime before December 2, 1898, and finally
the wife commenced an action to recover the amounts due
thereon.
Page 190 U. S. 343
The following is a copy of the contract sued on:
"Controversies having arisen concerning the agreement heretofore
made between Horace B. Dunbar and Lottie E. Dunbar in September,
1889, in consideration of said Lottie E. Dunbar's forbearance of
suit on such controversies, and in settlement of all such
controversies, and in substitution of said agreement of September,
1889, and in further consideration of the release by Lottie E.
Dunbar and in satisfaction of all claims under said original
agreement, Horace B. Dunbar agrees with the said Lottie E. Dunbar
as follows:"
"That said Horace B. Dunbar will pay to Lottie E. Dunbar during
her life, or until she marries, for her maintenance and support,
yearly, the sum of five hundred dollars, and will pay to her yearly
for the support and maintenance of her child, Harry H. Dunbar, the
sum of four hundred dollars until he shall attain the age of
twenty-one years, and shall pay to her yearly for the support and
maintenance of her child, Willie W. Dunbar, the sum of four hundred
dollars until he shall attain the age of twenty-one years, all said
sums to be paid in equal monthly installments between the first and
tenth of each and every month, the first installment being for the
month of May, 1896, shall be paid between the first and tenth of
June, 1896."
"And, in addition to the foregoing, said Horace B. Dunbar agrees
to pay the further sum of one hundred dollars between the first and
tenth of July, 1896, over and above the installment otherwise due
for said month."
"And the said Lottie E. Dunbar hereby agrees that she has not,
nor shall she have, any other claim or demand against Horace B.
Dunbar for contribution to her support and maintenance, or for the
support, maintenance, or education of said children, save and
except as fixed and limited by this agreement."
Properly signed by both parties and witnessed.
The particulars of her claim were stated as follows:
Horace B. Dunbar to Lottie E. Dunbar, Dr.
Horace B. Dunbar to Lottie E. Dunbar Dr.
1. To installments due under covenant for
alimony from December, 1898, to October
1, 1899, ten months, at $41.66 a month . . . . $416.60
Page 190 U. S. 344
2. To monthly allowance due her for support
and maintenance of Willie W. Dunbar, from
December, 1898, to October 1, 1899, ten
months at $33.33 a month. . . . . . . . . . . 333.30
--------
$749.90
The defendant pleaded his discharge in court of the state held
that it was not good.
MR. JUSTICE PECKHAM, 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,
181 U. S. 575. We
are not by any means clear that the same principle ought not to
govern a contract of this nature when, although the judgment of
divorce is silent upon the subject, it is plain that the contract
was made with reference to the obligations of the husband to aid in
the support of his wife notwithstanding the decree. The facts
appearing in this record do not show a case of any moral
delinquency on the part of the wife, and the contract, considering
the circumstances, might possibly be held to take the place of an
order or judgment of the court for the payment of the amount, as in
the nature of a decree for alimony. We do not find it necessary,
however, to decide that question in this case, because, in any
Page 190 U. S. 345
event, we think the contract as to the support of the wife is
not of such a nature as to be discharged by a discharge in
bankruptcy.
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 tables. Mr.
Justice Bradley, in
Riggin v.
Magwire, 15 Wall. 549, speaking for the Court, said
that, so long as it remained uncertain whether a contract or
engagement would ever give rise to an actual duty or liability, and
there was no means of removing the uncertainty by calculation, such
contract or engagement was not provable under the Bankruptcy Act of
1841. The fifth section of that act gave the right to prove
"uncertain and contingent demands," but it was held that a contract
such as above described was not within that section.
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, that the
value of the wife's probability of survivorship after death of her
husband might have been calculated on the principle 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? We know what
some of the factors might be in the question: inclination, age,
health, property, attractiveness, children.
Page 190 U. S. 346
These would at least enter into the question as to the
probability of continuance of widowhood, and yet there are no
statistics which can be gathered which would tend in the slightest
degree to aid in the solving of the question.
In many cases where actions are brought for the violation of
contracts, such as
Pierce v. Tennessee Coal &c. Railroad
Company, 173 U. S. 1;
Roehm v. Horst, 178 U. S. 1, and
Schell v. Plumb, 55 N.Y. 592, it is necessary to come to
some conclusion in regard to the damages which the party has
sustained by reason of the breach of the contract, and in such
cases resort may be had to the tables of mortality and to other
means of ascertaining as near as possible what the present damages
are for a failure to perform in the future; but we think the rules
in those cases are not applicable to cases like this, under the
Bankruptcy Act.
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, 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, and 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 any particular life is uncertain, the
expectation of life at a given age is reduced to a certainty when
we 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 to arrive at a
conclusion upon this point, yet there is no "practical
experience"
Page 190 U. S. 347
as to the chances of the continuance of widowhood, such as may
be referred to where the probable continuance of life is involved.
