Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.

SCHUMM v. BERG et al.

Civ. 17717.

Decided: November 14, 1950

Maurice Rose, Los Angeles, for appellant. Loeb & Loeb, and Gang, Kopp & Tyre, all of Los Angeles, Keating Coffey, Robert E. Kopp and Milton A. Hudin, all of Los Angeles, of counsel, for respondents.

Johan Richard Wallace Schumm, an infant, through his guardian ad litem sued the executors of the estate of Wallace Berry, deceased, to recover damages for the breach of an oral contract alleged to have been made by and between Beery and one Gloria Schumm, mother of the minor, for the latter's benefit. In substance1 the alleged agreement was that in August, 1947, Beery acknowledged that he was the father of Gloria's unborn child and was obligated to provide for its support; in consideration of her not instituting paternity proceedings prior to the birth of the child and her promise to name the child Wallace (or Wally, if a girl), Beery would procure fully paid-up insurance policies to provide the child with an income of $100 per week until it shall have reached the age of 21 years and the sum of $25,000 on its attaining its majority ‘to afford said child a fair start in adult life’; that notwithstanding Gloria's performance of all conditions and covenants on her part to be performed and her demand to Beery for performance, he breached his agreement and subsequently deceased on April 15, 1949, leaving an estate of two million dollars or more. A general demurrer having been sustained without leave to amend, judgment was entered that ‘plaintiff take nothing against the said defendants.’

In presenting the matter to this court appellant has the laboring oar to support his pleading as a valid complaint. In order to do this it was incumbent upon him to analyze and present his arguments on all the 12 points upon which the demurrer was attacked in the trial court. This has been done in a commendable manner. Inasmuch as we are convinced that the contract sued upon was made without a valuable consideration, it is deemed unnecessary to discuss any other topic.

Two promises of Gloria were made to Beery as considerations for his agreement to acquire for, and deliver to, the infant two fully paid-up policies of life insurance, to wit, (1) a policy that would pay the child $100 per week during his minority and (2) a paid-up policy on the twenty-year endowment plan whereby the life insurance company would pay to the child $25,000 on attaining his majority. The two promises of Gloria were as follows: (1) During the remainder of the period of her pregnancy she will institute no action or proceeding to establish judicially that Beery is the father of the child; (2) In the event of Gloria's marriage to Schumm, the child, if a boy, shall have Beery's Christian name Wallace, or if a female, her name shall include his nickname ‘Wally.’

Neither of her promises nor both combined constitute a valid consideration for the alleged promise of Beery. Considering the allegations as true, Beery was the father of the unborn child. Therefore, he was obligated to protect and support it during gestation, and after birth to support and educate it in a manner suitable to the father's circumstances. Civ.Code, sec. 196a. It follows that a paternity action might be instituted only by the child to compel the father to fulfill his parental obligation. While under the statute a mother may sue without first being formally appointed as guardian ad litem for her illegitimate infant, in suing the putative father she acts solely on behalf of the child and all benefits flowing from such action inure to its benefit. See McLain v. Meadows, 44 Cal.App. 402, 403, 186 P. 411; Stevens v. Kelley, 57 Cal.App.2d 318, 323, 134 P.2d 56. The right of action authorized by the Civil Code, sections 196a and 2312 is by no law or logic vested in the mother of illegitimate progeny. Since she had no right to sue Beery on her own behalf to compel him to support his child prior to its birth, then her forbearance to initiate such action can by no orthodox logic be held to constitute a valid consideration for Beery's promise to provide the child with $134,000.

Appellant cites numerous authorities, Beattie v. Traynor, 114 Vt. 238, 42 A.2d 435, 159 L.R.A.1399; Redmon v. Roberts, 198 N.C. 161, 150 S.E. 881; Conley v. Cable, 198 N.C. 298, 151 S.E. 645; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 L.R.A. 428; Clark's Adm'x v. Campbell, 212 Ky. 341, 279 S.W. 327; Lewis v. Creech's Adm'r, 162 Ky. 763, 173 S.W. 133; Sybilla v. Connally, 66 Ga.App. 678, 18 S.E.2d 783, in support of his contention that the mother's forbearance to institute filiation proceedings during her pregnancy is a valid consideration for the putative father's promise to make provision for the child after birth. In the states in which those decisions were announced the purpose of the filiation statutes was that if the suspected person is proved to be the natural ancestor of the illegitimate, he is, ipso facto, obligated to make payments to the mother for the maintenance of her offspring. Because in those states she has the right to compel his compliance with his obligation, her forbearance is a valid consideration to support the putative father's agreement made with the mother on her behalf. The purpose of our own filiation statute, Civ.Code, sec. 196a, is to create a cause of action for the illegitimate child against the putative father. Therefore, while in the jurisdictions of the cited decisions the mother had a cause of action in her own right, in California she has none. Moreover, while some states authorize the unwed mother to compromise her claim against the putative father, as in Oregon, Oregon's Compiled Laws, sec. 28–912, California has no such statute.

