Welch's Appeal from Probate

A husband and wife were divorced upon her petition, and the custody of a child of two years of age was given to the mother. No alimony was prayed for, and the husband, in consideration that none would be claimed, promised to give the wife, and after the divorce gave her, his note for $800. He died a ' year later. Held that his estate was liable to the mother for a fair proportion, according to his pecuniary ability when living, of the expense incurred by her in the necessary support of the child up to the time of his death. The statute (Gen. Statutes, tit. 14, ch. 3, see. 9) which provides that after a divorce the parents of a minor child of the marriage, in need of maintenance, shall contribute according to their respective ability, and that the Superior Court, upon the application of either parent, may make an order for such maintenance, recognizes the duty of the father in the present case to have contributed to the support of the child. This statute was passed since the decision of Finch v. Finch, 22 Conn. B., 411, and has modified the law as laid down in that case. Eight years before the divorce a policy of insurance for $1,000 was issued upon the life of the husband upon the application and for thfe benefit of the wife, ■ the premium being payable in ten yearly installments. The wife held the policy for several years, but at the time of the divorce it was in the husband’s possession. He paid the premiums, she occasionally contributing small sums. Both before and after the divorce he promised her that he would keep up the -policy by paying the premiums, but there was no consideration for his promise except such as grew out of the facts. He however neglected to pay the next premium falling due after the divorce, and she, relying on his promise, reglected herself to provide for it, and the policy lapsed, and soon after he died. If it had been surrendered while in force the wife would have been entitled to a paid-up policy of $800. Held that the husband’s estate was not liable to the wife for the value of the policy.

Appeal from the doings of commissioners on the insolvent estate of George L. Welch, deceased, in disallowing a claim of the appellant; brought to the Superior Court in Hartford County. The following facts were found by a committee: ' The appellant was, on the 8th day of May, 1860, married to George L. Welch, the decedent, of Berlin in this state, with whom she lived as his wife until the 18th day of May, 1873, when, upon her petition, she was lawfully divorced from him by a decree of the Superior Court. By the decree of divorce, the custody of Howard B. Welch, a child of the parties by the marriage, then of the age of two years and sis months, was awarded to the appellant. No alimony was asked for in the petition or granted in the decree, but in consideration that the petitioner would omit the prayer for alimony in her petition, the said George promised to pay her the sum of eight hundred dollars, for which, after the divorce was granted, he gave his note payable three years from date with interest, which note was allowed by the commissioners and is not the subject of controversy in this appeal. After the divorce was obtained the appellant supported, at her own expense, said minor child, and furnished it with necessary board, clothing, medicine, and nursing, and continued such support from the 13th day of May, 1873, until the 6th day of July, 1874, at which last mentioned date the said George L. Welch died. If, upon the foregoing facts, the court should be of opinion that the estate of the said George L. Welch was liable to pay the appellant a fair proportion of the necessary expense of such support according to his pecuniary ability during his life to contribute to that object, the committee found that one hundred and eighteen dollars would be a just and fair proportion of such expense for his estate to pay. The appellant, on the 2d day of September, 1865, while the marriage existed, made a written application to the Continental Life Insurance Company, located in the city of Hartford, for a policy of insurance upon the life of her husband, then about twenty-eight years of age, in the sum of one thousand dollars, for the whole term of his life. The application was signed by her alone, but the statement of questions and answers annexed to the application was signed by both. Pursuant to the application, the insurance company issued a policy of insurance, bearing date September 4th, 1865, whereby, in consideration of the representations made in the application, and of the sum of $46.62, in the policy acknowledged to have been paid by the appellant, and of the annual premium of $46.62, to be paid on or before the 4th day of September every year during the term of ten years, the company insured the life of said George L. Welch, for the sole use of the appellant, in the sum of one thousand dollars, for the term of his life; which sum, after deducting premium notes unpaid, the company by said policy agreed to pay the appellant, within ninety days after due notice and satisfactory evidence of the death of said George L. Welch and proof of claim. For several years the appellant had the policy in her possession, but afterwards, and before the divorce was granted, said George L. Welch had possession of it and retained it after the divorce. All the annual premiums that were paid were in fact paid by said George, the appellant furnishing him occasionally some money of her own for that purpose. Before the divorce was granted, and also afterwards, said George promised the appellant that he would attend to the payment of the annual premiums himself, so that the amount insured in the policy should be secured to her; and the appellant, relying upon his doing it, neglected to pay the premiums herself; and she did not know that there had been any failure to pay the same till after the decease of said George, and after the policy had been forfeited for non-payment of premiums. The said George paid eight of the annual premiums, but neglected to pay the premium due September 5th, 1873, and the policy thereupon lapsed and determined, and the insurance company was no longer liable to pay the sum insured or any sum thereon. If the policy had been surrendered while in force, the appellant, at the time it was allowed to lapse, would have been entitled to receive, by the conditions of the policy and the rules of the company, a paid-up policy in the sum of $800. And the cash value of the policy on the day it was allowed to lapse, if it had been surrendered, after deducting premium notes outstanding, was $179.24. There was no consideration for the promise on the part of said George L. Welch to pay the premiums himself, unless in the opinion of the court the facts herein found show such consideration^ The amount of money furnished by the appellant to said George to assist him in the payment of the premiums amounted in all to the sum of $77. There was no promise on the part of said George to return this money to the appellant, and no agreement of any kind relative to the money so paid, unless the same can by law be implied from the facts found. Upon these facts the case was reserved for the advice of this court upon the following questions: 1st. Whether the appellant is entitled to recover the expense of supporting the child referred to in the report. 2d. Whether the appellant is entitled to recover upon the facts found relating to the life insurance policy for $1,000, and if so, what is the rule of damages.