Welch's Appeal from Probate

Foster, J. The first question in this case, reserved for the consideration and advice of this court, is, whether the appellant is entitled to recover the expense of supporting the child referred to in the report. George L. Welch, against whose estate this claim was presented, died on the 6th of July, 1874. At the April term, 1873, of the Superior' Court for the county of Middlesex, the appellant was divorced from the said George L. Welch, to whom she had previously been lawfully married. The custody of a minor child, Howard B. Welch, of the age of two and a half years, the offspring of the marriage, was by the court awarded to the appellant. No alimony was asked for in the petition, nor was any granted by the court, but in consideration of the omission to ask for alimony, the said George L. Welch promised to pay the appellant the sum of $800, for which sum he gave her his note on the first of July, 1873, and as to the payment of .the same no question is made. After the divorce was obtained, the appellant supported [350] said minor child at her own expense, from the 18th of May, 1873, till the 6th of July, 1874, when the said George L. Welch died. It is for the support furnished during this period of time that a recovery is sought. Payment of the claim is resisted on the ground that the father’s liability, to a third person, for support furnished his minor children when taken from him, depends upon a promise, express or implied; that without such promise there is no liability; that the divorce separated the husband from the wife, and terminated all claims which she had upon him by virtue of that relation; that when she applied for the custody of the child and obtained it, without asking for a decree for its maintenance, she must be deemed to have assumed the burden of its support, and relinquished, for the time being, all claim upon the father; that the provision made in lieu of alimony was probably intended and received as sufficient for the child’s support, and that it is not found by the committee that the child was in need of maintenance. The parental relation is not affected by a decree of divorce, which merely dissolves the marriage. The previous duties and obligations continue as before as between parents and children. In this case the court which granted the divorce, impaired, to some extent, the rights of the father, by giving to the mother the custody of their infant child. We think the estate of the father is liable for the amount stated in the report. We think the case distinguishable from the case of Finch v. Finch, 22 Conn., 411, where the right of the mother, after a divorce, to recover against the father for the support of the children, was denied. The principles enunciated by this court in the case of Stanton v. Wilson, 3 Day, 37, certainly sustain the plaintiff’s claim. Moreover, the statute of 1854 exercises an important, if not a controlling, influence over this case. It was passed since the decision of Finch v. Finch, and provides that, upon the dissolution of a marriage by divorce, the parents of a minor child of such marriage, in need of maintenance, shall maintain it according to their respective abilities, etc. Gen. Statutes, p. 189, sec. 9. It appearing of record that the Superior Court has found [351] that the sum of $118 would ho, and is, a just and fair proportion of the expense ot supporting the child for said George L. Welch and his estate to pay, we advise judgment for that sum in favor ot the appellant. The second question, and the only remaining one reserved for our advice, is, whether the appellant is entitled to recover upon the facts found relating to the life insurance policy for $1,000, and if so, what is the rule of damages. The' policy in question was taken out in 1865, during the continuance ot the marriage, and lapsed for the non-payment of the premium, after the divorce, in 1873. The facts con nected with this matter are set forth in detail in the report, but we deem it unnecessary to recapitulate them, because we think they furnish the appellant no legal grounds of claim against the estate of the deceased. Upon the two questions thus reserved for onr advice, we advise the court below to answer the first question in the affirmative, and the second in the negative. In this opinion the other judges concurred.