Believing that the conclusion reached by the majority that a judgment for the payment of a monthly sum of $45.00 by a father, the judgment debtor, for the support of two of his infant children until the further order of the court which pronounced it, becomes ineffective and ceases to be enforceable upon the death of the father, as to any installments that should subsequently accrue, introduces a dangerous and unwarranted innovation, and a most undesirable anomaly, in the law of judgments in this State, I respectfully but earnestly record my dissent.
The pertinent provision of the final decree of the Court of Common Pleas of Kanawha County, here under consideration, is in these words:
"And it appearing to the Court that the defendant has voluntarily agreed to pay the sum of $45.00 per month for the support and maintenance of said children, beginning as of the time when plaintiff shall have established a home for herself and said children separate and apart from the defendant; it is ADJUDGED, ORDERED and *Page 174 DECREED that the defendant do pay unto said plaintiff for said support and maintenance of said children the sum of $45.00 per month, beginning as of the date when plaintiff shall have established such home separate and apart from said defendant; and that such payments shall continue until the further order of this Court."
By the statutes of this State, Code, 1931, 38-3-1, and38-3-2, the foregoing decree of the Court of Common Pleas of Kanawha County which ordered the father, W. E. Robinson, to "pay unto said plaintiff for said support and maintenance of said children the sum of $45.00 per month, * * *; and that such payments shall continue until the further order of this Court", being a decree which required the payment of money, was a judgment and as such, by virtue of Code, 1931, 38-3-6, referred to in the majority opinion, became a valid lien upon the real estate of the defendant to which he is or becomes possessed or entitled at or after the date of such judgment, or, as the judgment in question was rendered in court, at or after the commencement of the term at which it was rendered. This is admitted by the majority. The lien having arisen by virtue of the judgment it continues until the judgment is discharged in some legal manner. Renick v. Ludington, 14 W. Va. 367, 381, 38 L.R.A. 294n; McClaskey v. O'Brien, 16 W. Va. 791. The judgment is a lien by force of the statute. It does not cease to be a lien because of the death of either party and it may be enforced in equity without revival. Laidley v. Reynolds, 58 W. Va. 418,52 S.E. 405; Maxwell v. Leeson, 50 W. Va. 361,40 S.E. 420, 88 Am. St. Rep. 875. The cases just cited, which have been the law in this jurisdiction without question for many years, say nothing about the termination of the force or the effect of a judgment upon the death of the judgment debtor, and furnish no basis for, but are in irreconcilable conflict with, the statement in the final portion of the syllabus prepared by the majority in this case that the decree becomes a lien upon the real estate of the debtor, a husband, "which may be enforced as the required payments accrue or mature, during the lifetime of the husband; but may not accrue or mature, or be enforced against the estate *Page 175 of the husband, real or personal, after his death." The application of the statute, as made by the majority, is not supported by any valid reason or the citation of any persuasive authority and, in my opinion, is wholly at variance with the holdings of this Court in the cases to which I have just referred.
The reasoning upon which the majority bases the decision that the judgment of the court of common pleas loses its force and effect as to installments to accrue in the future, upon the death of the judgment debtor, the father of the infant children of the parties in the divorce suit, is entirely unsound. It appears to result from the failure of the majority to recognize the clear and valid distinction between the duty of the father to support his children, which, in the absence of any adjudication, terminates with his death, and the effect of the judgment, based upon that duty at the time it was rendered by a court of competent jurisdiction in his lifetime, which by all the former holdings of this Court does not end or terminate by the death of any party to the judgment.
In this case, as in any other case, the claim upon which the judgment is based, whether it arises from contract or tort, and whatever its character, when judgment is rendered, loses its identity and becomes merged in the judgment. A note, or an open account, or a claim for personal injuries, involved in any proceeding, once it is reduced to judgment, no longer retains its original identity but is merged and converted into the judgment. Generally the original status of the claim is no longer important or material. It is absorbed in the judgment rendered upon it and thereafter it is the judgment, and the judgment only, that affects and determines the rights of the parties. See Fisher's Executors v. Hartley, 48 W. Va. 339,37 S.E. 578; 54 L.R.A. 215, 86 Am. St. Rep. 39; 30 Am. Jur. Judgments, sections 154 and 155. That result occurs when a judgment is entered upon a claim which sounds in tort. I think it would not be seriously contended in this, or any other, jurisdiction that a judgment based on a claim for personal injuries, which claim before judgment at common law *Page 176 ends with the death of the tort feasor, would lose its force and effect and could not be enforced or collected with its accruing interest after the death of the defendant. A judgment against a tort feasor rendered by a court of competent jurisdiction, by universal recognition, survives his death and continues in full force and effect as a judgment and as a charge against his estate until it is satisfied or discharged in some legal manner. I can see no distinction, in law or logic, between a judgment based upon a claim in tort in its effect upon the estate of the defendant tort feasor after his death and the decree of the court of common pleas which the majority concedes is a judgment and a lien upon the real estate of the debtor, which admittedly has not been satisfied or discharged in any legal manner, and which, as to installments to accrue after his death, by the decision of the majority, never will or can be so satisfied or discharged by payment out of his estate. The decision of the majority simply, and, I think, summarily and without advancing any reason which appears to me to be either sound or persuasive, ignores the holdings of the above cited cases to the effect that a judgment as such is not affected by the death of a party to it, and reaches a conclusion which is entirely inconsistent with the principles announced, and unqualifiedly contradicts the pronouncements made, in each of them.
