This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The liability of one for the support of his wife and children is not a debt and is certainly not a provable debt.1 Accordingly, the weight of authority, including the supreme court of the United States,2 has held that the liability of one to support his wife, even if such liability has resulted in a decree of alimony,3 is not barred by a discharge in bankruptcy. The fact that the decree of alimony is for a lump sum payable in instalments,4 or that the discharge is sought as against over-due instalments,5 does not alter the rule. The fact that a judgment for alimony has been recovered and that subsequently, in another jurisdiction, a judgment has been recovered upon such original judgment, does not prevent the second judgment from being in effect a judgment for alimony; and a discharge in bankruptcy is not a bar as against such second judgment.6
5 Hayer v. Comstock, 115 la. 187, 88 N. W. 351. (The note was here listed and proved in bankruptcy.)
See Sec. 3159 et seq.
6 Irons v. Bank, 27 Fed. 501; Carey v. Meyer, 70 Fed. 026; Marr v. Bank, 72 Tenn. (4 Lea) 578.
7 Irons v. Bank, 27 Fed. 501.
8 Carey v. Mayer, 70 Fed 026 In this case A had subscribed to capital stock in a corporation and had not paid the corporation fully therefor. The corporation became insolvent and made an assignment for the benefit of creditors. A then filed a petition in bankruptcy and obtained a discharge. Then a call was made for payment on stock. It was held that A's discharge in bankruptcy was a bar to liability for such stock.
9 Dight v. Chapman, 44 Or. 265, 65 L R. A. 703, 75 Pac 585.
10 First National Bank v. Mfg Co, 127 Mass. 563; Old Colony Boot & Shoe Co. v. Parker-Sampson-Adams Co., 183 Mass. 557, 67 N. E. 870.
11 Dycus v. Brown, 135 Ky 140, 28 L R. A (N.S.) 100, 121 S W. 1010
12 In re Neff, 157 Fed. 57, 28 L R. A. (N.S.) 340.
1 Wetmore v. Markoe, 196 U. S. 68, 49 L. ed. 390; Menzie v. Anderson, 65 Ind. 239; Romaine v. Chauncey, 129 N. Y. 566, 26 Am. St. Rep. 544, 14 L. R. A. 712, 29 N. E. 826; In re Williams, 208 N. Y. 32, 46 L. R. A. (N.S.) 719, 101 N. E 853.
"Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction." Audubon v. Shufeldt, 181 U. S. 575, 577, 45 L. ed. 1009.
2 Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009.
3 England. In re Hawkins , 1 Q B. 25; Kerr v. Kerr , 2 Q. B 439; Linton v. Linton, L. R. 15 Q B Div 239.
United States. In re Shepard, 97 Fed. 187; In re Anderson, 97 Fed. 321; In re Nowell, 99 Fed. 931; Turner v. Turner, 108 Fed. 785.
Illinois. Barclay v. Barclay, 184 111. 375, 51 L. R A 351. 56 N E 636; Deen v Bloomer, 191 111 416. 61 N. E 131; Welty v. Welty, 195 III 335. 88 Am. St. Rep. 208, 63 N E 161
New York. In re Williams, 208 N
Y. 32, 46 L. R A (NS.) 719. 101 N. E 853.
Ohio. Lemert v. Lemert, 72 O. S. 364, 74 N E 194
Vermont Noyes v Hubbard, 64 Vt. 302, 33 Am St. Rep. 928, 15 L. R A. 394, 23 Atl. 727.
Contra, In re Houston, 94 Fed. 119; In re Van Orden, 96 Fed 86; In re Challoner, 98 Fed 82 (overdue instalments under an Illinois decree); Fite v. Fite, 110 Ky 197, 53 L R. A. 265, 61 S W 26 (where the state law makes it an ordinary debt); Arring-ton v. Arrington 131 N. Car 143, 92 Am. St. Rep 769, 42 S E 554. (This last case was so decided because the court had already decided that this decree was a final judgment. Arrington v Arrington, 127 N Car 190. 80 Am St Rep 791, 52 L. R. A. 201, 37 S E 212 And they held themselves bound by such decision to treat a subsequent discharge in bankruptcy as barring such decree. The original decree of alimony was rendered in Illinois )
4 Welty v. Welty, 195 III 335, 88 Am St Rep 208. 63 N. E 161
5 Audubon v Shufeldt, 181 U S 575, 45 L ed 1009; In re Anderson, 97 Fed. 321; Lemert v. Lemert, 72 O S. 364, 74 N E 191
6 In re Williams 208 N. Y 32. 46 L R A ( N S ) 719, 101 N E. 853.
A contract by A to pay a certain sum annually to his divorced wife as long as she remains unmarried, and to support their two children till they came of age, is not barred by A's discharge in bankruptcy.7 The value of the wife's interest under the contract depending, as it does, on the double contingency of remarriage or death, is impossible to ascertain;8 and his liability to support his children, being a "contract to do that which the law obliged him to do," could not be barred by such discharge.
A discharge does not bar an order of court requiring payment for the support of minor children;9 nor a judgment in bastardy requiring the putative father to pay a certain monthly sum to the mother of the child for its support.10 However, a final judgment for the total amount due under a prior order directing a putative father to make certain monthly payments to his bastard child, has been held to be barred by his discharge in bankruptcy.11 Liability of a father to reimburse a wife for money expended by her in support of their minor child has been held to be an ordinary debt, and hence barred by discharge.12
Before the amendment of February 5, 1903, the federal bankrupt act did not contain any express provision as to the effect of a discharge upon the liability of a husband to support his wife or to pay alimony to her; and up to that time, the question was determined upon the general theory of alimony; and the decisions which held that alimony was not a provable debt were based upon the theory that it was not a fixed liability, that it did not arise on contract, and that it was not a debt in the proper sense of the term.13 By the act of February 5, 1903, it was expressly provided that a discharge in bankruptcy did not release a bankrupt from liability for alimony, or for maintenance or support of wife or child.14 This amendment was merely declaratory of the prior law under the act of 1898.15
7 Dunbar v. Dunbar, 190 U. S. 340, 47 L. ed 1084 [affirming, 180 Mass. 170, 94 Am. St Rep. 023, 62 N E. 24S]
8 Seo also, Mudge v. Rowan, L R. 3 Ex. 85.
9 In re Hubbard, 98 Fed. 710; Rush v Flood, 105 111 App. 182
10 In re Baker, 96 Fed. 954; Hawes v. Cooksey, 13 Ohio 242
11 McKittrick v. Cahoon, 89 Minn. 383, 62 L. R. A. 757, 95 N. W. 223. 12 Rush v. Flood, 105 111. App. 182.
13 Audubon v. Shufeldt, 181 U. S. 575, 45 L ed. 1009.
14 See Sec. 3131.
15 Wetmore v. Markoe, 196 U. S. 68, 49 L. ed. 390.