In the latter case, we have the experience tables in regard to
millions of lives, and, under such circumstances, there is, as Lord
Justice James said, almost a certainty as to the valuation to be
put on such a contingency. But under the English statute, the
thirty-first section makes every kind of debt or liability provable
in bankruptcy except demands in the nature of unliquidated damages
arising otherwise than by reason of a contract or promise, so long
as the value of the liability is "capable of being ascertained by
fixed rules, or assessable only by a jury, or as matter of
opinion." So, under that act, in
Ex Parte Neal, L.R. 14
Ch.D. 579, there was a separation deed between husband and wife,
and the husband was to pay an annuity to the wife, which was
terminable
"in case the wife should not lead a chaste life; in case the
husband and wife should resume cohabitation, and in case the
marriage should be dissolved in respect of anything done,
committed, or suffered by"
the other party after the date of the deed. The annuity was also
to be proportionately diminished in the event of the wife's
becoming entitled to any income independent of the husband
exceeding a certain amount a year. After the execution of the deed,
the husband went through bankruptcy, and it was held that the value
of the annuity was capable of being fairly estimated and was
provable in the liquidation. In that case, speaking of the
thirty-first section of the act of 1869, it was stated that "words
more large and general it is impossible to conceive; they cover
every species of contingency." It was also stated that it was
"difficult to see how any case could arise which would not come
within" the language of this act. Bramwell, Lord Justice, said:
"But for the present bankruptcy act, our decision must have been
the same as that in
Mudge v. Rowan," L.R. 3 Ex. 85; but he
said that the present bankruptcy act was very different in its
terms from the act which was in force when that case was
decided.
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
Page 190 U. S. 348
by mutual consent. It was held that this was not an annuity
provable under the Bankruptcy Act of 1849, 12th and 13th Vic. c.
106, section 175; nor a liability to pay money under the 24th and
25th Vic. c. 134, section 154.
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
depend 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 have 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
value 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. 52, 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
Page 190 U. S. 349
within the one hundred and seventy-seventh section, nor a
liability to pay money upon a contingency within the one hundred
and seventy-eighth section, and consequently the discharge in
bankruptcy was no bar to an action for a recovery of a quarterly
payment due on the bond. Martin, Baron, said:
"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 on their character, temper, and disposition, and, it may
be, a variety of other circumstances. Then, is it money payable
upon a contingency within the one 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, 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 63
a 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 him, whether then payable or
not, with any interest thereon which would have been recoverable at
that date, or with a rebate of interest upon such as were not then
payable and did not bear interest." (4) "Founded upon an open
account or upon a contract, express or implied."
Page 190 U. S. 350
In section 63
b, provision is made for unliquidated
claims against the bankrupt, which may be liquidated upon
application to the court in such manner as it shall direct, and may
thereafter be proved and allowed against his estate. This paragraph
b, however, adds nothing to the class of debts which might be
proved under paragraph
a of the same section. Its purpose
is to permit an unliquidated claim, coming within the provisions of
section 63
a, to be liquidated as the court should
direct.
We do not think that, by the use of the language in section
63
a, 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 63
a 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 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
F. 897, Circuit Court of Appeals, Third Circuit, 1901, and
Cobb
v. Overman, 109 F. 65, Circuit Court of Appeals, Fourth
Circuit, 1901. And under former bankrupt acts, the cases of
Fisher v. Tifft, 12 R.I. 56;
Heywood v. Shreve,
44 N.J.L. 94, and
Shelton v. Pease, 10 Mo. 473.
The contingency in the case of
Moch v. Market Street
National Bank, supra, was that the bankrupt was the indorser
of commercial paper
Page 190 U. S. 351
not due at the time of filing the petition, and it was held
that, under section 63
a, subdivision 4, the creditor might
prove against the estate of the bankrupt after the liability had
become fixed.
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 63
a, 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 Mass. 350, and
Goding v. Roscenthal, 180 Mass. 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 Mass. 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
Page 190 U. S. 352
should be discharged in that way. As his discharge would not in
any event terminate his obligation to support his children during
their minority, we see no reason why his written contract
acknowledging such obligation and agreeing to pay a certain sum
(which may be presumed to have been a reasonable one) in
fulfillment thereof should be so discharged. It is true his promise
is to pay to the mother, but, on this branch of the contract, it is
for the purpose of supporting his two minor children, and he simply
makes her his agent for that purpose.
In
In re Baker, 96 F. 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 F. 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 as 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
Page 190 U. S. 353
the law enjoins upon him as a duty should be released? There is
no language in the act which plainly so provides, and we ought not
to infer it.
The amendments to the Bankruptcy Act passed in 1903, 32 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 amendatory 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 children.
The judgment is
Affirmed.
