HELEN M. EVANS, Respondent, v. THOMAS B. EVANS, Appellant, 154 Cal. 644

HENSTTAW, J. In 1903 the superior court of San Benito County granted plaintiff a divorce from defendant upon the ground of his extreme cruelty. In accordance with an agreement of the parties at that time entered into, the custody of the children was given to the defendant, “subject to the further order of the court,” and defendant was “required to maintain and educate them.” Defendant moved with the children to the county of Santa Clara, and there remarried and continued to reside.

In 1906 this plaintiff made application to the court of San Benito County to award to her the custody of the children, upon the ground that the father had proved, by reason of his cruelty to them, to be an unfit and improper person to have their charge. To this application was joined a request for an allowance of thirty dollars per month for their maintenance. The probation officers of Santa Clara County at about the same time had taken charge of the children and placed them temporarily in the Orphans’ Home at Sa.n Jose, their father having been arrested for cruelty to them.

These matters were disclosed in evidence before the superior court of San Benito County at the hearing of this application, with further testimony of the cruelty which the father had practiced upon the children. The court then made its order in accordance with the prayer of the petition.

Upon appeal the contention is made that the order decreeing payment of a monthly sum for the maintenance of the children was in excess of the jurisdiction of the court, and therefore void, because in the original judgment and decree in divorce no provision had been made for such maintenance, and there was no reservation of the right to make such provision in the future. This contention, however, is contrary to the facts.

By the agreement of the parties, adopted by the court, the wife did relinquish any claim to mainteranee or support for herself, but she did not attempt to do this upon behalf of her children, and if she had done so the act would have been nugatory.

A wife may abandon or forfeit her own claims to be supported by or from the estate of her divorced husband, but she cannot forfeit or abandon the claims of the children. (Ex parte Gordan, 95 Cal. 374, [30 Pac. 561].) Moreover, the decree of divorce distinctly imposed upon the father the duty “to maintain and educate the children.” So that the decree is not, as appellant contends, silent upon the matter. This court had occasion, in the recent case of Harlan v. Harlan, ante, p. 341, [98 Pac. 32], to consider the question .of the power of the court in cases such as this.

The authorities are there reviewed, and the conclusion reached and expressed that the court has power to make future provision for the children’s care, custody, education, and maintenance, as was done in this case. It is made to appear that an application for letters of guardianship of the persons of these neglected children was pending in the superior court of the county of Santa Clara at the time the order here appealed from was made by the superior court of San Benito County.

Upon this appellant bases an argument to the effect that the superior court of Santa Clara County had acquired jurisdiction and that the superior court of San Benito County was, therefore, without power to act. To this proposition is sought to be applied the case of Younger v. Younger, 106 Cal. 381, [39 Pac. 779]. The Younger ease is not in point. In the Younger ease the custody of an infant child, by the decree of divorce had been awarded to the mother.

With her consent the child was subsequently regularly adopted by its grandfather, and this court held that such adoption so changed the status of the child that the superior court lost jurisdiction to modify its decree relative to the custody. Such is not the situation here presented. Manifestly, the application for guardianship in the superior court of Santa Clara County was for the sole purpose o'f sheltering and harboring the children until some permanent arrangement could be perfected for their care and custody. No letters of guardianship had been issued.

The superior court of San Benito County was, therefore, not without jurisdiction to proceed. The order appealed from is, therefore, affirmed. Lorigan, J., and Beatty, C. J., concurred.