64 Wis. 73 | Wis. | 1885
Prosper A. Pierce died, leaving a will, by which one third of all his property was devised to the appellant and her four children, share and share alike, and the respondent was executor. One of said children'was Harvey Pierce, born in 1871, and died in 1876. The husband of- the appellant, and father of said children, was George M.
The learned counsel of the respondent contends that the appellant,” as the mother of Harvey, was bound as his natural guardian to support him gratuitously, and that she is estopped by the partition of the estate of Harvey between herself and said respondent, for which she was the petitioner; and these are the only questions in the case. The learned counsel of the appellant contends that in equity she is entitled to such allowance out of the estate of Harvey, as against her co-heir and husband, who utterly failed to support, or contribute to the support of, the child Harvey.
As to the claim that the appellant is estopped, and that Stephen 0., the respondent, is an innocent purchaser, and should be protected against said claim for an allowance, it is sufficient to say that the partition and the conveyances are subordinate and subject to the settlement of the estate of Harvey and the payment of claims against it; and further, as to the conveyance, it does not appear that the granteés paid value, and the said Stephen O. purchased with notice; and further, as to the partition, it is not inconsistent with
The authorities cited by the learned counsel of the respondent on the main question are none of them in point, and some of them are clearly in conflict with the weight of authority. In Dedham v. Hatick, 16 Mass. 135, the question was of pauper settlement of the children after their pauper father had died and the mother had again married and moved to another town. The court said incidentally that in such a case the mother was the head of her family of such children, and had control of them, and bound to support them, if of sufficient ability, the same as their father would have been if living; and this is made the test of their legal settlement. Reeves, Dom. Rel., cited, has the following note: “As a general rule, as between the father and mother, the obligation to support the child x-ests principally upon the father.” Cummings v. Cummings, 8 Watts, 366, was an action of assumpsit by the administrator of the estate of the mother for the support of her infant daughter. It was simply held that such support raised no such assump-sit. In Hays v. Seward, 24 Ind. 352, the father died after devising his estate to his widow for life, which consisted of a farm on which the family lived, and which she enjoyed and used. It was held that there was no implied assumpsit by her child to compensate her for its support in infancy. Darley v. Darley, 3 Atk. 399, was the case of a father seeking to apply the legacy left to his child to its support. No case cited on behalf of respondent approximates anywhere near this case in its facts and equities.
On the other hand, a widow who had supported her daughter during infancy, she having an estate of her own, maintained an action against the'daughter after she became of age for such maintenance. Whipple v. Dow, 2 Mass. 415. In Dannes v. Howard, 4 Mass. 97, it was held that the
In Schouler, Dom. Eel. 239, it is said: “ It is nevertheless clear that the courts show special favor to the mother, as they should; and if the child has property they will rather in any case charge the expenses of his education and maintenance upon such property than force her to contribute hers;” and many cases are cited. And it is said further: “ A court of chancery will not readily make the support and education of infant children a charge upon the property of their widowed mother,” etc.; citing many cases. Haley v. Bannister, 4 Madd. Ch. 275. In Hughes v. Hughes, 1 Brown, C. C. 388, an allowance for the maintenance of the children was made to the parents out of the children’s estate. In Lanoy v. Duke and Duchess of Athol, 2 Atk. Ch. 444, the widow was allowed for the maintenance of her daughter out of her estate. In Ex parte Petre, 7 Ves. Jr. 403, a very large allowance was made to the mother for the support of her son out of his estate. In Bruin v. Knott, 9 Jur. Ct. Ch. 979, the widowed mother was allowed for the past maintenance of her son out of his estate after his death. In Reeves v. Brymer, 6 Ves. Jr. 425, the father was made an allowance for the past maintenance of his infant daughter
I have cited more cases, and the principle involved in each, because this court would differ from the learned judge who decided this case at the circuit with great hesitation, and only after a full examination of the authorities on the question, when he had not the same facilities and time for a full examination of the question, aided by the elaborate briefs of counsel; for with such facilities and time he would be very likely to arrive at a proper legal conclusion in all cases. The fact that the mother for a considerable part of the time supported the child when it had no estate, and she could not have had any expectation of an allowance thereto!’, can make no difference in equity,'as her right to any allowance in such a case does not depend upon contract, either express or implied, or an implied assumpsit.