That the judgment involved in this case applies to installments subsequently to accrue does not alter its character or impair its effect as a valid judgment. This Court has held in an unbroken line of cases, until the present decision, that a valid judgment covers payments to accrue after the entry of the judgment and that a judgment which operates upon payments subsequently accruing is a valid lien upon the real estate of the defendant in the judgment. Goff v. Goff,60 W. Va. 9, 53 S.E. 769, 9 Ann. Cas. 1083; Smith v. Smith, 81 W. Va. 761,95 S.E. 199, 8 A.L.R. 1149; Hale v. Hale, 108 W. Va. 337,150 S.E. 748; Biggs v. Biggs, 117 W. Va. 471,185 S.E. 857; Harman v. Harman, 120 W. Va. 199, 196 S.E. 361; Holcomb v.Holcomb, 122 W. Va. 293, 8 S.E.2d 889; Korczyk v.Solonka, 130 W. Va. 211, 42 S.E.2d 814. In all the cases just cited, except the case *Page 177 of Korczyk v. Solonka, 130 W. Va. 211, 42 S.E.2d 814, the judgments involved were for alimony. In the Korczyk case the judgment was for money awarded for support and maintenance of children of the judgment debtor. In principle, however, with respect to the validity and the force and the effect of the judgment, as a judgment, there is no distinction, and the labored effort of the majority to create such distinction concerning the effect of the judgment due to the difference between the duty of a husband to support his wife by the payment of alimony because she may have been entitled to dower in his estate after his death, and the duty of a father to support his infant children, a duty which of itself terminates with his death, is obviously unsound and, it seems to me, utterly devoid of merit and entirely lacking in persuasiveness. The controlling question in this case is not the duty of the father to support his children but the effect of the judgment which required him to do so in a specified manner and amount until the further order of the court.
Nothing appears in any of the cases last cited to indicate that the judgment under consideration in any of them should cease to be valid or enforceable, as to future installments, upon the death of any of the judgment debtors. On the contrary, in the case of Hale v. Hale, 108 W. Va. 337, 150 S.E. 748, this Court, in considering the power of the chancellor in a suit for divorce under the statute then in effect, Code, 1923, Chapter 64, Section 11, to decree as he "shall deem expedient, concerning the estate and maintenance of the parties or either of them, and the care, custody and maintenance of the minor children", said: "We think this is of sufficient breadth to warrant a requirement by the trial court that permanent alimony be paid out of a husband's estate after his death, when, in the chancellor's opinion, such course is just and right." Though the present statute, Code, 1931, 48-2-15, as amended by Chapter 35, Acts of the Legislature of 1935, Regular Session, modified Code, 1923, Chapter 64, Section 11, in several particulars, the language of the present statute, with respect to the power of the court in a suit for divorce to decree concerning the estate of the parties, *Page 178 or either of them, as it shall deem expedient, and the maintenance of the minor children, or any of them, is in substance the same, and just as comprehensive, as that of the statute quoted and considered by the Court in the Hale case. It is clear that the passage quoted from the opinion in that case means that the decree which required the husband to pay the wife, during her life, permanent alimony to accrue at the rate of $200.00 per month, subject to the future order of the court, was a judgment which would continue to be effective and enforceable as a valid judgment after the death of the judgment debtor and until terminated or modified, as it could be, at any time for sufficient cause, as to the installments to accrue in the future, by the court which pronounced it. In principle, the same effect should, in my opinion, be accorded the judgment for the support of the infant children of the deceased parent, W. E. Robinson, to accrue at the rate of $45.00 per month after his death, until it should be terminated or modified, as to installments to accrue in the future, upon a showing of a change in circumstances, such as the death of the parent, or any other sufficient reason which would justify such action by the court of common pleas which entered the judgment. Holcomb v. Holcomb, 122 W. Va. 293, 8 S.E.2d 889; Biggs v. Biggs,117 W. Va. 471, 185 S.E. 857; Smith v. Smith, 81 W. Va. 761,95 S.E. 199, 8 A.L.R. 1149; Code, 1931, 48-2-15, as amended by Chapter 35, Acts of the Legislature, 1935, Regular Session. Until modified or terminated by that court, which has not been done, the judgment, in my opinion, remains in full force and effect.
