The defendant in error, being the plaintiff below, brought her action in October, 1899, against the plaintiff in error, in the municipal court of Boston, to recover moneys alleged to be due upon a contract, which was set forth in the complaint. Issue was joined and the case tried before a single justice, and judgment ordered for the defendant, with costs. An appeal was taken to the superior court of the county of Suffolk, and that court ordered judgment for the plaintiff for one branch only of her claim. The case was reported to the supreme judicial court for the commonwealth, and that court ordered the court below to enter judgment for the plaintiff for both branches of her claim (180 Mass. 170, 62 N. E. 248), and the case was remanded to the superior court for the purpose of entering such judgment. Pursuant to the directions of the supreme court, the superior court did enter judgment against the defendant for both branches of her [190 U.S. 340, 341] claim, for the sum of $851.60 and costs. The defendant then obtained a writ of error from this court, directed to the superior court of Massachusetts, where the record remained.
The case shows these facts: The parties were husband and wife, who, in 1889, were living apart, the husband in Ohio and the wife in Massachusetts. In May, 1889, the attorney for her husband came to Massachusetts and saw Mrs. Dunbar, and told her that her husband was about to seek a divorce from her. The wife at this time had no means, and the two sons of the marriage, then respectively nine and twelve years old, were living with her. The purpose of the visit of the attorney was to obtain some assurance from her that she would not contest the case, and, if she did not, that the husband would make provision for aiding in the support of herself and her sons until they arrived of age. The wife denied any intended desertion of her husband, but the result of the negotiations after the wife had taken counsel of friends was to give assurance to the attorney that no defense would be interposed if he made some suitable provision for herself and her children.
Upon the return of the attorney to Ohio, a suit for divorce was commenced by the husband, and the summons served by publication. No appearance was made and there was no opposition to the decree of divorce, which was obtained in July, 1889. It adjudged that the marriage contract theretofore existing between the parties was thereby dissolved, and both parties released from the obligation of the same, and 'that the custody of the children of such marriage, one boy, Harry H. Dunbar, aged twelve years, and Willie W. Dunbar, aged nine years, be, and the same are, to remain in charge and under the control of the said Lottie E. Dunbar, the said Horace B. Dunbar to have the privilege of seeing said children at all reasonable times.'
The ground of divorce was stated, and the court found 'upon the evidence adduced that the defendant has been guilty of wilful absence for more than three years last past from plaintiff, and that, by reason thereof, the plaintiff is entitled to a divorce as prayed for.'
After the divorce the husband sent to a friend of his wife, to be delivered to her in performance of his agreement, a written [190 U.S. 340, 342] contract, in which he bound himself to pay to Lottie E. Dunbar, of Ashburnham, Mass., $500 yearly, so long as she remained unmarried, in monthly instalments. In that contract he also agreed to pay 'to our children, Harry H. Dunbar and Willie W. Dunbar, the sum of $250 each, yearly, until they each attain the age of fourteen years; after that age they are to be paid by me such extra allowance as will give them a good and sufficient education befitting their station in life, and a suitable maintenance until each attains the age of twenty-one years.' This writing was signed by the husband and acknowledged before a notary public of Hamilton, Ohio.
Payments upon this contract were made by the husband, but in 1896 they had become somewhat in arrears, and disputes arose as to the validity of the agreement. Thereafter another contract was entered into and payments were made as called for in that contract until some months prior to December 2, 1898. On such last-named date the defendant was adjudged a bankrupt, on his voluntary petition in bankruptcy, in the United States district court in bankruptcy, southern district of Ohio, western division, and on April 24, 1899, was discharged from all debts and claims provable, under the act of Congress relating to bankruptcy, against his estate, existing on the 2d day of December, 1898
In the schedule of the defendant it appeared that he named the plaintiff as a creditor, as follows: Lottie E. Dunbar, Charlestown, Mass. $ 540
Alimony due up to present time. Lottie E. Dunbar, Charlestown, Mass. 1,300
Alimony payable yearly.
The plaintiff, at the first meeting of the creditors in bankruptcy proceedings, which was held before a referee appointed therein, appeared by an attorney, who produced and filed his power of attorney, and filed her claim for $691.63, for instalments on the contract due to December 2, 1898. The husband had paid nothing on the contract since some time before December 2, 1898, and finally the wife commenced an action to recover the amounts due thereon. [190 U.S. 340, 343] The following is a copy of the contract sued on:
Properly signed by both parties and witnessed.
The particulars of her claim were stated as follows:
Horace B. Dunbar to Lottie E. Dunbar, Dr.
1. To instalments due under covenant for alimony from December, 1898, to October 1, 1899, ten months, at $41.66 a month $416 60 [190 U.S. 340, 344] 2. To monthly allowance due her for support and maintenance of Willie W. Dunbar, from December, 1898, to October 1, 1899, ten months, at $33.33 a month 333 30 ___ $749 90
The defendant pleaded his discharge in court of the state held that it was not good.
