Patricla LEE, Charles McClenny Lee and Linda Mason Lee, infants by their next friend, T. J. Collier,
v.
H. Irwin COFFIELD, Jr., Executor and Trustee under the Will of the Estate of Charles Clifton Lee.
No. 97.
Supreme Court of North Carolina.
February 27, 1957.*727 B. B. Hollowell, Bayboro, and R. E. Whitehurst, New Bern, for plaintiff-appellants.
Ward & Tucker, New Bern, for defendant-appellee.
RODMAN, Justice.
The case presents two questions: (1) Can liability be imposed on the estate of the deceased father beyond his contractual *728 obligations for the support of his minor children residing with their mother?
The liability of the father's estate to make the monthly payments to the mother for the support of the minors as provided in the deed of separation is not questioned.
So far as liability of the estate is concerned, the only question is: What obligation, if any, exists in favor of the minors beyond the monthly payments provided for in the deed of separation? The answer is none. Elliott v. Elliott, 235 N.C. 153, 69 S.E.2d 224. It was there held that the obligation imposed by the common law on a father to support his minor children terminated at his death. Additional authorities supporting the conclusion there reached may be found in the notes 18 A.L.R. 2d 1126.
(2) Can the properties willed by the father to be distributed to the minors as they reach their twenty-fifth birthday be used to reimburse their mother for monies expended by her for their care? This question likewise requires a negative answer.
The law in this State imposes a duty on both parents to provide, within their means, for the necessary support of their minor children. This is primarily an obligation of the father. Smith v. Hewett, 235 N.C. 615, 70 S.E.2d 825, 32 A.L.R. 2d 1055; Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R. 2d 905; In re TenHoopen, 202 N.C. 223, 162 S.E. 619; Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490.
The fact that the father, during life, is primarily responsible for the support, maintenance, and education of his minor children does not relieve the mother of her responsibility. Upon the death of the father, a duty rests on the mother to the best of her ability to provide for the support of her children. This we conceive to be the common law as adopted in North Carolina. Maryland Casualty Co. v. Lawing, 225 N.C. 103, 33 S.E.2d 609. A like conclusion has been reached in other states. Whitehurst v. Singletary, 77 Ga.App. 811, 50 S.E.2d 80; Pettigrew v. Williams, 65 Ga.App. 576, 16 S.E.2d 120; Davidson's Adm'x. v. Davidson, 274 Ky. 28, 117 S.W.2d 1044; In re Nolan's Guardianship, 216 Iowa 903, 249 N.W. 648; Workman v. Workman, 174 S.C. 490, 178 S.E. 121; In re Siems' Estate, Sur., 179 N.Y.S. 875. It is true that expressions can be found in cases from other states indicating a contrary view, 46 C.J. 1276 and notes, but we think the view here expressed is the sounder view. Our view of the common law is recognized by statute, and the willful failure to provide adequate support is, as to the offending party, made a misdemeanor. G. S. § 14-322.
This action is predicated on the theory that the minors and their estate are legally liable to their mother for their support or for such sums as she may have expended for them in excess of the amounts provided by her deceased husband. There is no allegation that the mother is without adequate means to properly support her children or to supplement to the extent necessary the funds available from her husband's estate under the separation agreement.
The husband's will is dated 8 August 1953, the same day the separation agreement was made. Apparently the parties then thought that the monthly payments were either adequate for the support of the children or that the mother, with her own estate, could and would provide such supplementary funds as might be necessary. Provision was made in the agreement to protect against a rising cost of living.
The father's estate has not been settled. It may, as alleged in the complaint, be solvent; but what amount will remain after the $10,500 fixed by the separation agreement for the college education is not alleged.
The estate of the minors cannot be used to pay a nonexistent debt to their mother. The property of minors can only *729 be used for their support when the parents are unable to properly provide such support. Upon appropriate allegations and findings of fact, the properties of the minors can be used to provide for their necessary support. Maryland Casualty Co. v. Lawing, supra. The judgment is
Affirmed.