The majority opinion refers to or discusses all the cases dealing with alimony and support and maintenance of minor children which I have cited except the case of Smith v. Smith,81 W. Va. 761, 95 S.E. 199, 8 A.L.R. 1149. Instead of following the reasoning of those cases and reaching a conclusion in harmony with their holdings, however, it summarily adopts an entirely different and utterly inconsistent view which, I think, necessarily rejects those prior decisions of this Court and, without so stating in express terms, in effect overrules all of them. *Page 179 I can not consent to any such unusual, unsound and wholly unnecessary result.
The unsoundness of the conclusion reached by the majority becomes manifest when it is examined in the light of the heretofore unquestioned prior decisions of this Court to which I have referred. But that is not all. Much more could, and some more should, be said to demonstrate that the decision of the majority is not based on sound reason and is contrary to the view expressed by recognized text writers and the clearly established weight of judicial authority in other jurisdictions. As stated in the majority opinion, there is some conflict in the decided cases in which the precise question here involved has been considered; but, in the conflict, the decisions which hold that a decree requiring the payment by the father of designated installments of money for the support of a minor child until the further order of the court continues in force and effect after his death and during the minority of the child, distinctly outnumber the few cases that adopt the opposite view. The decided weight of authority, and most of the well reasoned decisions in other jurisdictions, are to the effect that a decree in a suit for divorce which requires a father to pay a stated sum periodically for the support of his minor child until the further order of the court is not terminated by his death, before the child attains its majority, but that the obligation created by the decree survives the death of the parent. In such instance the general rule is stated to be that the obligation created by the decree of the court does not necessarily terminate upon the death of the father, if he dies before the child arrives at majority, but survives his death.
Some of the cases which recognize and adhere to this principle are: Stone v. Bayley, Executor, 75 Wash. 184,134 P. 820, 48 L.R.A. (N.S.) 429; Miller v. Miller, 64 Me. 484;Murphy v. Moyle, 17 Utah 113, 53 P. 1010, 70 Am. St. Rep. 767;Creyts v. Creyts, 143 Mich. 375, 106 N.W. 1111, 114 Am. St. Rep. 656; Smith v. Funk, 141 Okla. 188, 284 P. 638; Newman v.Burwell, 216 Cal. 608, 15 P.2d 511; Mansfield v.Hill, 56 Or. 400, 107 P. 471, 108 P. 1007. To the *Page 180 same effect are the statements of the rule in a number of recognized treatises and texts which deal with the subject of decrees for support in divorce proceedings.
In 27 C.J.S., Divorce, Section 323, Paragraph d, it is said that, in the absence of statutory inhibition, it is the general rule that provisions for the support of a child do not necessarily terminate upon the death of the father and that whether the children are entitled to support money depends upon the nature and the terms of the decree. In 17 Am. Jur., Divorce and Separation, Section 708, the statement is that the weight of the adjudicated authorities is to the effect that the liability of the father is not necessarily terminated by his death, but may survive against his estate as to subsequently accruing installments, that there is no sound reason why the estate of the father should not be charged with the obligation to provide support for his minor children after his death, and that a provision in a decree of divorce against a husband for the payment of a certain sum monthly, until the further order of the court, for the support of his infant child creates an obligation which is not discharged by his death.
In Nelson on Divorce and Annulment, Second Edition, Vol. II, Chapter 14, Section 14.91, this language appears: "The allowance for support of a child is ordinarily limited to his or her minority. Death of the father required to support his children does not necessarily terminate the allowance made for their support, and it is generally held that his death does not terminate his liability unless otherwise provided by the divorce decree or by the agreement of the parents. If a certain amount is required to be paid each month for support of a child until the further order of the court, and such sums are made by the decree a lien on the father's property, the allowance has been held not to terminate on the death of the father."
In Schouler, Divorce Manual, Section 347, Paragraph C, Page 506, the author uses this language: "At common law a father was under no obligation to provide for the support of a child after his death. This, however, does not *Page 181 necessarily mean that provisions in the decree for the support of a child terminate when he dies. It has been said that, when through the fault of the father his family is broken up and his children become in one sense the wards of the court, he may be compelled, if of sufficient ability, to give security for the support of his children that shall be binding upon his estate or provisions may be enforced by the court. There are, therefore, decisions to the effect that upon the death of the father the provisions of the decree for the support of the child do not necessarily end but may be enforced against his estate. Likewise the obligation of the father to support his child if based on an agreement between the parents may continue if he has died. In the absence of contract, however, in some of the jurisdictions under the statutes, the liability of the father ceases upon his death." As authority for the last sentence in the passage just quoted the author citesCarey v. Carey, 163 Tenn. 486, 43 S.W.2d 498, and Blades v.Szatai, 151 Md. 644, 135 A. 841, the latter of which cases, which I shall discuss later, is the principal authority upon which the conclusion reached by the majority seems to be based.