Messrs. James Hamilton Lewis, George Fred Williams, and James A. Halloran for plaintiff in error.
Messrs. Frank H. Stewart and John Oscar Teele for defendant in error.
Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court:
Had the provisions of this contract, so far as contracting to pay money for the support of his wife is concerned, been embodied in the decree of divorce which the husband obtained from his wife in Ohio on the ground of desertion, the liability of the husband to pay the amount as alimony, notwithstanding his discharge in bankruptcy, cannot be doubted. Audubon v. Shufeldt, 181 U.S. 575 , 45 L. ed. 1009, 21 Sup. Ct. Rep. 735. We are net by any means clear that the same principle ought not to govern a contract of this nature when, although the judgment of divorce is silent upon the subject, it is plain that the contract was made with reference to the obligations of the husband to aid in the support of his wife, notwithstanding the decree. The facts appearing in this record do not show a case of any moral delinquency on the part of the wife, and the contract, considering the circumstances, might possibly be held to take the place of an order or judgment of the court for the payment of the amount, as in the nature of a decree for alimony. We do not find it necessary, however, to decide that question in this case, because, in any [190 U.S. 340, 345] event, we think the contract as to the support of the wife is not of such a nature as to be discharged by a discharge in bankruptcy.
Conceding that the bankruptcy act provides for discharging some classes of contingent demands or claims, this is not, in our opinion, such a demand. Even though it may be that an annuity dependent upon life is a contingent demand within the meaning of the bankruptcy act of 1898 (30 Stat. at L. 544, chap. 541, U. S. Comp. Stat. 1901, p. 3418), yet this contract, so far as regards the support of the wife, is not dependent upon life alone, but is to cease in case the wife remarries. Such a contingency is not one which, in our opinion, is within the purview of the act, because of the innate difficulty, if not impossibility, of estimating or valuing the particular contingency of widowhood. A simple annuity which is to terminate upon the death of a particular person may be valued by reference to the mortality tables. Mr. Justice Bradley, in Riggin v. Magwire, 15 Wall. 549, 21 L. ed. 232, speaking for the court, said that so long as it remained uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there was no means of removing the uncertainty by calculation, such contract or engagement was not provable under the bankruptcy act of 1841 [5 Stat. at L. 445, chap. 9]. The 5th section of that act gave the right to prove 'uncertain and contingent demands,' but it was held that a contract such as above described was not within that section.
It was remarked by the justice in that case that, if the contract had come within the category of annuities and debts payable in future, which are absolute and existing claims, that the value of the wife's probability of survivorship after death of her husband might have been calculated on the principle of life annuities.
But how can any calculation be made in regard to the continuance of widowhood when there are no tables and no statistics by which to calculate such contingency? How can a valuation of a probable continuance of widowhood be made? Who can say what the probability of remarrying is in regard to any particular widow? We know what some of the factors might be in the question: inclination, age, health, property, attractiveness, chil- [190 U.S. 340, 346] dren. These would, at least, enter into the question as to the probability of continuance of widowhood, and yet there are no statistics which can be gathered which would tend in the slightest degree to aid in the solving of the question.
In many cases where actions are brought for the violation of contracts, such as Pierce v. Tennessee Coal, I. & R. Co. 173 U.S. 1 , 43 L. ed. 591, 19 Sup. Ct. Rep. 335; Roehm v. Horst, 178 U.S. 1 , 44 L. ed. 953, 20 Sup. Ct. Rep. 780, and Schell v. Plumb, 55 N. Y. 592, it is necessary to come to some conclusion in regard to the damages which the party has sustained by reason of the breach of the contract, and in such cases resort may be had to the tables of mortality, and to other means of ascertaining as near as possible what the present damages are for a failure to perform in the future; but we think the rules in those cases are not applicable to cases like this, under the bankruptcy act.
Taking the liability as presented by the contract, if the mortality tables were referred to for the purpose of ascertaining the value so far as it depended upon life, the answer would be no answer to the other contingency of the continuance of widowhood; and if, having found the value as depending upon the mortality tables, you desire to deduct from that the valuation of the other contingency, it is pure guesswork to do it.
