In re Riff

TRIEBER, District Judge (after stating the facts as above). As this is a claim against the bankrupt’s estate, it must be one which could be recovered in an action against the father, if bankruptcy had not intervened, and it must uot be fraudulent against his father’s creditors ; the trustee representing the interests of both the bankrupt and the creditors. The law is well settled that it is the duty of the parents to provide for the maintenance of their children while under age, and, as a reciprocal duty, the services of the child, during his minority, belong [408] to the parents, including the earnings of the child. It is equally, well settled that a parent may emancipate his infant children, and they are then authorized to collect for their services rendered to strangers. That the emancipation may be either express or implied is conceded by counsel for the trustee, leaving the only question involved whether, upon the facts as hereinbefore stated, an infant can recover, under an oral agreement, for services rendered his parent while living under his roof, although paying for his board and lodging out of wages paid him by his father, [ 1 ] The emancipation is express if, with the consent of the parent; the disabilities of the infant are removed by the judgment of a court of competent jurisdiction, as provided by the statutes of Arkansas (section 1309, Kirby’s Digest of the Statutes of Arkansas), or if made by contract for a valuable consideration, and, if the latter, is as irrevocable as any other contract. Abbott v. Converse, 4 Allen (Mass.) 530. It is implied if the parent has .discharged himself of his obliga'tion to support the child by denying him a home and forcing him to labor abroad for his living, or gives or sells him his -time. Nightingale v. Withington, 15 Mass. 272, 8 Am. Dec. 101; Whiting v. Earle, 3 Pick. (Mass.) 201, 15 Am. Dec. 207; Morse v. Welton, 6 Conn. 547, 16 Am. Dec. 73; Beaver v. Bare, 104 Pa. 58, 49 Am. Rep. 567; Watson v. Murray, 54 Ark. 499, 505, 16 S. W. 293. It may also be implied when the parent allows the child to make his own contracts and collect and retain his wages. Fairhurst v. Lewis, 23 Ark. 435; Vance v. Calhoun, 77 Ark. 35, 90 S. W. 619, 113 Am. St. Rep. 111; Biggs v. St. L., I. M. & S. Ry. Co., 91 Ark. 122, 120 S. W. 970; Robinson v. Hathaway, 150 Ind. 679, 50 N. E. 883. As there is no express emancipation in this case, but only an implied one, the question is whether that is sufficient to justify a recovery when the services were performed for the parent; the minor at the time living with his parents, but paying for his board out of the wages paid him by the parent. The authorities on this question are conflicting, but an examination of the reasoning upon which the conflicting decisions are based will aid in reaching a 'correct conclusion. As there is no question of rights of -third parties, dependent upon the contract of the minor, involved in this case, it is unnecessary to consider the effect of a revocation of an implied emancipation in a case of that nature. [2] It is well settled that an implied emancipation, as between parent and child, is merely executory, and therefore is revocable. Clark v. Fitch, 2 Wend. (N. Y.) 459, 20 Am. Dec. 639; Stovall v. Johnson, 17 Ala. 14; Dowell v. Applegate (C. C.) 15 Fed. 419. In Stovall v. Johnson it appeared that the father permitted his minor son to cultivate certain land for his own benefit, and it was held that such a promise was revocable. The court held: “It appears to me that if a father, without any consideration, or merely in consideration of natural love and affection, emancipates his son in this way, still retaining him in his house as one of his family, the emancipation is a nullity and may be revoked at pleasure. It would be hard upon the father if it were not so, .since he is legally responsible for his support, and morally responsible for the parental control due to. his son. The father’s [409] promise to give the son his time, or his gift to his son of a portion of the time of his minority, is executory in its very nature until tile time lias fully elapsed, and in the meantime the father may revoke it at pleasure; certainly so, if the son remains in the father’s family. * * * As the father may effectually deprive the son of the fruits of his labor, it would seem to follow that he may take them to himself under his general right to his son’s services.” In Tuite v. Tuite, 72 N. J. Eq. 740, 66 Atl. 1090, the children claimed that they had been promised by their mother a partnership in the business, in consideration-of their services, and it was held by Vice Chancellor Garrison that: "If they worked for her [the mother] under her direction * * * they but did their duty to her, and there is therefore no possibility of importing any consideration into any such agreement as they allege was made.” In Dowell v. Applegate, supra (Sawyer, Circuit Judge; Deady, District Judge, concurring), the same question arose; creditors attacking the conveyance made to his children, -who were minors, for services rendered to the parent, upon the ground that such conveyance was voluntary, and therefore void as against creditors. The court said: "The only consideration was a promise of a father to his several children that if they would remain at home with him, and work on the farm until they should, respectively, become of age, or marry, he would do by them as he had done by the older brothers — convey to them a part of his lands, putting them all upon an equality, wiihout agreeing to convey any specific tract. Their remaining with him was nothing more than they were bound to do under the law. They therefore neither gave nor promised any consideration.” In the note to that case by Professor Ewell a number of authorities are cited on the proposition that: "Services rendered by minor children to parents do not constitute a valuable consideration for a conveyance by the parents to the children.” 15 Fed. 427. [3] It is also a well-recognized principle of law that when a party merely does that which by law he is obligated to do he cannot demand any additional consideration therefor, even if he obtained a promise, as the law will regard it as nudum pactum and will not lend its process to aid in the wrong. Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578, 15 S. W. 844; Main Street Co. v. Los Angeles Co., 129 Cal. 301, 61 Pac. 937; Goldsborough v. Gable, 140 Ill. 269, 29 N. E. 722, 15 L. R. A. 294; Ayres v. Chicago, etc., Ry. Co., 52 Iowa, 478, 3 N. W. 522; Wescott v. Mitchell, 95 Me. 377, 50 Atl. 21; Railway Co. v. Grafton, 51 Ark. 504, 11 S. W. 702, 14 Am. St. Rep. 66; Vanderbilt v. Schreyer, 91 N. Y. 392; Carpenter v. Taylor, 164 N. Y. 171, 58 N. E. 53; Alaska Packing Ass’n v. Domenico, 117 Fed. 99, 54 C. C. A. 485. [4] The only evidence introduced is that of the father and son, and from the nature of the case it is almost impossible for the trustee or the creditors to adduce evidence to the contrary. To permit a recovery in such a case would enable insolvent debtors to use their children as a cover to defraud their creditors. Whenever acts of parties are [410] of a nature that, if permitted, would open the doors to fraud, the law will treat them as frauds at law, regardless of the intention of the parties. Robinson v. Elliott, 22 Wall. 513, 525, 22 L. Ed. 758. The authorities holding that such contracts are valid and enforceable have been carefully examined, and, although some of them are by courts of the highest standing, the grounds upon which they are based do not appeal to the court as sound or convincing. The order of the referee disallowing the claim is approved.