I now refer to a few of the many cases, some of which I have cited, in other jurisdictions which hold that a decree, rendered under statutes which are substantially similar to the statute of this State, for the payment of money for the support of a minor child, to accrue in installments, survives the death of the father if he dies before the child comes of age.
In Murphy v. Moyle, 17 Utah 113, 53 P. 1010, 70 Am. St. Rep. 767, the Supreme Court of that State said: "A decree made in a divorce suit, under section 2606, Comp. Laws 1888, that the mother shall have the care and custody of the minor children, and that the father shall pay a certain sum monthly towards their support during their minority, is not discharged by his death, but its performance may be enforced out of his estate, for the time of minority." In that case there was no agreement upon the part of the father to pay the support money decreed. The court based its decision upon the decree of the trial court and held it *Page 182 to be a lien upon designated property of the father. With respect to the lien of the original decree and the modified decree in the divorce suit the Court said: "Testing, therefore, the original and modified decrees by the terms of the statute, it is evident that they were both authorized, and created an obligation to pay and a lien on the property described in the modified decree as security for payment in accordance with the terms of the decrees, which obligation and lien continued in force after the death of the deceased, and bound his estate. Such lien was subject to foreclosure for failure to make payment of the sum stipulated at any time during the minority of the child. It could be foreclosed the same as any other lien for the purpose of enforcing payment."
In Creyts v. Creyts, 143 Mich. 375, 106 N.W. 1111, 114 Am. St. Rep. 656, a decree entered by the trial court in a divorce suit provided, among other things, that the husband should pay the sum of $10.00 per month for the support of an infant child until the further order of the court. The father paid this sum until his death. The petition of the wife charged, in part, that the death of the husband did not interrupt or suspend her right to the sum of $10.00 per month which was payable until the infant reached her majority and that the administratrix of the deceased husband should be required to make such payments, and asked that the present worth of the payments prayed for by the petitioner be determined and ordered by the court to be paid by the administratrix. In the opinion the Supreme Court of Michigan employs this language: "Under our statute, which authorizes the court to make the decree a charge upon the property, and to change and alter the decree from time to time, in the interest of justice, (Comp. Laws, Sections 8640, 8641), we are of the opinion that, where the rights of bona fide holders have not intervened, the court may alter, amend, enlarge, or diminish the decree, as the necessities of the one and the ability of the other party may require, and that it may protect the child by making the decree a charge upon property to prevent its dissipation, and that the power is not determined by *Page 183 the death of the husband." In that case there was no agreement between the parties concerning the payment of any money for the support of the child.
In Mansfield v. Hill, 56 Or. 400, 107 P. 471, the Supreme Court of Oregon held in head note 10: "The provision in a decree of divorce for future monthly payments for support and education of children, as authorized by B. C. Comp. Section 513, creates a personal liability of defendant, which does not terminate at his death, but may be enforced against his estate." In that case also there was no agreement between the parties on that subject.
In Miller v. Miller, 64 Me. 484, the Supreme Judicial Court of Maine held: "A decree made in a divorce suit that the mother shall have the care and custody of her minor children, and that the father shall pay a certain sum quarterly towards their support, which by its terms is to continue in force till the further order of the court, is not discharged by his death; and a bond given to secure performance of such a decree is binding upon the surety notwithstanding the death of the principal obligor." In the opinion these statements appear:
"The question is whether a decree of this court, made in a divorce suit, that the mother shall have the care and custody of minor children, and that the father shall pay a certain sum quarterly towards their support, which by its terms is to continue in force till the further order of the court, is discharged by the father's death.
"We think it is not. The statute conferring jurisdiction in such cases is very comprehensive. It authorizes the court to make such a decree as the circumstances require. * * *.
"We do not controvert the position of the learned counsel for the defendant that, by the rules of the common law, a father is under no legal obligation to provide for the support of his children after his death. It may be that he can disinherit them and leave them to be supported by others. * * *. *Page 184
"But we think such can only be the law when the family relations remain intact, and when there is no great danger that such an arbitrary power will be exercised. We think that when, through the fault of the father, his family is broken up, and his children become in one sense the wards of the court, this power is taken from him, and he may be compelled, if of sufficient ability, to give security for the support of his children that shall be binding upon his estate.
