Carlson v. Bartels , 143 Neb. 680 ( 1943 )

Simmons, C. J.

This is an action in equity, brought in the district court for Wayne county, wherein Helen Kahler as next friend of her two minor children sought for them a judgment that they are the children of Neis Carlson, deceased, that his estate is liable for the care, support and maintenance of said children; that the amount be determined and charged against his estate as a lien; that a trustee be appointed to hold, manage and disburse funds allowed, and for equitable relief. The Consul of Sweden intervened in opposition to plaintiffs’ petition to assert the rights of brothers and sisters of the deceased (nationals of Sweden). The defendant administrator and Consul demurred on the ground that a cause of action was not stated, and the Consul on the added ground that the district court was without jurisdiction of the subject-matter of the action. The demurrers were overruled. The administrator and Consul answered separately, denying that the deceased was the father of the children, and the Consul alleging in his answer the same grounds as stated in his demurrer. Trial was had, a finding for the plaintiffs made and decree entered holding that the plaintiffs are the children of the deceased, that his estate was liable for tlieir support, maintenance and education, and the sum of $3,250 was fixed as the amount to be paid into court, to be held subject to the court’s order for that purpose. After motions for new trial were overruled, defendants appeal. We reverse the judgment of the trial court.

Three questions are presented: The jurisdiction of the district court over the subject-matter of the action; the holding that paternity was proved; and the right to recover against the estate of the deceased father.

The following facts are admitted by the pleadings: Plaintiff Doris Fay Carlson was born October 4, 1933, and Alma. May Carlson was born December 18, 1938, both at a hospital in the city of Wayne, in Wayne county, and both the children of Helen Kahler; Helen Kahler was at all times involved herein the wife of one Ed Kahler; Neis Carlson was an unmarried man, a farmer, residing near Wayne, who died intestate October 9, 1940; his estate is being probated in Wayne county, and defendant is the administrator.

Established by the evidence of friends, neighbors, relatives, peace officers and others are the following facts. Helen Kahler and Ed Kahler had two children, not involved 'in this action. Mr. and Mrs. Kahler separated in 1931 following court action to compel him to support his wife and children, and thereafter Ed Kahler disappeared and has not since been seen by any one in or about his old haunts where his wife continued to live during all the time involved in this action. ' In May, 1932, Mrs. Kahler, with the two Kahler children, went to the near-by home of the deceased as his housekeeper, and remained there until Carlson’s death.. On each occasion, when the two children (plaintiffs) were born, Carlson took Mrs. Kahler to the hospital, paid the-medical and hospital expenses, told the doctor he was the father in each instance, had the older child baptized by his. minister, told friends and relatives that the plaintiffs were1 his children, and cared for them in'his home as his own. Two policies of insurance were taken out in which Carlson and Mrs. Kahler were designated “husband” and “wife.” ■Carlson and Mrs. Kahler went with the children to visit, friends, to town for marketing and generally lived at home1 and in the community as though they were husband and wife, although there were those who knew they were not.. Plaintiffs have no estate, income or means of support.

It was established on cross-examination of the administrator that contingent claims on behalf of Alma May Carlson and Doris Fay Carlson were filed in the estate matter1 'in county court.

Defendant offered the testimony of Carlson’s sister and her husband to the effect that in 1940 the deceased denied the paternity of the children.

We come first to the question of the jurisdiction of the-court over the subject-matter of the action. The question was first raised by demurrer and again by answer. Intervener Consul argues that, under the provisions of section 16, art. V of the Constitution of the state of Nebraska, and' section 27-503, Comp. St. 1929, this action is one where the1 original jurisdiction is in the county court.

