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SECTION 38. DEFINITION.
Community property is a species of property; in the nature of partnership property, vested by law in the husband and wife by virtue of the marriage relation,
SECTION 39. WHERE IN FORCE.
It is in force in those states which take their laws in this respect from the Roman, French, Spanish or Mexican law, e. g. Texas, California, Washington, Louisiana, Idaho, Nevada.
SECTION 40. PRINCIPAL INCIDENTS.
Property may become community property either by the express acts of the parties or by the action of the law, the law favoring this system of property. The rights of husband and wife in such property are equal. The community property is not liable for individual debts.
SECTION 41. DISPOSAL. Upon the death of the husband or wife, the community property, vests, in the absence of ante-nuptial, stipulations to the contrary, one-half in the surviving spouse and one-half in the heirs of the deceased. In the case of divorce, if the court granting such divorce fails to make any order relative to the community property, the parties to the former marriage, become thereafter tenants in common in such property. In Louisiana, upon the death of the wife, the husband
has a life estate in the half of the estate which descends to heirs of wife.
SECTION 42. CHANGES.
Any ante-nuptial agreement made by the parties to a marriage, as to the possession of their property will be binding and will supercede the usual community rights. The rules governing community property are regulated by statute, and vary considerably in the different states.
PARENT AND CHILD.
SECTION 43. DEFINITION.
The words child or children as used in law, always mean legitimate children. The word child is often used as denoting a person under the age of 21 years, that is an equivalent to the word infant. It is also sometimes used with reference to young children as in laws for the prevention of cruelty to children.
SECTION 44. LIABILITY OF FATHER FOR TORTS AND
CRIMES OF CHILD.
A parent is responsible for any tort of his child when said tort was committed under his instructions, with his connivance or consent, in his presence without objection, under circumstances from which it may be inferred that he had knowledge of the act and made no effort to avert it, or where the tort would not have been committed except for his negligence or refusal to take proper precautions to prevent an act of which he may be said to have had constructive notice. In the absense of such special circumstances the father is not liable for the torts of his child. The father is not liable for the criminal actions of his child unless he was in some way personally connected with such actions.
Drinks vs. Grey, 3 Fed. Rep., 862;
Beedy vs. Reding, 16 Me., 364, where the parent was held liable in action of trover for articles taken by the child with his knowledge. Sharp Williams, 41 Kans., 56, where the
parent was held liable in a case where the child assisted in
ducking a school-master.
Wilson vs. Garrard, 59 Ill., 51;
SECTION 45. DUTY OF PARENT TO SUPPORT CHILD.
The duty of parents to provide for the maintenance of their children is a principle of natural law, and it is a duty which the municipal law of all well regulated nations have taken care to enforce. It is held by some courts that this duty is a mere moral obligation and is not enforceable in law independently of statutory provision on the subject, but by the weight of authority, it is held that by the common law, the father is legally bound to support his minor children, if able to do so, even though they may have property of their own." The property of the parent does not excuse him from the duty to support his children. A child may forfeit his right to be supported by his father by improperly leaving his father's house or refusing to obey his father. A father is not liable for the support of a child who is improperly living with his mother apart from the father.
The duty to support the children rests primarily upon the father but in case of his death or inability it falls upon the mother.
The divorce of the parents of a child does not affect the duty of either parent as to the support of the child. The question as to the custody and support of the children of the marriage is, however, generally settled in the decree of the divorce. A grandparent is under no legal duty to support his grandchildren. A step-father is ordinarily not liable for the support of his step-children, but after he receives such child Kelley vs. Davis, 49 N. H., 187, • Wing vs. Hibbert, 8 Ohio Dec., 6 Am. Rep., 499.
65; Elliott V8. Gibbons, 30 • Am. & Eng. Ency. of Law. Vol.
Bart. (N. Y.), 498. XXI, p. 1049; Ganner
• Johnson vs. Onstead, 74 Mich., Skinner, 71 Bush. (K. Y.), 120; 437; Cook ve. Bennett, 51 N. Gilley vs. Gilley, 79 Me., 292,
H., 85. 1 Am. St. Rep., 307; Perkins vo. Westcoat, 3 Colo. App., 338
into his home as a member of his family he becomes liable for his support.'
SECTION 46. RIGHT OF PARENT TO SERVICES AND
EARNINGS OF CHILDREN.
The father has a right to the services and earnings of his minor children while under his care and protection, unless such right has been voluntarily relinquished by him. This is based upon the idea of compensation to the parent for the duty of maintenance.
A child can recover for domestic services rendered to a parent only where there has been an express promise on the part of the parent to pay for such services. The burden of proof is on the child to prove such promise. The marriage of a child, after reaching the age of consent, will work a complete emancipation of the child from the control of the father.
A mother is entitled to the earnings of her minor children after the death of her husband. The mother would also be entitled to the earnings of her children when both she and the children had been deserted by the husband and father and the children were living under her care. SECTION 47. ADVANCEMENTS AND "HOTCHPOT."
An advancement is a gift of property made by the parent to the child, during the lifetime of the parent, with the intention that it shall be applied on whatever share of the estate of the parent the child would be entitled to after the death of the parent. ? Mowbry vs. Mowbry, 64 Ill., 383
inferred from slight circumWhether a step-father in receiving his step-children into 8 Bullett vs. Worthington, 3 Md. his home assumes the relation
Ch., 99; Mason vs. Hutchins, of parent, is largely a question
32 Vt., 780; Canover vs. Coopof intention and the intention
er, 3 Barb. (N. Y.), 116; Allen to do so should not be bastily
Vs. Allen, 63 Mich., 635.