This action is brought by tbe two children named in tbe above decree, by tbeir next friend, against tbe same defendant, tbeir father, asking for a decree of maintenance. It is intended to present the question whether tbe father can be decreed to support tbe children. Tbe judge below sustained a demurrer upon tbe ground that there-was no cause of action.
There can be no controversy that tbe father is under a legal as well as a moral duty to support bis infant children (Walker v. Crowder, 37 N. C., 487), and, if be bas tbe ability to do so, whether they have property or not. Hagler v. McCombs, 66 N. C., 345. There is a natural obligation to support even illegitimate children which tbe law not only recognizes, but enforces. Burton v. Belvin, 142 N. C., 153; Kimbrough v. Davis, 16 N. C., 74. Besides, tbe failure to support bis children is a crime. Rev., 3355; S. v. Kerby, 110 N. C., 558.
Tbe liability of tbe father primarily to support tbe children remains as well after, as before a divorce, and even where tbe custody of tbe children bas been awarded to tbe mother. 14 Cyc., 812; 9 A. and E. (2 Ed.), 871. ‘
Tbe relief asked, however, having been granted in tbe proceeding above, this action was improvidently brought.
Action dismissed.
"Walker, J., concurs in result.