CLARK, C. J.
This action is brought by the two children named in the above decree, by their next friend, against the same defendant, their father, asking for a decree of maintenance. It is intended to present the question whether the father can be decreed to support the children. The judge below sustained a demurrer upon the ground that there was no cause of action.
There can be so controversy that the father is under a legal as well as a moral duty to support his infant children. ( Walker v. Crowder, 37 N.C. 487), and, if he has the 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 the law not only recognizes, but enforces. Burton v. Belvin, 142 N.C. 153; Kimbrough v. Davis, 16 N.C. 74. Besides, the failure to support his children is a crime. Rev., 3355; S. v. Kerby, 110 N.C. 558.
The liability of the father primarily to support the children remains as well after, as before a divorce, and even where the custody of the children has been awarded to the mother. 14 Cyc., 812; 9 A. and E. (2 Ed.), 871.
The relief asked, however, having been granted in the proceeding above, this action was improvidently brought.
Action dismissed.
WALKER, J., concurs in result.
(320)