Appellant argues in extenso that because Beery owed a moral obligation to support his child in addition to his legal obligation under section 196a, a ‘self-sufficient’ consideration for the contract existed aside from Gloria's waiver of her right to sue, citing McLain v. Meadows, supra, 44 Cal.App. 403, 186 P. 411. The court there held that although a man fathered an illegitimate child and therefore is morally bound to support it, yet such obligation is not enforceable in the absence of a filiation statute; that it is to enforce the legal duty that an action is instituted. Only that moral obligation can constitute a good consideration where it originates in some benefit conferred upon the promisor, or detriment suffered by the promisee. Civ.Code, sec. 1606. In other words, a moral obligation will support a promise only where a valuable consideration therefor once existed. Estate of McConnell, 6 Cal.2d 493, 498, 58 P.2d 639. The authorities cited by appellant are not in point. In Chapman v. Jocelyn, 182 Cal. 294, 187 P. 962, a bond and statute were held to be a contract. In Scott v. Superior Sunset Oil Company, 144 Cal. 140, 77 P. 817, ‘moral obligation’ is not mentioned. In Glidden v. Nelson, 15 Ill.App. 297, it was held that a putative father is not liable except on an order of filiation or on an express promise to a third person to pay for the child's support actually furnished. Similarly, other cases cited may be distinguished. Not a single decision in California holds that the mother of an illegitimate has an enforceable claim against the putative father on her own account. Indeed, if she should expend moneys to support her illegitimate child she cannot compel its father to reimburse her, Demartini v. Marini, 45 Cal.App. 418, 419, 187 P. 985; McKay v. McKay, 125 Cal. 65, 72, 57 P. 677; Civ.Code, sec. 208, since the obligation of both parents is joint and several to support their child.

The Name ‘Wallace’

Gloria's promise to give her illegitimate child the Christian name of ‘Wallace’ was no consideration for Beery's agreement to provide $134,000 for the child. The people who bear that name are as numerous as the leaves of Valambrosa. So frequently is it seen and heard that it has no significance except possibly the Scottish extraction of him who bears it. Moreover, even though a person of normal tendencies should admit his illegitimate paternity of an infant, is it reasonable to believe that he would even request that his own name be attached to the child? If he would not do so, can it reasonably be said to constitute a valuable consideration for so extravagant a promise as that ascribed to Beery?

In support of his contention that the promise by Gloria to give him a third Christian name, to wit, Wallace, was consideration for the agreement, he has cited Eaton v. Libbey, 165 Mass. 218, 42 N.E. 1127; Daily v. Minnick, 117 Iowa 563, 91 N.W. 913; Freeman v. Morris, 131 Wis. 216, 109 N.W. 983; Gardner v. Denison, 217 Mass. 492, 105 N.E. 359. Prior to those decisions the Supreme Court of Vermont had decided Parks v. Francis' Administrators, 50 Vt. 626. That action was based upon the oral promise of one Nathan Francis to make four successive annual deposits of $25 each in a bank for plaintiff if the latter's father would name plaintiff Nathan Francis Parks. Having determined that the promise was not enforceable because it could not be performed within one year, the court did not discuss the promise to name the child for Mr. Francis. Its dictum did not constitute a holding. Wolford v. Powers, 85 Ind. 294, was next in chronology. It was a suit on a note for $10,000 executed by defendant's intestate which recited that the consideration for it was (1) $40 paid to the maker thereof and (2) services rendered by plaintiff and his wife and (3) for naming their child for the promisor. After holding that the services of plaintiff and his wife were a sufficient consideration for the note the court proceeded to hold that plaintiff's promise to name his child for the promisor was also consideration for the note, citing Parks v. Francis. The opinion in Parks v. Francis having failed to show that the permission to use the promisor's name was a consideration of value, the dictum of the court was of no value in deriving the judgment. That case, therefore, was not authority when cited by the Indiana court in Wolford v. Powers. Again, in Eaton v. Libbey, the Massachusetts court in its dictum held that the privilege of naming a child is sufficient consideration to support a promise, but that court cited only Parks v. Francis and Wolford v. Powers. In turn the other cases cited by appellant relied for support upon one or all of the three cases last above discussed.

