Englehardt v. Yung's Heirs
76 Ala. 534
Ala.
1884
Check Treatment
CLOPTON, J.

— Jоhn A. Yung died intestate, in October, 1873, leaving a widow and four minor children. Administration of his estate was granted to the widow, and she and her children resided together in thé dwelling-house purchased by the intestate, until her marriаge with appellant, in November, 1875. After the marriage, the step-father, mother, and children, constituting one family, continued to reside in the same house until her death. She died in April, 1878, leaving a will, by which the aрpellant was appointed executor of her estate. On the final settlement of her administration of her first husband’s estate, her executor asked to be allowed a credit for the maintеnance of the children during the period of her administration; which was disallowed by the Probate Court.

1-2. The law, following the instincts and commands of nature, imposes on the father, primarily, the duty and obligatiоn to maintain and educate his minor children, in a manner commensurate with his means, even though they may have property of their own. When the father’s means are insufficient to support and educаte his children, suitably to their estate and condition, the law will supplement the insufficiency by an appropriation of their property. The obligation to maintain, and the right to services, in the case of father and child, do not depend upon the will of either, except that the father may emancipate the minor chiid. The obligation of the mother, on the death of the father, is not co-extensive. The natural obligation exists*; and it may be a legal duty also, as to strangers, and so far as to prevent the child from becoming a charge on the public. Where the mother has the ability, and her infant child is without means, and unable to earn a maintenance, the duty and obligation of support devolve on her; but the law does not impose the duty, if the child has an estate, or is able tо earn a livelihood. — Mowbry v. Mowbry, 64 Ill. 383; Wilkes v. Rogers. 6 John. 566. The distinction between the duty and obligation of the father and mother is, that the father, if of ability, is bound to maintain and educate his minor child, irrespective of any estate of the child ‍‌‌‌‌‌‌​​​‌​‌​​​​​‌​‌​‌‌‌‌​‌​​​‌‌​‌‌​‌‌​​‌​​‌​​​​‍; while the mother’s duty and obligation are measured and limited by the ability or sufficiency of the estate of the child. If she, as guardian, or administratrix, or in any other fiduciary capacity, *540lias the control an 1 minagеmmt of the child’s property, the presumption, on a subsequent settlement between them, will be, in the absence o'f any manifest intention otherwise, that the support and education of the child are a charge on such property. A mother may support her child gratuitously; and when done without any intention or expectation of being recompensed. she can not, on a change of purpose or inclination, demand and receive compensation for a previous gratuitous maintenance. Such intention may be shown by circumstances ; but, whether proved by positive or circumstantial evidence, it must clearly appear, if the child lias an estate.

3. Should the mother subsequently many, she ceases to have control and management of her own property, and her duty and obligation also cease. A step-father is entitled neither to the custody nor to the earnings of the children of the wife by a former husband, and there is no reciprocal obligation to maintain them. He may, however, take them as members of his family, adopt them as his children, and place himself in loco parentis.— Williams v. Hutchinson, 3 N. Y. 312; 2 Kent’s Com. 193. In Brush v. Blanchard, 18 Ill. 46, it is said: “He may, however, by admitting them into his family, and treating them as members thereof, voluntarily аssume the relation of parent. Where this is done, the stepfather stands in the place of natural parent, and the reciprocal rights, obligations, and duties of parent and child attach, and continue so long as tlfk mutually assumed relation continues; and the step-child, in such cases, is not entitled to recover for services rendered, nor is the step-father ‍‌‌‌‌‌‌​​​‌​‌​​​​​‌​‌​‌‌‌‌​‌​​​‌‌​‌‌​‌‌​​‌​​‌​​​​‍entitled to pay for supрort.” This is, also, to a great extent, a question of intention; and such intention should not be slightly nor hastily inferred, and from such circumstances as to operate to deter step-fathers, by the apprehension of being burdened beyond their ability, from continuing and keeping his wife’s children in such relation with their mother, as to receive her constant watchfulness, care, and training, and the beneficial enjоyment of her companionship.

