WELCH v. CLIBURNE.

[94 Miss. 443, 49 South. 184.]

BASTARDY.-A Married Woman, Deserted by her husband upon his finding that she was pregnant by another man at the time of the marriage, cannot, after the birth of the child, maintain bastardy proceedings against the father. The statute contemplates that single women only can prefer such complaints. (pp. 587, 588.)

R. L. & E. L. Dent and J. P. Edwards, for the appellant. Hilton & Hilton and Chalmers Alexander, for the appellee. 445 WHITFIELD, C. J. This was a proceeding under chapter 15, Code of 1906, to compel appellee to support a child, alleged to be a bastard. The appellant, after she had been gotten with child, as alleged by appellee, married another man, who, upon finding out that she was pregnant, deserted her. The child was born some months later, and appellant then filed this proceeding against the appellee, she being at the time of the filing of the complaint a married woman. The point was made in the court below that she could not maintain the proceedings marked out in said chapter 15, because such chapter refers alone to a single woman who shall have a bastard. This point was maintained by the court below, and the proceedings dismissed.

We think the action of the court below was correct under our statute. The language of Code of 1906, section 268, is: "When any single woman shall be delivered of a bastard, or being pregnant with a child, which, if born alive, would be a bastard, shall make complaint," etc. A child born in wedlock is presumed to be legitimate until the contrary is shown; and the child referred to in the second clause of the statute means a child which, when born, will be in the eye of the law a bastard-that is to say, the child of a single woman. Code of 1906, section 273, provides that "the death of the bastard, if the mother be living and unmarried, shall not be cause of abatement or bar to any prosecution for bastardy. "This clause and other expressions in the chapter, but especially the language of section 268, plainly show that the provisions of the chapter apply alone to single women. The case of State v. Ingram, 4 Hayw. (Tenn.) 221, found in 3 Tenn. (Cooper's ed.) 377, is cited by the learned counsel for appellant; but the statement of facts in that case shows that the woman was a single woman at the time she charged Ingram with being the father of her child, the child having been born while she was such single woman. is, therefore, of no authority here.

446

That case

The cases generally may be found cited in 5 Cyc. at page 650, note 48. In the case of Judge of the County Court of Limestone v. Kerr, 17 Ala. 328, the point is expressly de

cided as we decide it, and upon a like statute. In that case Mary Simpson filed a complaint against James H. Kerr for the support of her bastard child. It appeared, on the trial that Mary Simpson was a married woman, but that her husband had abandoned her several years before the birth of the child, and speaking of this the court said: "On this evidence, the court instructed the jury that, if they believed that Mary R. Simpson was a married woman, they must find for the defendant, notwithstanding they might believe him to be the father of the child. The statute under which these proceedings were had evidently contemplates that a single woman alone can prefer a complaint of bastardy against one who may be the father of the bastard. The language of the act is: "When any single woman, who shall be pregnant or delivered of a child which by law would be considered a bastard, shall make complaint,' etc. As this statute is penal in its nature, it must be strictly construed, and a married woman cannot be permitted to prefer the complaint, although she be delivered of a bastard during coverture. This construction was placed on the act by this court in the case of Pruitt v. Judge of Barbour County Court, 16 Ala. 705." This statute is like ours, and we think the proper construction was put upon it by the supreme court of Alabama.

The judgment is affirmed.

The Natural Father of an Illegitimate Child cannot be Held for Its Support, if the mother during the pregnancy marries another man who has full knowledge of her pregnancy: Miller v. Anderson, 43 Ohio St. 473, 54 Am. Rep. 823; State v. Shoemaker, 62 Iowa, 343, 49 Am. Rep. 146.

CARPER v. CARPER,
[94 Miss. 598, 48 South. 186.]

ALIMONY-Contempt in not Paying-Debtors of Husband.— Although a husband can be proceeded against for contempt in not paying alimony, his debtors cannot be so punished for failing to pay their debts into court as ordered in the divorce proceeding. (p. 589.)

Suit by Lucy Carper for divorce. The suit, besides being for a divorce, took on something of the nature of an attachment in chancery. Debtors of the husband were made parties defendant, were charged with being indebted to him, and enjoined from paying him. They answered and each admitted an indebtedness as charged. An interlocutory decree was granted awarding the complainant alimony pendente lite and suit money, and directing the defendant debtors to pay into court the sums they admitted to be due. The husband failed to pay the alimony and suit money decreed, and his debtors failed to pay into court the sums

which they admitted were due. Subsequently the complainant began proceedings against them for contempt in failing to make the payments. From a decree dismissing the contempt proceedings, the complainant appeals.

Lamb & Johnson, for the appellant.

No counsel appeared for the appellees.

660 FLETCHER, J. We have no difficulty in reaching the conclusion that the chancellor very properly refused to permit the debtor of the defendant, against whom a decree for alimony pendente lite and counsel fees had been rendered, to be harassed with contempt proceedings. He was an ordinary debtor of the respondent, and to punish as a contempt of court his failure to pay his obligation would be nothing more nor less than an imprisonment for debt. He occupies an attitude entirely different from the husband, who after proper inquiry was directed to pay alimony and suit money. Because, upon well-settled principles, the husband can be required to defray these charges or suffer the penalty imposed for contempt of court, it does not follow that the court may extend this authority over third persons who are so unfortunate as to be indebted to the husband. Authorities dealing with trustees in charge of specific funds, or persons having the control of specific property, have no application to a mere indebtedness, which can never be treated as a fund under the control of the court.

