130 Ky. 354 | Ky. Ct. App. | 1908
Reversing.
This suit was brought as a common-law action by appellee, the mother of her infant children, against their statutory guardian to recover $75 a year for-their board and clothing and her services in caring for them. It is alleged that appellee is a widow of very limited means, with barely enough to sustain her7 self; that the infants are of tender years, incapable of laboring for their support, and too young to be bound as apprentices; that they have estates, though the income therefrom is insufficient to educate and support them. She prayed for a judgment against the guardian for the sum alleged to be reasonable pay for their clothing, nurture, and education for several years previous, to be satisfied out of the estate in the hands of the guardian. A general demurrer to the petition was overruled. The guardian declining to plead, a judgment for the sum sued for was rendered by default. The guardian appeals
The statute under which the action is said to have been brought is section 2034, Ky. Stats., 1903, as follows: “No disbursements shall be allowed the guardian for the maintenance and education of the ward beyond the income of the estate, except in the following cases, unless authorized by the deed or will under which the estate is derived. (1) When the ward is of such tender years or infirm health that he can not be bound out as an apprentice, or no suitable person will take him as such. (2) When it is best for the ward that the principal of his personal estate shall be applied for his board and tuition, and the court, upon settlement of the accounts, shall deem such application
This is not a suit to sell the ward’s real estate for any of the purposes named. Such a proceeding is regulated by Civil Code of Practice, section 489. While the parent is presumably hound to support his infant children without charge upon their estate, yet if the parent is poor, and the estate of the children more able to justly hear the expense of their maintenance and education, the parent may recover for supporting .them. Chapline v. Moore, 7 T. B. Mon. 150; Hughart v. Spratt, 78 Ky. 313; Hedges v. Hedges, 73 S. W. 1112, 24 Ky. Law Rep. 2220; Harper v. Payne, 73 S. W. 1123, 24 Ky. Law Rep. 2301.
The judgment is reversed, and cause remanded for proceedings not inconsistent with this opinion.