"Certainly such ought to be the law. * * *. We think it is the law. As before remarked, the statute conferring jurisdiction in such cases is very broad. It declares that the court may make such decree concerning the care, custody, and support of the minor children of the parties, and alter it from time to time, 'as circumstances require,' and employ any compulsory process they deem proper." Though the action was against the surety on the bond, the effect of the bond depended upon the power of the court to render the decree and the force and the binding effect of the decree upon the estate of the deceased father after his death. The basic liability for the payment of the support awarded by the decree was in no sense dependent upon any agreement of the husband to its entry. The bond was given as security for the involuntary obligation imposed by the decree and, without that obligation, created by the decree, the security would have been of no force or virtue. The surety was liable on the bond solely because the principal was bound by the decree.
In Stone v. Bayley, 75 Wash. 184, 134 P. 820, 48 L.R.A. (N.S.) 429, the Supreme Court of Washington said in head note 2: "The court has power, in a divorce case, to make a provision for alimony and the support of a minor child that will survive, and may be enforced out of the estate of the party charged, in view of Rem. Bal. Code, Section 989, providing that, in granting a divorce, the court may make such disposition of the property as may be just and equitable, and shall make provision for the support of the minor children of the marriage." The parties, pending the suit, entered into a written agreement *Page 185 by which, among other things, the husband agreed to pay to the wife, for the support of their minor child, $25.00 per month during its minority, such payments to cease upon its earlier death. In the decree which granted a divorce to the wife and awarded her the custody of the child no provision was made for its support. Upon the death of the husband no further payments required by the agreement were made for the support of the child. The wife, after presenting a claim for the installments which had accrued since his death to the executor of his estate, payment of which was refused, brought suit against the executor to enforce payment of the claim out of the estate of the deceased husband. The trial court entered judgment in favor of the plaintiff for the payment of the claim. The Supreme Court affirmed the judgment and in its opinion said: "Such a contract is no more a fraud of the heirs than if the same provisions were found in a will. No heir, as such, has a vested interest in an estate during the life of the owner. No one is heir to the living. The husband in this case made the contract while his property was his own, and there is no more reason why the contract should not create a valid claim against his estate than in case of any other contract which he might have made. It is no more in fraud of creditors than any other contract providing for future payments would have been. * * *.
"We are convinced that it was the intention of the parties that the obligation of this contract should survive the husband's death during the life and minority of the child. We are further convinced that, under our statute, a similar provision, if contained in the decree of divorce would have been valid and surviving, and that neither such a decree nor such a contract contravenes any principle of public policy."
In the more recent case of Newman v. Burwell, 216 Cal. 608,15 P.2d 512, there was a property settlement between a husband and a wife which was confirmed by a decree entered in a suit for divorce in which they were parties and pursuant to the settlement the husband was required by the decree to pay to the wife, until the further order of the court, $50.00 per month for the support of the child. *Page 186 While in default in payment of matured installments the father died. His executrices having refused payment of the claim, the wife brought suit against them to recover the installments which had matured at the death of the father and for $7,400.00 which represented the maximum amount necessary to pay the monthly installments which had accrued since the father's death and which would continue to accrue during the minority of the child. From a judgment for the defendants the wife appealed. The Supreme Court of California reversed the judgment of the trial court and in the opinion it uses this language which is peculiarly applicable to the case at bar:
"The common-law rule that the liability of the father to support his child was terminated by his death, and no claim therefor survived against his estate, was applicable to a divorce a mensa et thoro which did not finally terminate the marriage relation, but merely effected a separation without disturbing the marital rights and obligations. 9 Rawle C. L. 484, Sec. 300; 19 C. J. 360, Sec. 822 (5); Murphy v. Moyle, supra;Stone v. Bayley, supra. However, under modern conditions, the weight of the adjudicated cases is to the effect that such liability of the father is not necessarily terminated by his death but may survive against his estate as to subsequently accruing payments. Estate of Smith, 200 Cal. 654, 659,254 P. 567, 569; Myers v. Harrington, 70 Cal. App. 680, 234 P. 412;Miller v. Miller, 64 Me. 484; Stone v. Bayley, supra; Murphy v.Moyle, supra; Gamsburg v. Garbarsky, supra; 9 Rawle C. L. 301, Sec. 300; 19 C. J. 360, Sec. 822 (5).