“Jurisdiction of the subject-matter, in a court of record, is to be tested by the authorized extent of the powers of the-court in respect of the cause of action before it.” Brandeen v. Lau, 113 Neb. 34, 201 N. W. 665. “Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceedings in question belong.” 21 C. J. S. 36, sec. 23, 15 C. J. 734. See 14 Am. Jur. 368, sec. 168. See, also, 21 C J. 34; 30 C. J. S. 327, sec. 9; 1 Pomeroy, Equity Jurisprudence (4th ed.) 153. "The test for determining jurisdiction is ordinarily the nar ture of the case, as made by the complaint, and the relief sought.” 15 C. J. 734.

We come then to the question as to whether or not the ultimate relief sought, i. e., a judgment for support, is within the power of any equity court to grant. In Craig v. Shea, 102 Neb. 575, 168 N. W. 135, such an action was held to be properly maintainable in equity against a living alleged father. May an action in equity be maintained against the representative of the estate of a deceased alleged father by children born out of wedlock to obtain money for their support, maintenance and education for the period subsequent to the father’s death?

At common law the father is under no legal liability to support his children born out of wedlock. 7 C. J. 955; 10 C. J. S. 84, sec. 18(c) ; 7 Am. Jur. 673, sec. 69. This is conceded by the plaintiffs to be the common-law rule. Plaintiffs argue that we should refuse to follow the common-law rule and hold that present day conditions and needs require that the father of a child born out of wedlock is under a nonstatutory obligation to support the child. Plaintiffs cite Doughty v. Engler, 112 Kan. 583, 211 Pac. 619, 30 A. L. R. 1065. The Kansas court has, however, held that their decision is a minority view. See Myers v. Anderson, 145 Kan. 775, 67 Pac. (2d) 542. That case goes no further than to hold that the living father is so liable.

Plaintiffs next argue that there is a statutory liability for support, basing their contention on our decision in Craig v. Shea, supra. In that case the child of a married woman sought in equity a decree determining her father, and for support from her alleged father. We there held that under the provisions of the pauper’s statute, now as amended, section 68-101, Comp. St. Supp. 1941, and the child abandonment act now section 28-458, Comp. St. 1929, the plaintiff was entitled to support from the actual father. We held that “the legislature intended to remove the restrictions imposed by the common law, to impose a duty not theretofore existing” and that “the burden of support of an illegitimate child of a married woman should, as in the case of an illegitimate child of an unmarried woman, be cast upon the man responsible for its existence.” The decision recognized that the common-law nonliability rule was in force in Nebraska, save as modified by statute, and held that it had been changed by legislative action only, however, to the extent to cast the burden of support of a child born out of wedlock to a married woman upon the father “as in the case” of such a child born to an unmarried woman. The decision does not go beyond that point and does not hold that the estate of the father, when deceased, is liable for that support in an action brought after the alleged father’s death. The burden at that time upon the person adjudged to be the father of the child of an unmarried woman was to “stand charged with the maintenance thereof in such a sum or sums as the court may order and direct, * * * and * * * to give security to perform * * * ” and if he failed to give such security “he shall be committed to the jail * * * to remain till he shall comply with the order.” Rev. St. 1913, sec. 362. Such statutes are generally regarded as the exclusive basis of liability. 7 Am. Jur. 673, sec. 69; 10 C. J. S. 84, sec. 18(c).

In the absence of a statutory provision a bastardy proceeding does not survive against the personal representative of an alleged father. 7 Am. Jur. 691, sec. 100; 7 C. J. 972; 10 C. J. S. 150, sec. 47. Under the holding in Craig v. Shea, supra, the child of a married woman born out of wedlock was held to be entitled to the same right of support as a child born to an unmarried woman. To hold that plaintiffs had a cause of action against the estate of a deceased father would be to accord to them a greater right of support than that granted to the child of an unmarried woman. There is no statutory basis for such a holding.

But plaintiffs argue that they have a continuing right to support, that they could have proceeded against their father in his lifetime to compel that support, that it was not done because he willingly furnished it and that we should grant the support order against the estate. This we may not do. There is no authority in law for so doing. To grant these plaintiffs that relief would be to accord to children born out of wedlock greater rights than accorded by law to children born in wedlock. Children born in wedlock also have a continuing right to support during the father’s lifetime,, but they have no rights after his death save those that are granted by will or by statute to be accorded to them in the administration of the estate of the deceased father.