é. Mrs. Englehardt, formerly Mrs. Yung, had a separate estate of about $13,000 in value, which yielded an annual income of $800. This income was insufficient to support herself and her fоur children, and educate the children according to their estate and condition. It is not to be presumed, under these circumstances, that it was her intention to bestow a gratuitous support and еducation, which would require the expenditure of her entire income, and also infringe upon her capital, leaving the children’s estate untouched and to accumulate. There was no guаrdian, to whom she could declare an intention to charge them; and keeping no accounts with them, *541when she kept none with the estate as administratrix, is not sufficient to create the presumption of a gratuity. — Stewart v. Lewis, 16 Ala. 734; Whipple v. Dow, 2 Mass. 415. The property of the mother was her statutory separate estate, during the life of her first husband. Hhe was not entitled to. and did not receive any part of his estate; the children inheritеd the entire property. On the second marriage, the step-father went to reside in the house, where the mother and children had previously resided, continuing and preserving the family relations, as they had previously existed. It may be, and probably is true, that the intention and purpose of the mother were to use the combined ‍‌‌‌‌‌‌​​​‌​‌​​​​​‌​‌​‌‌‌‌​‌​​​‌‌​‌‌​‌‌​​‌​​‌​​​​‍income of herself and children for their mutual and united benefit. On the facts shown by the record, a credit should have been allowed, to a reasonable and proper amount, for the maintenance and education of the children, deducting therefrom the value of any services they may have rendered ; the credit, in no event, to exceed the income of their property. No credit for the support of the children after the death of thе administratrix can be allowed on this settlement, as her administration then terminated.

5. The lot and house where the family resided after the death of the intestate, was purchased by him with the intention, and for thе purpose of improving and repairing, and making it a permanent residence; but he was prevented by death from consummating his purpose. “Preparation to use, coupled with a tona fide intention so to do, frequently takes the place of actual use.’' — Thump, on Ilomest. Ex. § 192. In Blum v. Carter, 63 Ala. 235, it is said : “ Guided by these principles, we hold that, to constitute a valid claim of homestead, there must he an actual oсcupancy in fact, or a clearly defined intention of present residence and actual occupation, delayed only by the time necessary to effect removal, or to сomplete ‍‌‌‌‌‌‌​​​‌​‌​​​​​‌​‌​‌‌‌‌​‌​​​‌‌​‌‌​‌‌​​‌​​‌​​​​‍needed repairs, or a dwelling-house in process of construction.” Under the circumstances, the premises may be regarded, in legal meaning and contemplation, as the homestead of the intestate, and, as such, exempt from the payment of debts for the benefit of the widow and children.

6. After the death of the intestate, the administratrix made the needed and prоper improvements and repairs, and the family thereafter occupied the dwelling. The improvements and repairs were necessary for the preservation of the property, аnd rendered it permanently more beneficial and valuable to the heirs. The widow was authorized to occupy the homestead, until it could be ascertained whether or not it was necessary to sell the real estate for the payment of debts. The improvements and repairs were for their common enjoyment, but resulted to the ultimate and permanent benefit of the heirs. Un-’ *542dor these circumstances, it is equitable to make each pay in proportion to the benefit received. The estate should be charged witli four-fifths of the cost of the necessary and reasоnable improvements and repairs, and no rent charged for occupancy during the time of the widow’s administration. — Benagh v. Turrentine, 60 Ala. 557; Henderson v. Simmons, 33 Ala. 291.

7-8. As to the liability of the personal representative for interest, the rulings of this court have settled the doctrine, that an administrator who delays, without sufficient cause, settlement and distribution for an unreasonable time, is liable for interest, ‍‌‌‌‌‌‌​​​‌​‌​​​​​‌​‌​‌‌‌‌​‌​​​‌‌​‌‌​‌‌​​‌​​‌​​​​‍though he may have kept the money unemployed and in safe deposit. The duty of the administrator is to make settlement and distribution, whenever the estate is in proper condition, which duty is as obligatory as any other duty imposed by law. Clark v. Knox, 70 Ala. 607; Clark v. Hughes, 71 Ala. 163. It appears that all thе debts of the estate were paid within six months after the appointment of the administratrix, and there was money on deposit. No reasons are shown why the administration should have been continued after the expiration of the time allowed creditors to present their claims. Six months thereafter was sufficient time to allow the administratrix, during which to make preparations for a final settlement. We find no error in the ruling of the court charging the administratrix with interest from November, 1875. The administratrix, however, is entitled to a credit for any disbursements made by her, as of the time they were made; and the aggregate amount of the disbursements made previous to' November, 1875, should be deducted from the funds in the hands of the administratrix, and interest charged on the balance.

9. The charge for the maintenance and support of Rudolph Yung was properly disallowed. He was not apprenticed as required by the statutes; and the written instrument between his mother and the'intestate is not a binding contract, but may be regarded as a declaration of intention to bestow gratuitous bounty.

Reversed and remanded.