[5] ID. DEATH OF PARENT SUPPORT OF CHILD-RIGHTS OF SUPERVISORS.-Section 205 of the Civil Code, giving the supervisors of the county a right to claim provision for the support of a minor child from a deceased parent's estate, can only be invoked when the minor has become, or is about to become, a public charge, and has been left unprovided for by a deceased parent chargeable with its support; and, in this particular, the code does not make any distinction between a legitimate and an illegitimate minor child.

[6] ID.-CHARGE AGAINST ESTATE-POWERS OF LEGISLATURE.-Succession, or the transmission of property, is a matter of legislative grant, and not merely a natural right, and any property so taken may be charged by the legislature with any burden that the wisdom of the legislature may impose.

[7] ID.-RIGHT TO SUE ADMINISTRATOR-STATUTORY CONSTRUCTION.— The granting of a right to sue an administrator or executor is a privilege extended by the legislature and, when the legislature sets forth what actions may be prosecuted, it necessarily excludes all those not mentioned.

[8] ID.-SUPPORT OF MINOR CHILD-CHARGE AGAINST ESTATE OF DECEASED PARENT STATUTORY CONSTRUCTION.-Even though the correct construction of section 205 of the Civil Code and section 1582 of the Code of Civil Procedure gives to the counties, acting through boards of supervisors, the right to subject a parent's estate to the support and maintenance of a minor child when he is about to become a public charge, or has become a public charge, it does not permit the reading into section 196a of the Civil Code of a similar grant of authority, when the language of that section contains no provision affecting the estate of a deceased person similar to those found in section 205 of the Civil Code. [9] ID.-SUPPORT OF ILLEGITIMATE CHILD-LEGAL PROCEEDING EQUITY. While it is true that, after all the legal facts have been established and found, the court, in the enforcement of the judg ment reached, after the entry of such judgment, exercises certain equitable powers, a proceeding relating to illegitimate children and the requiring of support thereof by the putative father presents a pure legal question.

[10] ID.

DEATH OF PUTATIVE FATHER ABATEMENT OF PROCEEDINGS FOR SUPPORT.-Such proceeding under our Civil Code is a modified form of bastardy proceedings which were punitive in character and subsisted prior to the creation of civil remedies, and under the common law all such proceedings abate upon the death of the putative father; and such common-law rule as to the abate

10. On abatement of bastardy proceedings by death, note, 30 L. B. A. (N. S.) 1166.

ment of such proceedings, upon the death of the putative father, has not been changed by the legislature of this state.

(1) 7 C. J., p. 955, n. 95, p. 956, n. 8. (2) 7 C. J., p. 955, n. 99, p. 987, n. 53, p. 997, n. 90 New. (3) 1 C. J., p. 169, n. 65; 7 C. J., p. 1001, n. 63 New; 19 C. J., p. 360, n. 8. (4) 19 C. J., p. 341, n. 86 New. (5) 24 C. J., p. 238, n. 86 New. (6) 18 C. J., p. 804, n. 53, 56, p. 806, n. 83. (7) 24 C. J., p. 731, n. 75. p. 972, n. 13. (9) 7 C. J., p. 967, n. 54, 55 New. p. 967, n. 57, p. 972, n. 13.

(8) 7 C. J., (10) 7 C. J.,

APPEAL from a judgment of the Superior Court of Colusa County. Ernest Weyand, Judge. Affirmed.

The facts are stated in the opinion of the court.

Fred C. Peterson and Alfred J. Hennessy for Appellant.

Atran & Sheets for Respondents.

PLUMMER, J.-This action is based upon section 196a of the Civil Code and is prosecuted for the purpose of securing a judgment or decree providing for the maintenance of an illegitimate minor child out of the estate left by its putative father. A demurrer, filed by the defendants to the plaintiff's complaint, was sustained without leave to amend, and from the judgment entered, following the sustaining of the demurrer, the plaintiff appeals.

The allegations of the complaint are to the effect that the plaintiff, Jack Myers, is an illegitimate child of Edward B. Myers and one Norine Vaughn; that the said Edward B. Myers died testate prior to the birth of the plaintiff herein; that, by the last will and testament of said Edward B. Myers, all of his estate, both real and personal, was devised to the defendant Jake Myers; that the mother of the plaintiff, Norine Vaughn, is without means to furnish the plaintiff adequate support, maintenance, and education suitable to his station in life, and that the sum of $100 per month is necessary for said purpose, and that a charge should be placed upon the estate of the said Edward B. Myers, payable out of the same, until the said minor shall have reached the age of majority. A detailed description of the real estate left by the said Edward B. Myers at the time of his death is set forth in the complaint.