Affirmed.

A Decree for Alimony may be Enforced against the husband by contempt proceedings: In re Cave, 26 Wash. 213, 90 Am. St. Rep. 736; Webb v. Webb, 140 Ala. 262, 103 Am. St. Rep. 30, and cases cited in the cross-reference note thereto. As to what equitable remedies may be invoked for the purpose of enforcing the payment of alimony, see Wetmore v. Wetmore, 149 N. Y. 520, 52 Am. St. Rep. 752; Lynde v. Lynde, 162 N. Y. 405, 76 Am. St. Rep. 332; White v. White, 130 Cal. 597, 80 Am. St. Rep. 150.

ROBERTSON v. ROBERTSON.

[94 Miss. 645, 47 South. 675.]

TRUSTS.-Where a Husband and Wife Agree That on the Death of either all their property shall belong to the other for life, and that on the death of the survivor it shall be divided by commissioners appointed for that purpose among their respective designated kindred, and that the instrument shall operate as a conveyance and as a will, if the instrument is construed as a covenant to stand seised, the surviving wife cannot, there being no fraud or mistake, maintain a suit to cancel it as a cloud on title and have the estate vested in her, and if the instrument is construed as a mutual or joint will, she cannot revoke it as to the estate belonging to the deceased, which became vested at his death. (p. 591.)

WILL.-A Mutual or Joint Will Executed by Husband and Wife cannot be revoked by the survivor as to the estate belonging to the deceased, which became vested at his death. (p. 591.)

William A. Robertson and his wife Elizabeth, executed the following instrument:

"This agreement made this 27th day of October, 1897, between William A. Robertson and his wife, Elizabeth Robertson, of Holmes county, Mississippi, witnesseth: That we mutually agreed that during our lives any property that we now own or may hereafter acquire, shall, at the death of either, descend to the other for his or her life, that at the death of the survivor, all of said property shall be divided into two equal parts, half to descend and be inherited by the children of John G. Robertson, and the other half to descend and be inherited by the two nieces of Mrs. Elizabeth Robertson, Mrs. Laura Cullifer, and Mrs. Sarah Anderson, who resides at Halifaxton, Halifax county, North Carolina. If we do not divide the lands into two equal parts during our lifetime, then after the death of the survivor, Mr. John G. Robertson, or the guardian of his children, shall appoint one disinterested commissioner and Mrs. Cullifer and Mrs. Anderson shall appoint another disinterested commissioner and these two shall appoint a third and these three or a majority shall divide the land and personal property according to valuation and each set of heirs shall have the control and ownership of their half. If necessary for a fair and equal division, the commissioners may sell all or a part of the personal property and divide the proceeds, the report of the commissioners shall be entered of record and operate as a deed.

"It is mutually agreed that this instrument shall operate as a conveyance and as a will and that John G. Robertson is appointed as guardian of his children and executor of personal property subject to its division by commissioners as aforesaid.

"Witness our signatures the day and year aforesaid. "W. A. ROBERTSON.

her

"ELIZABETH X ROBERTSON.
mark

"Attest: J. B. HOUSE.

JAMES J. SHANKS.

"State of Mississippi,

Holmes County.

"Personally appeared before me, the undersigned justice of the peace, W. A. Robertson and his wife, Elizabeth Robertson, who severally acknowledged that they signed and delivered the foregoing instrument on the day and year.

therein named and in the presence of the attesting witnesses who signed the attestation in their presence.

"Witness my official signature this November 1st, 1897. "W. H. PIERCE, "Justice of the Peace."

A short time after the instrument was executed, Mr. Robertson died. Mrs. Robertson continued in the occupancy of the property for a number of years, John G. Robertson, a nephew of her husband, managing her affairs. Subsequently her two nieces died, after which she and their children filed this suit against John G. Robertson and his children to cancel the instrument above set forth. The bill alleged that Mrs. Robertson believed she was executing a will, revocable at her pleasure, and that, being illiterate, she was ignorant of the effect of the instrument. The purpose of the bill was to revoke the agreement, and to cancel the title of John G. Robertson's children to a one-half interest in the property, so that the whole estate would, by operation of law, become vested in Mrs. Robertson.

Tackett & Elmore, for the appellants.

A. M. Pepper, for the appellees.

651 FLETCHER, J. The testimony of Mrs. Elizabeth Robertson having been properly suppressed, no satisfactory evidence remains upon which we can say safely that the property in controversy was the 652 sole property of appellant Mrs. Robertson. Nor can we hold that the agreement made between the parties should be avoided on account of mistake, undue influence, or fraud. We think the chancellor was correct in holding that the agreement was fairly entered into and represented the wishes of the parties at the time. It only remains, therefore, to determine whether, giving the agreement its full legal effect, the bill can be maintained. This agreement will be set out in full by the reporter. The bill seeks to cancel this instrument as a cloud upon the title of complainants, and was manifestly framed upon the theory that the writing conveyed some present vested estate or interest to the appellees, but that on account of the fraud in its execution it should be now set aside and held for naught. It is now sought to have the instrument declared a will, and therefore revocable at the pleasure of appellant Mrs. Robertson. If the instrument be construed as a compact, or, perhaps more accurately, a covenant to stand seised to the use of the grantees named, which construction seems to us the correct one, then clearly the suit must fail. On the other hand, if the instrument should be held to be a mutual or even a joint will, it is clear that the surviving testator cannot revoke the will as to the estate belonging to the deceased, which became vested at the death.