"Without narrating the facts and discussing the holdings in each of the several cases just above cited, suffice it to say that they indubitably established that a father's obligation to support his minor child, which obligation is fixed by a property settlement agreement and confirmed by a divorce decree, survives his death and becomes a charge against his estate for all sums accruing thereunder during the child's minority, and that an action, similar to the one here instituted, may be brought to establish the same as a valid and subsisting claim against the father's estate. It is true that in certain of the cited cases *Page 187 the father's obligation was to pay a designated sum monthlyduring the minority of the child, thus tending to irrefutably indicate that it was to survive the father, whereas the obligation here imposed was to continue 'until further order of court.' However, these same authorities recognize that in the absence of an expressed intention to limit such obligation to the lifetime of the father, the same will, and does, survive his death even under a decree imposing the same until 'further order of the court.' Stone v. Bayley, supra, page 822 of 134 P., 75 Wash. 184; Myers v. Harrington, supra, page 685 of 70 Cal.App., 234 P. 412; Miller v. Miller, supra. In the case last cited the decree merely provided, as here, for the father's payment of a specified sum quarterly 'till the further order of court', and it was held that such obligation continued after his death and during the minority of the children. And rightfully so, for it is the solemn duty of every father to support his children during their minority, and if he fails to do so, every principle of justice demands that they be thus supported out of his estate.
"It is also true that in certain of the cases above cited the divorce decree, in addition to fixing the father's obligation toward his minor children, imposed a lien upon his property to secure the payment of the sums due thereunder. However, the cases recognize that a distinction founded in the giving or requiring of security can rest on no sound basis, inasmuch as the provision for security is a difference merely in circumstance, and not in principle. * * *.
"* * *. It is conceivable that in some cases the installments of support money accruing after the father's demise, may aggregate sufficient to consume his entire estate, thus leaving nothing upon which a testamentary disposition might act. However, the same argument is equally applicable to a secured obligation for the payment of support money. We found no difficulty and expressed no hesitancy in holding the latter type of obligation to be a continuing one in the Estate ofSmith, supra, recently decided. Moreover, it is equally conceivable that *Page 188 a conclusion contrary to the one herein announced might well result in certain cases in the minor child becoming a public charge. It would seem that the well-being of the child is at least as important as the father's power of testamentary disposition."
As already stated, the majority opinion refers to and briefly discusses the cases of Stone v. Bayley, 75 Wash. 184,134 P. 820, 48 L.R.A. (N.S.) 429; and Miller v. Miller, 64 Me. 484. It also cites the cases of Murphy v. Moyle, 17 Utah 113,53 P. 1010, 70 Am. St. Rep. 767; Creyts v. Creyts, 143 Mich. 375,106 N.W. 1111, 114 Am. St. Rep. 656; West v. West, 241 Mich. 679,217 N.W. 924; Smith v. Funk, 141 Okla. 188,284 P. 638; and Newman v. Burwell, 216 Cal. 608, 15 P.2d 511. It gives slight consideration, however, to the reasoning upon which those decisions are based, the soundness of which is demonstrated by the foregoing quotations which I have used from some of them. Those cases were decided under statutory provisions which appear to be substantially similar to and no more comprehensive than those of Section 15, Article 2, Chapter 48, Code, 1931, as amended by Chapter 35, Acts of the Legislature of 1935, Regular Session; but the majority accords no persuasive or decisive force or effect to the conclusions reached in any of them.
As to the last above mentioned six cases which the majority opinion cites, it summarily passes them by with the comment that "some of these cases are apparently, based upon voluntary contracts entered into by the husband, and carried into the decree granting the divorce and custody of the children." That feature, however, obviously does not distinguish any of them from the case at bar, for, as the provision of the decree of the court of common pleas, quoted earlier in this dissent, expressly states, the voluntary agreement of the husband and father to pay the support money of $45.00 per month is recited in, and is "carried into", the decree of that court. The existence of an agreement in the case at bar, and in those of the cited cases in which an agreement was entered into by the husband, is, in my judgment, of no importance. As I have endeavored to show, the basic reason for the *Page 189 survival of the obligation against the estate of the deceased father to pay the installments of support money accruing after his death is the force and the effect of the decree of the court which emanates from its power, under the statute, to pronounce it, and which, by the statutes of this State, is a judgment, rather than the force and the effect of the agreement; and the obligation of the decree would arise and persist whether or not any such agreement existed. This position is supported by the above mentioned cases dealing with the question, which are cited and briefly discussed in the majority opinion, as reference to the quotations from the opinions of some of them hereinabove set forth clearly indicates. The majority should not lightly cast aside those cases, as it apparently does, merely because some of them involve an agreement which was "carried into the decree."
In arriving at the decision reached in this case the majority opinion appears to give controlling effect to four cases from other jurisdictions. These cases are Blades v. Szatai,151 Md. 644, 135 A. 841, 50 A.L.R. 232; Barry v. Sparks,306 Mass. 151, 27 N.E.2d 728; Guinta v. Lo Re, 159 Fla. 448,31 So. 2d 704; and Carey v. Carey, 163 Tenn. 486, 43 S.W.2d 498. TheBarry case and the Carey case, in my opinion, are clearly distinguishable from the case at bar.
