
    Nancy King, and Others, v. Mary Johnson, The Executor of Wm. King, and Others.
    One having a lawful wife and children, separated'from them, and lived in a state of adultery with a woman by whom he had several illegitimate children, and with the proceeds of their labor purchased lands, and had the conveyances executed to the natural children: Held, that the father might permit his natural children to receive the profits of their labor and might invest those profits for them ; and that such investment was no violation of the Act of 3795, prohibiting gifts and conveyances, exceeding one-fourth of his estate, by a man having a wife or children, to a woman with whom he lives in adultery, or his illegitimate children. [*626]
    Edgefield, June Term, 1836. Bill for relief, partition, &c.
    
      The plaintiff, Nancy King, was the legitimate wife of the defendant’s testator, by whom he had two sons, who are also plaintiffs. About thirty years ago, the testator separated from his wife, and soon after attached himself to the defendant, Mary Johnson, with whom he lived in a state of adultery until his death in 1835 ; and had by her a numerous family, of illegitimate children, who are parties, defendants. The defendant, Mary, and the children, assumed the name of the testator, and they all lived together as a family, of which he was regarded by themselves and the neighborhood as the head. In 1820, the testator purchased two or more tracts of land, containing together about four hundred and twenty acres, and procured the conveyances to be executed to and in the names of his illegitimate sons ; and the plaintiff’s bill prays, that these conveyances may be set aside *and the lands partitioned amongst them, according to their interests, on the ground, that they are in viola- L tion of the Act of 1195 (1 Brev. Dig. 68), which declares that all gifts and conveyances, in whatever form or manner, by one having a lawful wife or children, in favor of a woman with whom he lives in adultery or illegitimate children, shall be void, so far as the same shall exceed one-fourth part of his estate, real and personal.
    The defence concedes that the testator made the contracts to purchase the lands, and procured the conveyances to be executed to the defendants, his illegitimate sons ; but avers that the purchase-money was paid by the proceeds of the labor of the defendants, and not with the money of the testator or any separate property of his own.
    At the time the testator abandoned his wife and attached himself to the defendant, Mary, he is represented to have been poor and without credit, a drunkard and gambler, and so continued. In the language of some of the witnesses, he “ never would work,” and most of them concur in saying, that his success in accumulating property was the result of the industry and economy of Mary and his illegitimate children. About the time he made the contract for the purchase of the land, Mary, the defendant, complained that it was hard that the fruits of the labor of her children should go to others (referring obviously to the provisions of the Act before recited.) The testator conceded that her children had made the property he had, and said that he would procure the titles to be made to them, to prevent his lawful wife and children from getting the land.
    Johnston, Chancellor. A very attentive re-examination of all the testimony offered at the trial, has but served to confirm me in the impression it then made on me., that the labor of Mary Johnson’s children procured all the property, the conveyances for which were made in their names : and that any agency which Wm. King had in accumulating the property of the family, is more than compensated by the property which he claimed as his own, and disposed of by his will.
    I am satisfied by the reflection I have been able to bestow on the subject, that the natural children were so far strangers to Wm. King, that they could claim the profits of their labors; that he was at liberty to act as their trustee for investing those profits in property *for them, r*g26 and that the investment was no violation of the spirit of the Act L of 1195. That Wm. King adopting them as his own, and holding out their mother as his wife, would have been liable to creditors on the score of contract, is true; but because he could make himself liable by contract for these children, it by no means follows that he could take their earnings from them ; he could not take them from them, but by virtue of a contract with them. But they were minors and incapable of binding them•selves. Much less was he bound to take their earnings, even if he was at liberty to do so. Even if creditors could have claimed the earnings or property of the natural children in discharge of necessaries furnished on the contract of the father, (which, according to Proctor v. M’Call, 2 Bailey’s B. 302, they could not do, unless they were deceived in the relation between them,) the legitimate family who are volunteers under the father, cannot claim that as a part of his estate, which was in conscience no part of his property.
    The bill must therefore be dismissed as to all the property the conveyances for which were executed to, and stand in, the names of the natural children, and it is decreed accordingly.
    The plaintiffs appeal from the decree in this case, dismissing the bill as relates to the lauds embraced in the conveyances to the defendants, the illegitimate children of Wm. King, and move the Court to reverse the decree, on the ground:
    That those conveyances are in violation of the Act of 1795.
    