Throughout plaintiffs’ brief runs the argument that we should, by judicial opinion, set aside the established rules of the common law as no longer in accord with the public policy of the state, and declare rules that would permit these plaintiffs to have support and maintenance from the estate of their father in this proceeding. This question, as other questions, must be determined as a matter of law, not sentiment.

The questions of the descent and distribution of estates and the care and maintenance of children of a deceased parent are matters determined by statutory provisions. . The legislature has determined those matters and their acts constitute the determined public policy of this state. The legislature has determined when a child born out of wedlock may inherit property and who shall be his heirs. Comp. St. 1929, secs. 30-109, 30-110. Provision is made for punishment of the parent who abandons such a child. Comp. St. 1929, sec. 28-458. The legislature in 1941 enacted a comprehensive act to provide among other things “for the support of children born out of wedlock.” Laws 1941, ch. 81, Comp. St. Supp. 1941, secs. 43-701 to 43-717. The legislature did not in the act provide for “support” under the circumstances here shown. This act goes only to the extent of providing: “Any judicially approved settlement or order of support made by a court having jurisdiction in the premises' shall be binding on the' legal representatives of the father or mother in the event of his or her death, to the ¿ame extent as other contractual obligations and judicial .judgments or decrees.” Comp. St. Supp. 1941, sec. 43-710. The act clearly presupposes action brought against and', orders operating on the alleged father during his lifetime, and fastens an obligation upon his estate only in those cases that have proceeded to a “judicially approved settlement or ■order of support made by a court having jurisdiction in the premises.” No such settlement or order was had here during Carlson’s lifetime. This act is the last expression of legislative policy in the matter. We are not authorized to extend the provisions of the statute in the manner here requested.

It necessarily follows that an equity court does not have the power to grant the ultimate relief here sought.

■ Here plaintiffs seek a decree determining that they are the children of Neis Carlson, deceased, “in order that liability for her (their) care, support, maintenance and education and the amount necessary and required for such purpose may be adjudged and decreed herein ágainst the estate” of Carlson.

Has the district court, and this court on appeal, the jurisdiction to determine that foundation question?

By the provision of section 20-21,140, Comp. St. 1929, commonly known as the declaratory judgments act, the district court and this court have power “to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Under such acts it has been determined that the courts have jurisdiction to determine •the parentage of a child. Morecroft v. Taylor, 225 App. Div. 562, 234 N. Y. Supp. 2; Miller v. Currie, 208 Wis. 199, 242 N. W. 570. The objection of the Consul to the jurisdiction of the court over the subject-matter was accordingly properly overruled, and the demurrers were properly overruled.

The declaratory judgment act clearly gives the courts a discretion as to whether or not the jurisdiction to declare a “status” shall be exercised. The courts are not 'in accord on criteria by which it may be determined whether or not the discretion shall be exercised. See Borchard, Declaratory Judgments, Part II, ch. V, Discretion, p. 293. It has been generally held that the granting of declaratory -relief is a matter within the judicial discretion of the court, to be exercised or not according to the circumstances of thé case under consideration. Annotation, 87 A. L. R. 1212.

This record discloses that the estate of Carlson is being administered in the county court of Wayne county, a court that has “original jurisdiction in all matters of probate, settlement of estates of deceased persons,” etc. Const, art. V, sec. 16; and that there are pending in that administration proceeding contingent claims (their nature not disclosed) filed on behalf of these two plaintiffs. It may well be that the county court, in the proper exercise of its “original jurisdiction” may be called upon to determine the question of whether or not plaintiffs are the children of the deceased Carlson. That court, in such an event, should not be confronted with a decision of this court, determining that question. We accordingly decline to determine that question in this proceeding.

The judgment of the trial court must accordingly be reversed and the action dismissed for the reasons here stated.

Reversed and dismissed.