Considering the matter of Gloria's promise to name her child for Wallace Beery in the light of section 16053 of the Civil Code, it is inconceivable that Beery could have appraised the privilege of naming Gloria's child Wallace as conferring any benefit upon himself. Also, it is equally as difficult to ascertain any such prejudice that the name could have caused Gloria or her child to suffer that would sustain a promise to pay plaintiff $134,000, or any sum at all. Since naming appellant ‘Wallace’ could neither confer a benefit upon Beery nor cause any detriment to Gloria or her child, it did not constitute a sufficient consideration to support Beery's promise to pay appellant the money provided by the oral contract to be paid.

Judgment affirmed.


1.  Agreement entered into this day between Wallace Beery and Gloria Schumm, witnesseth:Whereas, said Gloria Schumm conceived a child by said Wallace Beery as the result of an act of sexual intercourse between them in the County of Los Angeles, State of California, on or about May 18, 1947, and is now pregnant with said child; andWhereas, said Wallace Beery is a man of great wealth with very substantial income and well able to make adequate provision for the support and education of said expected child, suitable to Wallace Beery's circumstances, station in life and standard of living; andWhereas, said Gloria Schumm is penurious, without property or income and penniless and is unable to make any provision for the support or education of said expected child; andWhereas, Gloria Schumm is about to marry one, Hans Schumm; andWhereas, neither of the parties hereto wish to impose upon said Hans Schumm any responsibility for the maintenance and support of the said child of said Wallace Beery;Now, Therefore, in consideration of the mutual covenants hereof, said Wallace Beery and Gloria Schumm agree as follows:(a) The said Gloria Schumm during the remainder of the period of her pregnancy until the birth of said child shall institute no action or proceeding in any Court to establish judicially the fact that said Wallace Beery is or will be the father of said child.(b) Upon the marriage of said Gloria Schumm and Hans Schumm, said expected child if born alive shall be surnamed ‘Schumm’ and its name if a male shall include said Beery's Christian name ‘Wallace’, or if a female, shall include said Beery's nickname ‘Wally.’(c) Wallace Beery, if said child be born alive, recognizes and acknowledges that he is morally and legally responsible for the support and education of said child in a manner suitable to said Wallace Beery's circumstances, station in life and standard of living from the date of the birth of said child until said child shall become 21 years of age, or until the death of said child, whichever shall occur sooner, and the said Wallace Beery recognizes a moral responsibility to afford said child a fair start in its adult life.(d) Promptly upon the birth of said child, if born alive, said Wallace Beery shall purchase and acquire and deliver to and for said child two fully paid-up policies of a life Insurance Company, to wit: (1) one fully paid-up policy for the support and education of said child, whereby the Life Insurance Company shall have agreed to pay to said child beginning as of the date of his birth until he shall have reached the age of 21 years, or until his death whichever occurs sooner, the sum of $100 per week; (2) a second fully paid-up policy on the Twenty Year Endowment plan, to afford said child a fair start in its adult life, whereby the Life Insurance Company on said child's twenty-first birthday, if he be then living, shall have agreed to pay to said child the sum of $25,000; the said child to have no interest in the life insurance features, if any, of said policies, which shall be exclusively matters of Wallace Beery's own concern; provided however, that said Wallace Beery in lieu of said first mentioned policy for support and maintenance may promptly on the birth of said child designate a Bank in the City of Los Angeles, State of California, as Trustee, and forthwith deposit with such Trustee interest or dividend bearing securities sufficient in amount to yield over and above the Trustee's charges and costs, a minimum net income of $100 per week, with provision in the Trust Agreement that the Trustee, beginning from the date of the birth of said child until the said child reaches the age of 21 years, or until said child's death, whichever occurs sooner, shall pay to said child the sum of $100 per week.

2.  ‘§ 196a. The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, or by a guardian ad litem appointed upon the written application or with the consent of his mother; provided, that such application or consent shall not be necessary if the mother is dead or incompetent, and in such action the court shall have power to order and enforce performance thereof, the same as under sections 137, 137.5, 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.’‘§ 231. An action may be brought for the purpose of having declared the existence or nonexistence between the parties of the relation of parent and child, by birth or adoption.’

FN3 ‘Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.’.  FN3 ‘Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.’

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.