11 Paige Ch. 257 | New York Court of Chancery | 1844
There is no legal or satisfactory evidence to establish the supposed ante-nuptial agreement, even if such an agreement by parol would be binding upon the lunatic or his estate. Again, the statute is imperative that every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry, shall be void, if not in writing and subscribed by the party to be charged therewith. (2 R. S. 135, § 2.) No claim for the support of the step-daughter can therefore, be founded upon the supposed agreement stated in the petition; and the lunatic is not bound to support her in any way. The question, then, arises whether the court ought to make the order asked for, under the circumstances of this case. In deciding that question, it is not proper to take into consideration the contested fact, that the services of this young lady are useful or necessary, as an assistant in the family. That is a proper subject for consideration by the master, under the original order of reference. For, if it is necessary that she should be employed as an assistant to take care of the lunatic, so as to render his situation more comfortable than it would otherwise -be,
How far the court ought to go, in making provision, out of the estate of a lunatic, for the maintenance of the relatives of such lunatic who have no legal claims upon him or his estate; has never yet been determined. It has frequently been decided, however, that where the income of the estate is large; so as to be much more than sufficient for the support of the lunatic and of those members of his family for whom he is bound by law to provide, the court may make an allowance; out of such income, to his near relatives who are in need of assistance. This is done almost as a matter of course in reference to the children of the lunatic, or other descendants who are presumptively entitled to his estate in case of his death; and where there is but little or no hope of his recovery. I know such orders have been made by this court, within the'last fifteen years, in three oí four different cases; where the estates were large and the incomes much more than sufficient for the support of the lunatics, and of all those who had a legal claim upon such lunatics for support and maintenance. But my present recollection is, that in all those cases, I required the adult children, who were competent to support themselves, to give a stipulation that the amounts advanced to them respectively should be brought into hotchpot; upon the death of the lunatic; if any part of his personal estate should come to them under the statute of distributions. This principle, of considering the allowance as an advance, to be brought into hotch-pot in distribution, has not, however, been extended to children of the lunatic who were sickly or decrepit, so as to give them a special claim upon the estate of the lunatic, for a support. The court, in such cases, acts for the lunatic, and in reference to his estate, as it supposes the lundtic himself would have acted if he had been of sound mind; (See Ex parte Whitbread, 2 Mer. Rep. 97. In Re Feak, Shelf. on Lun. 160.) Upon the same principle, Lord Lyndhurst made an allowance, out of the estate, for the education of a natural child of the lunatic. (In Re Jodrell, Shelf. on Lun. 161.) And in a more recent case, where
In the case under consideration, if the income of the estate was much more than could be expended for the comfort and support of the lunatic and his wife, in the style in which they ought to be supported; I should not doubt the power of the court to make the allowance asked for; were it perfectly certain that the lunatic would make a provision for the support of this young lady, if he was legally competent to do so, considering the heavy charges to which his estate has been and may hereafter be subjected in consequence of these proceedings. Under the circumstances, however, Í am hot satisfied that he would consider her as having such a claim Upon his bounty, if he was restored to his reason so as to be capable of acting with sense and discretion. From the affidavits, read in opposition to this application, it appears that he did not consider her as entitled to a support from him, or as standing in the situation of an adopted child. There