It is true that this has been done in England under the English bankruptcy act of 1869 [32 & 33 Vict. chap. 71, 31]. In Ex parte Blakemore (1877) L. R. 5 Ch. Div. 372, it was held by the court of appeal that the value of the contingency of a widow's marrying again was capable of being fairly estimated, and that proof must be admitted for the value of the future payments as ascertained by an actuary. That decision was made under the 31st section of the bankruptcy act of 1869. James, Lord Justice, said:
Although the English statute makes it necessary to arrive at a conclusion upon this point, yet there is no 'practical experience' [190 U.S. 340, 347] as to the chances of the continuance of widowhood, such as may be referred to where the probable continuance of life is involved. In the latter case we have the experience tables in regard to millions of lives, and, under such circumstances, there is, as Lord Justice James said, almost a certainty as to the valuation to be put on such a contingency. But under the English statute, the 31st section makes every kind of debt or liability provable in bankruptcy except demands in the nature of unliquidated damages arising otherwise than by reason of a contract or promise, so long as the value of the liability is 'capable of being ascertained by fixed rules, or assessable only by a jury, or as matter of opinion.' So, under that act, in Ex parte Neal, L. R. 14 Ch. Div. 579, there was a separation deed between husband and wife, and the husband was to pay an annuity to the wife, which was terminable 'in case the wife should not lead a chaste life; in case the husband and wife should resume cohabitation; and in case the marriage should be dissolved in respect of anything done, committed, or suffered by' the other party, after the date of the deed. The annuity was also to be proportionately diminished in the event of the wife's becoming entitled to any income independent of the husband, exceeding a certain amount a year. After the execution of the deed the husband went through bankruptcy, and it was held that the value of the annuity was capable of being fairly estimated and was provable in the liquidation. In that case, speaking of the 31st section of the act of 1869, it was stated that 'words more large and general it is impossible to conceive; they cover every species of contingency.' It was also stated that it was 'difficult to see how any case could arise which would not come within' the language of this act. Bramwell, Lord Justice, said: 'But for the present bankruptcy act, our decision must have been the same as that in Mudge v. Rowan' (1868) L. R. 3 Exch. 85; but he said that the present bankruptcy act was very different in its terms from the act which was in force when that case was decided.
In the case of mudge v. Rowan, L. R. 3 Exch. 85, there was a deed of separation between husband and wife, in which the husband covenanted to pay an annuity to his wife by quarterly instalments, the annuity to cease in the event of future cohabitation [190 U.S. 340, 348] by mutual consent. It was held that this was not an annuity provable under the bankruptcy act of 1849, 12th and 13th Vict. chap. 106, 175; nor a liability to pay money under the 24th and 25th Vict. chap. 134, 154.
The 175th section of the act of 1849 expressly provided that the creditor might prove for the value of any annuity, which value the court was to ascertain. Kelly, Chief Baron, said:
Martin, Baron, said:
Channell, Baron, concurring, said:
In Parker v. Ince (1859) 4 Hurlst. & N. 52, there was a bond conditioned to pay an annuity during the life of the obligor's wife, provided that if the obligor and his wife should at any time thereafter cohabit as man and wife the annuity should cease, and it was held that the annual sum thus covenanted to be paid by the defendant was not an annuity within the 175th section of the bankruptcy law or consolidation act of 1849, nor a debt payable upon a contingency [190 U.S. 340, 349] within the 177th section, nor a liability to pay money upon a contingency within the 178th section, and consequently the discharge in bankruptcy was no bar to an action for a recovery of a quarterly payment due on the bond. Martin, Baron, said:
It is only, therefore, by reason of the extraordinarily broad language contained in the 31st section of the English bankruptcy act of 1869 that the English courts have endeavored to make a fair estimate of the value of a contract based on the continuance of widowhood, even though the value was not capable of being ascertained by fixed rules, nor assessable by a jury, but was simply to be estimated by the opinion of the court or of some one intrusted with the duty.
In the Blakemore Case, L. R. 5 Ch. Div. 372, after the announcement of the judgment, the report states that it was then arranged that it should be referred to an actuary to ascertain the annuity as a simple life annuity, and to deduct from that value such a sum as he should estimate to be the proper deduction for the contingency of widowhood. In other words, it was left to the actuary to guess the proper amount to be deducted.
No such broad language is found in our bankruptcy act of 1898. Section 63a provides for debts which may be proved, which, among others, are: (1) 'A fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date, or with a rebate of interest upon such as were not then payable and did not bear interest.' (4) 'Founded upon an open account or upon a contract, express or implied.' [190 U.S. 340, 350] In 63b, provision is made for unliquidated claims against the bankrupt, which may be liquidated upon application to the court in such manner as it shall direct, and may thereafter be proved and allowed against his estate. This pargraph b, however, adds nothing to the class of debts which might be proved under paragraph a of the same section. Its purpose is to permit an unliquidated claim, coming within the provisions of 63a, to be liquidated as the court should direct.
We do not think that by the use of the language in 63a it was intended to permit proof of contingent debts or liabilities or demands the valuation or estimation of which it was substantially impossible to prove.
