It is argued in the dissenting opinion that, as a man is required to pay from the community property of himself and his second wife for the support of his children by a prior marriage, and, as under the statute, one may be required to support certain persons related to him by consanguinity, if such persons are unable to earn a livelihood because of bodily infirmity, etc.,
"It must be the law that, if a man and a woman marry, each takes the other, to some extent at least, *Page 489 cum onere, with the understanding that there may be certain demands based upon blood relationship which will have to be met out of community earnings. To hold that before a man can assist his children or his parents who are in need he must procure the formal consent of his wife, would, it seems to me, frequently result in an intolerable situation."
However desirable it might be, or however strong the wish may be, to have the law as the dissenting opinion recites "it must be," the answer is that the law is not what the dissenting judges desire or wish it to be. Any question as to the right of a husband to dispose of community property without the consent of his wife is foreclosed by Marston v. Rue, 92 Wn. 129,159 P. 111, in which we held that the husband cannot of the community property make gifts against his wife's consent, evento his own relatives, although mere trifles may be given by him to the latter under the rule of de minimis. That rule was followed in Parker v. Parker, 121 Wn. 24, 207 P. 1062, where we held that a husband could not, without the consent of his wife, make a substantial gift of community property to his sister.
Until the legislature amends the law or until this court overrules Marston v. Rue, supra, and Parker v. Parker, supra, under our community property law a husband cannot, without the consent of his wife, make a substantial gift of community property to his mother.
When a man and woman marry in this state, each takes the other charged with knowledge of our community property law. So far as the assistance of one's needy children or indigent parents is concerned, it should be remembered that, at the common law, there is no legal liability resting on one relative to support another, however strong the moral duty may be. The duty of providing such support is purely statutory, *Page 490 and the procedure providing for its enforcement is exclusive.Moss v. Moss, 163 Wn. 444, 1 P.2d 916.
"Although the duty of supporting the poor is a public duty, yet it is not a purely public burden. The theory of the law is that the primary duty of affording support to a poor and helpless person rests on those on whom, because of consanguinity, is imposed a natural and moral, though imperfect, duty to relieve and maintain, and that, so long as such primary duty exists and can be enforced, the public should be exonerated from the burden. Within what degree of consanguinity the primary liability shall be on the relatives of the pauper instead of the public is largely a matter for legislative determination. The common law, however, went no further than to impose on husbands the duty of supporting their wives, and on parents the duty of supporting their minor children, though in the case of children so weak mentally as to be unable to support themselves, the duty of the parent does not cease on the majority of the child. It may be said that persons are by the law of nature bound to provide for those in close consanguinity to themselves, who may be in want, but since the law of nature provides no means of enforcing the duty, the matter was early taken up by statute and is now universally so taken care of. The statutes are generally declaratory of the law of nature already existing and are limited to kindred by consanguinity. Even a statute not expressly so limited will not be construed to include relations by affinity, and it is doubtful whether an act providing for the support of persons beyond the realm of moral duty would be constitutional. Such statutes do not embrace illegitimate children within their provisions." 21 R.C.L. 723.
In the dissenting opinion, it is argued that the relationship of parent and child is founded "upon the laws of nature itself," and that, when a man marries a second time, he can be required to support his child by a prior marriage from the community property of the second marriage. *Page 491
The relationship of parent and illegitimate child is also founded "upon the laws of nature itself," yet, in the absence of a statute, such children are not within the class the parent is required to support. Our statute (Rem. Rev. Stat., § 9981 [P.C. § 1693] et seq.), under which one may be required to support relatives who are unable to earn a livelihood, does not expressly or impliedly modify or limit our community property law, the dissenting opinion to the contrary notwithstanding. Neither at the common law nor under any statute of this state may a son be required to contribute from the community property for the support of an indigent parent or for the support of any person except a minor child. When a woman marries a man who has children by a former marriage, she takes him "cum onere, with the understanding" that there is imposed upon her husband the duty, even at the common law, to support his minor children and that the community property must pay for such support. While a son may be required to contribute to the poor of the county thirty dollars monthly, if he fail to provide for an indigent parent, there is nothing in the statute which authorizes exaction of that contribution from the community property of the son and his wife.
A woman who marries a divorced man who is required by the divorce decree to pay a stipulated amount at stated intervals for the support of his divorced wife and the children of himself and that divorced wife, takes that divorced man, "cum onere, with the understanding," with knowledge of the law that the prior claim which must be satisfied from the community property of herself and that divorced man if he cannot satisfy that obligation from his separate property.
It is argued that, by excepting a married female *Page 492 while her husband is alive from suit (Rem. Rev. Stat., § 9983 [P.C. § 1695]), for collection of the statutory payment for support of certain indigent relatives, "the statute by strong implication subjects a married man to such action." Not so. A statement of the argument carries its own refutation. If a female is unmarried, the legal liability may be imposed; but if she is married, there is no liability during the time her husband is alive. A complete answer to the argument that, "Doubtless, the payment required by this statute could be collected out of community property," is that "this statute" does not soprovide, and the question is foreclosed by our community property law and Marston v. Rue, supra, and Parker v. Parker,supra.
The judgment should be affirmed.