In the Barry case the decree granted the wife a divorce and awarded the custody of the minor child to a third person, its maternal grandmother, and provided that the father should pay the wife $11.00 per week for its support until the further order of the court. A little more than a year after the decree became effective the wife died. Several years later the grandmother sued the father to recover for board and lodging for the period from a few weeks before the death of the wife to the time of the institution of the suit. The defendant made no payments of support after the death of the wife. The trial court entered judgment for the defendant. Upon review by the Supreme Judicial Court of Massachusetts, the judgment of the trial court and the judgment of an intermediate appellate court were reversed on several *Page 190 grounds. In the opinion the Court said: "We are here concerned with the effect on the common law rights and obligations of a father when, by a decree entered in divorce proceedings, custody of his child is given to a third party, and payments by the father for the support of the child are ordered. * * *. So long as such a decree is in effect a father does not have the right to the custody of his child and is not under the obligation to provide for its support other than to make the payments for its support ordered by the decree. * * *. But when such a decree has been entered, upon the death of one of the parents (in the present case, the mother) the divorce decree ceases to have any further continuing effect, * * *, at least when, as here, the decree makes no provision for its continuance beyond the lives of the parents. * * *. When the divorced wife of the defendant died there was no longer any effective decree of court depriving the father of the custody of the child and relieving him from the common law duty to support it. * * *. The defendant's common law right to the custody of his child revived and his obligation to support it again arose when the divorce decree became ineffective upon the death of the mother." In that case the father did not die and no issue arose as to the continuance of the obligation of supporting the child under a decree against his estate after his death. Though the reasoning of the Court would seem to indicate that as the divorce decree became ineffective upon the death of the wife the effect of the decree for the payments of support by the husband would likewise have ended at his death, that question was not before the Court and of course was not decided in that case.
In the Carey case, the wife obtained a decree of absolute divorce from the husband. The decree gave her $3,000.00 alimony and the custody and the control of their two infant daughters but it made no provision for their support. Subsequently the husband died and the daughters sued his executors, the devisees under his will, and his widow to whom he was married after the divorce, "to assert and establish property rights in the estate". *Page 191 The trial chancellor dismissed the bill of complaint. Upon review by the Supreme Court of Tennessee the judgment of dismissal was affirmed. Unlike the case at bar there was no decree or adjudication against the father for the support of the children. In the opinion the Court said: "There are some authorities which hold that when the decree awarding custody of a child to its mother makes definite provision for support by the father, decreeing a definite periodical payment, the obligation so fixed survives the death of the father as a charge upon his estate. Stone v. Bayley, 75 Wash. 184,134 P. 820, 48 L.R.A. (N.S.) 429, and cases cited in note; Schouler, Marriage, Divorce, etc. (6 Ed.), vol. 2, sec. 1916. But none has been found which would extend the obligation for support beyond the death of the father, when not resting upon contract or definite adjudication. The common-law obligation terminates with the death of the parent." Of course, the last sentence contains a correct statement, in the absence of a decree imposing the obligation of support which by virtue of the decree would survive against his estate after his death; but that statement has no application to the question of the effect of the decree which arises in the case at bar.
The Blades case and the Guinta case, however, seem to be applicable to the case at bar, and they adopt the minority rule. The decision in each case was by a divided Court. In theBlades case, one judge of the five judge Court dissented; and in the Guinta case four judges concurred in the majority opinion and the chief justice and one judge dissented. Those two cases, adhered to by the majority, in the face of the applicable statutes of this State, are contrary to the prior decisions of this Court, the views expressed in standard treatises and texts and the clear weight of authority of decisions of the Courts of last resort in other jurisdictions, to all of which I have referred and from a number of which I have quoted at length; and to me they appear to constitute the feeble and ephemeral legal foundation upon which the conclusion of the majority in this case is based. It has based its holding, not upon the rock of sound judicial pronouncements *Page 192 of this Court, and numerous courts of recognized standing in other jurisdictions, which constitute the decided weight of authority, but upon the sands of a small minority which is divided within its own ranks.