The facts of this case appeal most strongly to a court of equity. The father was legally bound to support this child. He failed to do so, and, most unnaturally, imposed this burden upon his wife. Notwithstanding his shameful neglect
I am unable to assent to the conclusion arrived at in the opinion of the court in this case. Had the opinion limited the right of the mother to charge the estate of her deceased child with its support from the time it acquired an estate until its death, I should not have felt called upon to dissent, although I should then have very grave doubts whether such charge should be made, under all the circumstances, against the child’s estate after such a lapse of time and so long after its death. No case can be found, I think, in which a court of equity has ever charged the after-acquired estate of a child, and especially a mere infant, with the cost of its nurture from its birth until the
By the death of the child in this case, the mother inherited one half of its estate, which'was some compensation for the nurture she had given it during the few years of its life, and should be some reason why a court of equity should not allow her claim against its estate for its support. I cannot see how the fact that the other half of the estate goes to the father of the child at its death can give the mother any other or greater claim on the estate for its support than she would have had in case the father had died before the child, and its estate had gone in some other direction. This is not an action at law or in equity between the mother of the child and her husband, its father, in which the mother claims of the husband and father compensation for the support of their child by her out of her separate estate, on the ground that it was his legal duty to support such child by his exertions and out of his estate, and therefore he should make her separate estate good for what she expended in its support. As I understand it, it is a claim made against the estate of the deceased child, and if she has no claim against
It is true, the husband is interested as co-heir of the estate with his wife to defeat her claim against the estate of the child; but that does not authorize her to set up any equities she may have against the husband to establish a claim against their child or its estate. The county court would have no jurisdiction of an action brought by the wife to charge her husband or his estate during his life-time with the money expended by her out of her separate estate for the support of their child, on the ground that the law cast the burden of such support upon him and his estate primarily, even it should be admitted that such an action could be maintained in the circuit or other court of competent jurisdiction; and yet that is what the wife seeks to do indirectly by filing her claim against the estate of her deceased child in the county court, and asking that court to allow such claim because she has an equitable claim for such support against her husband, who is still living, and over whose estate the county court has no control.
Upon the findings of the court the claim of the mother for the support of the child from the time of its birth to the time when it received its estate from its grandfather, exceeds the whole value of the estate so received by the child. Now, suppose the mother had, immediately on the death of the grandfather, applied to the court to have that estate applied to the satisfaction of her claim for support up to that date, would the court have been justified in so applying it? Clearly not. Had it appeared' to the court that the father and mother wore unable to give the child proper support, it might have applied the income of its estate, and, under proper circumstances, the principal thereof, to its future support. Certainly it -would not have applied the estate to discharge the claim of the mother for
The will of the grandfather shows that it was not intended by him that the estate given to the child should be appropriated by the mother for its past support, nor even for its future support, unless it should become necessary to so apply it on account of the inability of the father and mother to give the child a proper support during its minority. It is given to the mother in trust, to be held by her during the minority of the child, and as such trustee she could only use such part of the estate so granted as was necessary for its support after it became vested in her as trustee, and during such minority.
Again, there is nothing in the record that shows that Anna K Pierce, the mother of said infant, had not, at the time she supported her child, and for which support she claims pay out of its estate, an abundance of means of her own out of which she could and did furnish support. The question of the ability of the parent to support his or her infant child is always an important consideration when an application is made to a court of equity to have the estate of the infant applied to such support during its infancy; and this is especially tire case when it is sought to apply anything towards such support beyond the income of its estate.
It is urged in the opinion of the court that the husband should have supported the child, instead of the mother, and because he failed to furnish such support the mother should be allowed to charge the estate of the child with such support. To my mind that does not follow. If the husband had the ability to support the child, and neglected to give it such support, and the burden of its support was cast upon the mother unjustly, and she furnished it, that fact furnishes no reason for charging the child’s estate with
By the Court.— The order and judgment of the circuit court are reversed, and the cause is remanded with instructions to reverse the order of the county court and to order said county court to allow the claim as a charge upon the estate of Harvey Pierce, deceased.