Vail v. Vail

10 Barb. 69 | N.Y. Sup. Ct. | 1850

By the Court, Mitchell, J.

The objection made to the decree is that the children are not charged with the sums applied for their support during their minority; and it is insisted that the intention of the will was that they should be charged with such sums, and that those sums are included in the term “ previous advances,” used in the will. (18 Ves. 490.)

It is the legal duty of a father to support his children during their infancy, according to his ability; and although the legal obligation is not continued upon his estate after his death, yet every parent recognizes the moral obligation, and so natural is the feeling, that in any ambiguous case it may be presumed that the parent was acting under its influence. The courts have acted on this principle. Thus, if a bequest be made to a stranger, payable at 21, it will not carry interest; but if given to a child, under the same terms, and the child has no other provision, “the court will give interest by way of maintenance, for they will not presume the father inofficious, or so unnatural as to leave a child destitute.” (3 Atk. 102. 1 Id. 507.)

Thus the provision for maintenance is regarded not as a mere gift, but as a duty—a duty which it is luxnatural to omit. On the same principle, if a child be advanced by a settlement of real or personal estate, and his -parent dies intestate, he is to receive only so much of the estate “as shall be sufficient to make all the shares of the children, in the real and personal estate and advancement to be equal, as nearly as can be estimated.” But still the law, looking to-the duty of the parent to support his child, expressly excludes from advancements money expended in the' maintaining or educating of the child. (1 R. S. 754 § 26. 2 Id. 98, § 78.) The exclusion was made to comply with the general sense of what was proper, and because money so expended was not deemed an advancement, nor incompatible with the object expressed “ of making all the shares of the children equal, as near as can be.” It shows that the legislature considered that those shares will be equal, as nearly as may be, without bringing into the common fund moneys applied to the support of the infants. The law as to intestates makes the distribution at the death of the intestate, and accordingly it does not continue the support of the children beyond that time. Here the testator postponed the distribution of all his estate for a longer period, and for a portion of the intervening time provided for the maintenance of his infant children. He chose that the guardians of his children should stand in his place, and be as a father to them, until the children should be of age, or marry, when that “ provision” for them was to cease; and they should be advanced by portions to be given to them.

There are striking differences between the moneys to be applied for the support of the children and the several sums of ¡$25,000 to be given to them on their attaining the ages of 21 or 25, or marrying. The first sums were to be paid out of the income only, and would leave the capital of the estate unimpaired, would be consumed in the using, and without the possibility of producing interest, and would be in small and inconsiderable sums; and they were' not for purposes of profit or advancement, but of necessity.

The last might and naturally would be paid out of the capital, and would thus so far diminish it-—would produce interest— were in large sums—and were for the purpose of advancing the children; being payable to them at marriage, or at the ages of 21 and 25.

The advances which the testator meant to bring into botch-pot were to be charged with interest. It is incredible that he meant that the sums to be expended for his children’s support should carry interest.

The term advances does not even in ordinary cases, include money thus expended. Its etymological and its ordinary use indicates moneys paid before, or in advance of, the proper time of payment. Thus it is used as to moneys paid before the completion of work under a contract, and as to property given to a child at bis full age or marriage, and -which is received in anticipation of the share which he will have in his parent’s estate at the parent’s decease. If it be deemed equivalent to advancement and then to imply the advancing the son or daughter in life by promoting his or her pecuniary interest, that meaning may well apply to the large bequests given on marriage, or on the child attaining full age, but not to the moneys expended for his support.

In Onslow v. Mitchell, (8 Ves. 490,) the plaintiff was entitled to two sums of £3000 each, and received two legacies, one of £4000 from his father, and the other of £500 from his mother. The court held the first a satisfaction in part. The defendant also insisted that other sums which the plaintiff alledged were merely trifling presents, should also be deducted from the £6000. The deed of settlement was for raising portions for children to be born, and declared if either parent of the children should settle, give or advance to, for or upon the child entitled to portions any sums of money, lands, goods or chattels for or towards their advancement or preferment in marriage, or otherwise, such sums <fcc. should be deemed part of the portion. Trifling presents were “ chattels.” “ given to or for the childand the support of the child was as much money advanced to or for the child as in this case. Yet the counsel for the defendant did not argue that either was to be deemed a satisfaction in part. The £4000 was payable at 21 by the father’s will, but the £500 was a bare legacy; and the last was not by the decree allowed to go in satisfaction of the portion.

On the same principle, in the case before us, the legacies are also payable at 21, 25, or marriage, and so would properly be considered as advances or advancementswhile the smaller sums expended for the daily support of the children could not be so regarded, whether disbursed by the executors or guardians in driblets day by day, or in annual sums.

The order made at special term should be affirmed.