Among the reasons advanced in the majority opinion, in support of the decision, two call for comment. These are the arguments, apparently suggested by the Blake case, which discusses the right of a father to make testamentary disposition of his estate, that the survival of the decree for the payment of support against the estate of the father would tend to "change the course of descent and distribution", and also tend to "place the entire estate of a decedent beyond the reach of his creditors". To me each argument appears to be utterly groundless. A judgment of a court of competent jurisdiction in favor of a child against his parent, based upon any valid or recoverable claim, whatever may be its character, creates in law the relation of judgment creditor and judgment debtor between them which merits the same legal sanction and protection as that which arises when a judgment for money is rendered between any other persons. If a father with many dependent children against whom a valid judgment is entered in favor of one of them, or in favor of a stranger, for a sum which will consume or take from him all his property and estate, should will his property to his children equally, or in unequal shares, or die intestate, with the judgment unsatisfied, his children can not hold his property except subject to the judgment. Before they can have the property the judgment must be paid. This ill fortune is common to every insolvent or bankrupt father whose children, because of his financial misfortune, take nothing which he possesses by the course of descent and distribution, or by testamentary disposition. In such instance the course of descent and distribution is not changed nor is his power of testamentary disposition destroyed; satisfaction of the judgment simply consumes the estate. The course of descent and distribution is in no wise altered but there is no property as to which it can operate. When there is nothing to descend or to distribute there can be no descent *Page 193 or distribution. The same unfortunate fate overtakes creditors whose judgments or unadjudicated claims are subsequent in priority to an earlier judgment. In neither event, however, can it be seriously contended that the estate absorbing judgment is, or should be, for that reason ineffective. If such a judgment should be held inoperative simply because it consumed the estate of the judgment debtor and prevented his heirs from receiving his property or deprived subsequent creditors from satisfying their claims against it there would be no reason or excuse for a court to enter any judgment in favor of creditors against their debtors. The arguments just considered, in my opinion, are not only entirely unsound, but they tend to defeat their expressed purpose.
I can not agree to the statement in the majority opinion that "in determining what is the weight of authority on a particular question, we are no more required to base our finding on the number of cases, pro and con, bearing on the question, than to base a finding of fact on the number of witnesses testifying as to a disputed fact in the trial of an action at law." The attempted analogy between the weight of authority and the weight of evidence seems to me to be entirely lacking. In reality the factual situation actually exists and is not altered by, or in spite of, the conflicting evidence of witnesses who undertake to narrate it in any given case. In that situation the endeavor is to determine which of the versions is the true or the most nearly true recital. None of them may be the exact or the entire truth; but in the effort the triers of fact may be fully justified in believing one convincing witness whose narrative is at variance with that of the greater number. In adopting an abstract rule or principle of law, however, the endeavor is not to ascertain the existence of a factual situation but to give due consideration to the wisdom and the justice of the conclusions of other learned, capable and experienced tribunals that have studied and toiled with the problem, and reached a final solution in a given case. To say that the greater number of decisions to the same effect is of no more value than a lesser number of decisions, or a *Page 194 single decision, to the contrary with respect to the same question seems to me to reject summarily the learning and the experience of the many in favor of the same qualities of the equally capable few. Sound practice in such matters usually does not dictate that course.
I think there is no justification for the statement in the last paragraph but one of the majority opinion that, in dealing with the decree of the court of common pleas of August 26, 1943, "We are merely interpreting its intended meaning, force and effect, at the time it was entered", or the statement: "Such a question is presented on this certification." With deference, I assert that no question of interpretation arises in this case. The provision of the decree is clear and free of any suggestion of doubt or uncertainty. It states in familiar and express terms that the defendant shall pay the sum of $45.00 per month for the support of the children until the further order of the court, and it means exactly what it says. Anyone and everyone can understand its plain and clear meaning, force and effect. No one questions its meaning or the significance of the clear and easily understandable effect of the simple language in which it is couched. That issue is not mentioned and does not arise in this case. When the language of a written instrument is plain and unambiguous, as here, there is no occasion or justification for its interpretation by the court. "Where the terms of a writing are plain and unambiguous there is no room for construction, since the only office of judicial construction is to remove doubt and uncertainty." 12 Am. Jur., Contracts, Paragraph 229; Kanawha Banking and TrustCompany v. Gilbert, 131 W. Va. 88, 46 S.E.2d 225; Adkins v.Aetna Life Insurance Co., 130 W. Va. 362, 43 S.E.2d 372. "The function of judicial construction of a written instrument is confined to the realm of ambiguity and there is no occasion for its exercise outside the limits of that sphere of inquiry."Kanawha Banking and Trust Company v. Gilbert, 131 W. Va. 88,46 S.E.2d 225. See also Hamilton v. Rathbone, 175 U.S. 414,20 S. Ct. 155, 44 L. Ed. 219; Country Club of Portsmouth v.Wilkins, 166 Va. 325, 186 S.E. 23. If a writing is not ambiguous, it *Page 195 speaks for itself, and courts must carry its written word into effect. Uhl v. Ohio River Railroad Company, 51 W. Va. 106,41 S.E. 340.
For the reasons given, and because of the controlling authority of the statutes, the reasoning employed and the conclusions reached in the prior decisions of this Court, and the persuasive force of numerous cases of highly respectable courts of last resort in other jurisdictions, which I have cited and quoted from to an extent which could hardly be justified except for the importance of the question involved, I can not agree to the conclusion reached by the majority in this case.