While the argument of counsel in this case has been both learned and interesting, a decision of the questions involved rests almost entirely upon the provisions of the codes. Section 196a of the Civil Code, relating to the support of an illegitimate child, reads: "The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, and in such action the court shall have power to order and enforce performance thereof, the same as under sections 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife." Section 138 of the Civil Code, referred to in section 196a, empowers the court, during the pendency of an action for divorce, or, at the final hearing thereof, or, at any time thereafter during the minority of the child of the marriage, to make such order for the custody, care, education, maintenance, and support of such minor child, as may seem necessary or proper, and may at any time modify or vacate the same. Section 139 is similar in purport as to the power of the court to provide for maintenance. Section 140 of the Civil Code relates to procedure, and, also, to the remedies which may be adopted to enforce the judgment or decree of the court by providing for the giving of security, the appointment of a receiver, or by other remedy applicable to the case. Section 205 of the Civil Code has for its purpose the enforcing of maintenance of minor children. It reads: "If a parent chargeable with the support of a child dies, leaving it chargeable to the county, and leaving an estate sufficient for its support, the supervisors of the county may claim provision for its support from the parent's estate by civil action, and for this purpose may have the same remedies as any creditors against that estate. and against the heirs, devisees and next of kin of the parent." Section 200 of the Civil Code is also called to our attention, but the fact that the mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings does not, we think, have any particular bearing upon the obligation imposed by section 196a of the Civil Code. [1] Prior to the adoption of this last-mentioned section, there was no legal obligation resting upon the father of an illegitimate child to furnish it support or give it an education. In 1913, however, the legislature of this state added this section to the

code and thenceforth it became the mutual obligation of both the father and mother. [2] In the enforcing of the obligation, it is, of course, necessary to establish the fact of parentage. The section fixing this obligation upon the father of an illegitimate child does not, in and of itself, presuppose that a judgment decreeing the fact of parentage must first be had and obtained before any suit may be maintained for maintenance or support. There appears to be no valid reason why the fact of parentage and the question of the necessity of support and, also, of the ability to support may not all be litigated and determined in one proceeding. In other words, if the action can be maintained provided for, under the terms of section 196a, all the facts and circumstances necessary to support a judgment or decree for maintenance and support may be inquired into and determined, and the enforcement thereafter of the judgment depends entirely upon the rights and interests which the illegitimate minor has acquired in and to the property of his putative father and the liens or charges upon and against the property of the putative father that may have been adjudged and decreed.

[3] In divorce proceedings and the remedies there provided which are made applicable to actions seeking maintenance for illegitimate children, it has frequently been held that the power of the court is a continuing one until the minor child, of which the court has jurisdiction, requires no further aid or payment out of a parent's property, and it seems that this power does not necessarily terminate with the death of the parent whose property has been charged with such support. In Stone v. Bayley, 75 Wash. 184 [48 L. R. A. (N. S.) 429, 134 Pac. 820], the supreme court of Washington, in considering the statute of that state, which authorizes courts in divorce proceedings to make provision for minor children, thus expresses its views: "This statute clearly recognizes the power of the court to burden the property for the benefit of children. Under this statute we have repeatedly held that that jurisdiction of the court was a continuing one 'so long as there is a minor child whose maintenance and welfare are provided for in the decree.' Poland v. Poland, 63 Wash. 597 [116 Pac. 2]; Fickett v. Fickett, 39 Wash. 38 [80 Pac. 1134]; Dyer v. Dyer, 65 Wash. 535 [118 Pac. 634]. The power of the court is not confined to the imposition of a mere personal claim. King v. Miller, 10 Wash. 274 [38 Pac.

1020]. In the absence of statutory inhibition, it is the general rule that such provisions for support do not necessarily terminate upon the father's death. 'A decree directing a father to provide for the support of his minor children until the further order of the court is not necessarily discharged by his death.'

The opinion of the supreme court of Washington is a learned and comprehensive one, fully supported by the authorities stated and clearly establishes the rule that when a decree has been entered providing for maintenance during minority, it is a continuing one and does not abate simply by the death of the parent against whose estate such maintenance is made a charge. [4] The very terms of section 140 of the Civil Code include the idea of making provision for a continuing period by the requirement of the giving of security, or the appointment of a receiver, or by other remedy applicable. To the same effect is the rule laid down in section 309 of Ruling Case Law, page 484, where it is stated, "there is no sound reason why the estate of a father should not be charged with the obligation to provide support for his minor children after his death," etc.

These remedies, however, are attendant upon the prosecution of an action for divorce and the entry of final judgment therein. "It is well settled that an action for divorce does not survive the death of either party." (1 Cal. Jur., p. 74, sec. 44.) In such event, other provisions of the code must be relied upon whenever maintenance is sought for minor children. The various provisions of the Code of Civil Procedure relating to the maintenance of the widow and minor children, or of the minor children, are the only ones which are peculiarly and particularly enforceable by and on the part of those directly interested and for whose support and maintenance allowances or money payments are sought.

[5] Our attention has been called to another section of the Civil Code, which, under certain contingencies, gives certain public authorities the right to prosecute actions for support of minor children. We refer to section 205 of the Civil Code, supra. It would seem that this section can only be invoked when the minor has become, or is about to become a public charge, and has been left unprovided for by a deceased parent chargeable with its support. In this particular, we do not find that the code makes any distinction be