The language of 63a of the act of 1898 differs from that contained in the bankruptcy act of 1867, and also from that of 1841. The act of 1867 , 19 (14 Stat. at L. 517, 525, chap. 176, carried into the Revised Statutes as 5068), provided expressly for cases of contingent debts and contingent liabilities contracted by the bankrupt, and permitted applications to be made to the court to have the present value of the debt or liability ascertained and liquidated, which was to be done in such manner as the court should order; and the creditor was then to be allowed to prove for the amount so ascertained.
Section 5 of the act 1841 (5 Stat. at L. 440, chap. 9) provides in terms for the holders of uncertain or contingent demands coming in and proving such debts under the act. But neither the act of 1841 nor that of 1867 would probably cover the case of such a contract as the one under consideration.
Cases have been cited showing some contingent debts which were held capable of being proved under the bankruptcy act of 1898, among which are Moch v. Market Street Nat. Bank, 47 C. C. A. 49, 107 Fed. 897, Circuit Court of Appeals, Third Circuit, 1901, and Cobb v. Overman, 54 L. R. A. 369, 48 C. C. A. 223, 109 Fed. 65. Circuit Court of Appeals, Fourth Circuit, 1901. And under former bankrupt acts, the cases of Fisher v. Tifft (1878) 12 R. I. 56; Heywood v. Shreve (1882) 44 N. J. L. 94, and Shelton v. Pease (1847) 10 Mo. 473.
The contingency in the case of Moch v. Market Street Nat. Bank, 47 C. C. A. 49, 107 Fed. 897, was that the bankrupt was the indorser of commercial paper [190 U.S. 340, 351] not due at the time of filing the petition, and it was held that under 63a, subdivision 4, the creditor might prove against the estate of the bankrupt after the liability had become fixed.
In Cobb v. Overman, 54 L. R. A. 369, 48 C. C. A. 223, 109 Fed. 65, the bond of the bankrupt to secure payment to the obligee of an annuity for life was held to be properly proved under 63a, clause 1.
These cases, it will be seen, do not come within the principle of the case at bar. The other cases arising under the acts of 1867 and 1841 do not affect this case.
The Massachusetts court held the debt herein not provable, upon the authority of Morgan v. Wordell, 178 Mass. 350, 55 L. R. A. 33, 59 N. E. 1037, and Goding v. Roscenthal, 180 Mass. 43, 61 N. E. 222. Mr. Justice Barker, in delivering the opinion of the supreme judicial court of Massachusetts in the latter case, said:
We think the contract, so far as it related to the payment to the wife during her life or widowhood, was not a contingent liability provable under the act of 1898.
In relation to that part of the husband's contract to pay for the support of his minor children until they respectively became of age, we also think that it was not of a nature to be proved in bankruptcy. At common law, a father is bound to support his legitimate children, and the obligation continues during their minority. We may assume this obligation to exist in all the states. In this case the decree of the court provided that the children should remain in the custody of the wife, and the contract to contribute a certain sum yearly for the support of each child during his minority was simply a contract to do that which the law obliged him to do; that is, to support his minor children. The contract was a recognition of such liability on his part. We think it was not the intention of Congress, in passing a bankruptcy act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do [190 U.S. 340, 352] should be discharged in that way. As his discharge would not, in any event, terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pay a certain sum (which may be presurded to have been a reasonable one) in fulfilment thereof should be so discharged. It is true his promise is to pay to the mother; but, on this branch of the contract, it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose.
In Re Baker, 96 Fed. 954, in the district court of Kansas, it was held that a judgment in a bastardy proceeding against the putative father, adjudging him to pay a certain sum to the mother of the child for its maintenance, was not such a debt as would be released by the discharge of the father in bankruptcy, and it was put upon the ground that, by virtue of the judgment and bond given thereon, the father became liable for the maintenance of the illegitimate son the same as if he were his legitimate offspring, and that the bankruptcy law was never intended to affect the liability of the father for the support of his children.
In the case of Re Hubbard, 98 Fed. 710, the district court of Illinois held that a discharge in bankruptcy did not release the bankrupt from the obligation to obey an order made by a state court requiring him to pay a certain sum for the support of his minor children. Kohlsaat, District Judge, said:
As the defendant would still remain liable for the support of his minor children, even if discharged from this contract under the act, and he would remain liable for past support, why should it be held that Congress intended that such a contract, to do what [190 U.S. 340, 353] the law enjoins upon him as a duty, should be released? There is no language in the act which plainly so provides, and we ought not to infer it.
The amendments to the bankruptcy act passed in 1903 (32 Stat. at L. 797, chap. 487) contain an amendment of 17 of the act of 1898, which relates to debts not affected by a discharge, and it provides, among those not released by a discharge in bankruptcy, a debt due or to become due for alimony or for the maintenance or support of wife or child. It is true that the provisions of the amendatory act are not to apply to cases pending before their enactment. They are only referred to here for the purpose of showing the legislative trend in the direction of not discharging an obligation of the bankrupt for the support and maintenance of wife or children.
The judgment is affirmed.