      Griffin, for the appellants,
    contended, that except the right to inherit, illegitimate children are put on a footing with legitimate. 2 Kent Com. 214. If the putative father adopt an illegimate child and take him under his care and protection, he is liable for necessaries. Hesketh v. Glowing, 5 Esp. 1ST. P. 131; 2 Kent’s Com. 193, 214. And-the relation is so well recognized, that an information will lie for the abduction of a bastard daughter under the care of her father. Bex v. Cornforth, 2 Str. 1162. See also 1 T. B. 101; 1 Bay. 68. So a step-father is not bound to maintain the child, but if he assumes the protection and care of the child, he is bound for necessaries. 3 Esp. N. P. Ca. 1; 3 Petersdorf, 130. The father in this case living with the bastard children and their mother— regarded as the head of the family, assumed all the liabilities of a lawful *6211 Paren^ an<^ consequently acquired all the rights of one, of *which -* was the right to the profits of their labor. Whatever was acquired by the joint efforts of the father and children, became legally his — as much so as if acquired by his "own labor, or derived by descent, or will. He had then no right to dispose of it contrary to the act; and the mode resorted to is plainly an attempt to evade it, which the Court should prevent.
    
      B. L. Wardlaw, contra.
    Whatever may be the law as to/the control a putative father may exercise over his bastard children, and whether he may or may not appropriate the proceeds of their labor to his own use, he may decline the right to make such appropriation. There is no rule of law to compel him to do it. He might, and probably did, stipulate with the mother that the children should have their own earnings. The evidence favors this conclusion, and there is nothing contrary to law in such an arrangement.
   Chancellor Johnson

delivered the opinion of the Court.

The decree of the Circuit Court, dismissing the plaintiffs’ bill, is founded on the conclusion that the facts on which the defence rests are true, and upon a careful review of the evidence taken on the trial that seems to be the necessary conclusion.

On the argument here, error in the conclusion as to the matters of fact has not been much pressed; but conceding that to be correct, it has been insisted that as the testator took these children under his immediate care and protection, and provided for and treated them in all respects as a father would his legitimate children, the obligations and duties of legitimate children devolved on them ; consequently in law he was entitled to the proceeds of their labor, and the application of them to the purchase of lands for their use was a violation of the act referred to.

The obligations between parents and children are reciprocal. On the parent devolves the duty of maintaining, educating and providing for the child ; in return for which the child owes obedience and assistance during minority, and reverence and respect always; and it follows necessarily, that if in law either are absolved from these obligations, so also is the other. Now, it is very clear that the putative father is not entitled in law to the custody of liis natural child, in opposition to the claims of the mother; nor is he bound to provide for it further than is required by express enactments* of the legislature. 2 Kent Com. 118, 1st Ed. r*ggg The child cannot inherit from the father, and the extent to which L the father can provide for his illegitimate child, is limited by the Act before referred to. The father is not, therefore, entitled in Jaw to the services of his natural child. It is said, however, that when a father assumes and discharges the duties of a parent, corresponding duties arise on the part of the natural child ; and this is true so long as these-relations exist. But these relations are merely conventional, and being voluntary, may be dissolved at pleasure. Not so as to the relations between the father and his legitimate children. The obligations between them are imposed by law, and neither can be absolved from them. The right of the putative father to the custody and services of his natural child, must therefore arise out of contract, in which the parties are at liberty to stipulate for themselves. There is certainly nothing in these relations to prevent the father from rewarding the child for its labor, or being its agent to invest the proceeds; on the contrary, in despite of the stern policy which alienates the bastard from his putative father, nature has bound them together by ties which cannot be severed; and it is impossible to resist the feeling that there is a moral duty imposed on the father, to aid the child when he can do so without violating the law, or doing wrong to others.

I am well aware that there is much danger of abuse in the application of this principle, and that without great circumspection it will be made a cover for evading the Act, but of its correctness there can be no question ; and abuses may be guarded against by requiring clear and unequivocal evidence of the fairness and reasonableness of the transaction. Of this, the present case may serve as an example; for it is apparent that the defendants’ testator was a mere drone in the hive, and that the land conveyed to the defendants is a very inadequate compensation for the long and faithful services of the defendants, out of the proceeds of which it was paid for.

The case of Hesketh v. Growing, 5 Esp. N. P. Rep. 131, has been referred to, for the position that the putative father is liable for necessaries provided for a bastard child whom he had adopted as his own: and hence it is concluded that out of this relation all the obligations of parent and child arise. And this is put expressly on the ground of an implied contract, arising out of the defendant holding himself out to the world as *6991 being- bound to provide *for the child, and not on the footing- of -I parent and child; and the same rule would obtain in the case of a foundling or other stranger.

There are doubtless many cases in which a quasi consanguinity between the putative father and his bastard child, would be recognized; as in Haines v. Jeffel, 1 Lord Ray. 68, in which it is said that the father and illegitimate daughter are within the degrees of consanguinity in which marriages are .prohibited. So in Rex v. Cornforth, 2 Str. 1162, where it is held that an information would lie for the abduction of a bastard infant daughter being under the care of her putative father. But these are exceptions to the general rule, arising from moral and necessary causes, and by no means impugn the rule itself.

It is therefore ordered and decreed that the appeal be dismissed, and that the decree of the Circuit be, and the same is, hereby affirmed.

Chancellors De Sausstjre, Harper and Johnston, concurred.  