Watts v. SteeleWatts v. Steele
- Reporters:
- Before:
- Chilton
The question in this case is, whether a fattier who by reason of his povérty and bodily infirmity has become unable to supp‘ort his infant daughter, has a right to resort to the court of equity which has appointed a trustee for the estate of the datightеf, tó have an allowance for her support and education decféed to be paid by suéh trustee out of the yearly1 income o‘f her estate. The bill is‘filed by the father, with whoni’ the daughter lives, (the mother being dead,) .against the trustees The сhancellor dismissed the bill.
We are unable to see any reason why the cоurt should repudi - ate this jurisdiction over the infant and her estate. There is nothing in the nаture of the settlement by which the property was secured to the mother оf the daughter, forbidding an allowance for maintenance. - The ward has an аbsolute interest, and • the rule is, that where funds are thus‘situated, the court will al ■ low maintеnance’ in the absence’ of any direction to that effect,- and even in disregard of a direction’ for accumulation; and if an insufficient sum is given fo’r maintenance, the court will increase it‘. — McPher. on Inf. 2411
Ns it is the dtity of the father to maintаin his child when bp ■ *658can do so, he is held liable to account as guardian for the profits of the child’s estate which come to his possession duringthe child’s minority. Suсh being his duty, the eourts.of chancery originally .refused to allow any re-imbursement to the father for past main-,tenanco. — Hughes v. Hughes, 1 Bro. C. C. 387; 2 ib. 231; 3 ib. 60; Reeves v. Prymer, 6 Ves. 424; McP. оn Inf. 247, where the cases are collated. ¡„But it is said that in special cases, the court.-may direct an inquiry in favor of the father for past maintenance. He cannot insist on it.as a .matter of course. — Ex parte Bond, 2 M. & K. 439.
The case before, us is far,, future maintеnance and education of t the daughter. There can.be no question as to the jurisdiction of i“the chancellor in setting apart a fundfor this purpose out of the . income of the daughter’s estate, if the father be unable to provide for her. When the father is utterly unable to support his . children, the law would be inhuman in the extreme to cast them . upon the charity of strangers for support, while their own prop- .. erty is adequate for their maintenance. But such prоvision does . not depend upon the father’s insolvency only, but is made when- . evеr he is unable .to give the child an education suited to the for- •, ,tune which she enjoys or expects.—Buckworth v. Buckworth, 1 Cox 80, cited in McPh. on Inf. 220. It is said the.father’s „■ ability is to be estimated comparatively. The amount.of his in- ,. come, the size of the fаmily dependent on him for support, and we might add, his physical inability from disease, &c., to exert himself in providing for them, should be taken into the estimate; . and if, in view of thе circumstances, it should appear to be rear sonable to make an allowance, and for the benefit of the infant, , ‘the court should order it. And tо .this end,, it is proper that the , .question of the ability of the father, the amount of thе ward’s . income, and the sum required for hey support and education, should be referred to the master, if the.chancellorisjn,doubt upon these questions, so that the proper allowance ,can fee made.
We do not think therе is any valid objection on fhe score of .parties. The father is a pаrty interested in being provided as ..■the guardian by nature and nurture, with the means of supрorting and educating his child, and is certainly the proper person ,ito superintend her education, unless there be objections to him., -„-and none are рretended to exist in the present case. The trustee who holds the property represents the ward in-respect, fa *659■{ ■tbat. It is .not indispensable that the сhild should, be made>. party. The court.’will see to it that her interest .is not prejudicеd. We-find a similar application was heard at the suit, of the mother, and a libеral; allowance made, in South Carolina, (Mrs. Heyward v. Cuthbert, Ex’r. of Heyward, 4 Des. Eq. R. 445,) and the. principle seems to be sanctioned by several authorities ,;sn the brief of counsel,.
, Let the decree be reversed and the cause remanded.