Gerdes v. Weiser

• Decision Date: 20 October 1880
• Citation: 7 N.W. 42,54 Iowa 591
• Parties: GERDES v. WEISER
• Court: Iowa Supreme Court

7 N.W. 42

54 Iowa 591

GERDES v. WEISER

Supreme Court of Iowa, Des Moines

October 20, 1880

Appeal from Winneshiek Circuit Court.

THE defendant, as the legal guardian of the plaintiff, was, upon the plaintiff's petition, cited to make a settlement of his account as guardian, and it was asked that defendant might be removed, and compelled to pay over the amount in his hands due to the plaintiff.

The defendant filed a report, and afterwards an amendment thereto, from which the following facts appear. The plaintiff is the son of the wife of the defendant by a former marriage. When the plaintiff's mother and the defendant were married the record does not disclose, but it is stated in the report that the defendant took plaintiff into his family in the year 1861, when he was three months old, and boarded clothed and educated him up to the year 1879; that by an agreement made with plaintiff's mother before plaintiff was received into defendant's family, defendant was to receive payment for keeping and educating the plaintiff, and that defendant was not liable to maintain appellee, and did so intending to be reimbursed therefor.

The plaintiff inherited from his father an undivided interest in a lot in the city of Decorah, upon which there was a business house. From the rents of this building the defendant from time to time received as guardian of the plaintiff, after paying off a mortgage upon the property, paying for repairs taxes, etc., about $ 900. In the report made by defendant he charges the plaintiff for clothing, schooling, boarding, and care, from the time he was three months old, the sum of $ 150 per year. There was a demurrer to the report, which was sustained, and defendant appeals.

REVERSED.

L Bullis, for appellant.

Powers & Kenyon, for appellee.

OPINION

ROTHROCK, J.

Reports of administrators and guardians are not usually prepared with an expectation that issue is to be taken thereon, and they do not, therefore, set out facts with such clearness and precision as are required in ordinary actions. Counsel in this case have argued the abstract question whether a husband is bound to maintain the infant children of his wife by a former marriage. This, we think, depends largely upon circumstances. A man is not absolutely liable to maintain his own children, in the sense that he may not under certain circumstances have an allowance from his children's estate as an aid to their maintenance. The authorities are abundant to this effect. In Tyler on Infancy and Coverture, p. 289, it is said: "Generally speaking, the father is bound to maintain his infant child, and no allowance will be made to him for this purpose out of his property. But if the father is not able to maintain his children, the court will order maintenance for them out of their own property, and this does not turn upon the question of the father's solvency merely, but whenever he is not in such circumstances as to be able to give the child an education suited to the fortune which he enjoys or expects."

An allowance will be made when the parent's estate is limited, while that of the children is abundant. Wait's Actions and Defenses, Vol. 5, p. 52, and authorities cited; and see Kent's Com., Vol. 2, p. 182.

This rule commends itself as eminently just, both to parent and child. Suppose the parent is in straitened circumstances, struggling to procure the necessaries of life for his family, and his children have estates of their own, the comfort and welfare of the children, and the dictates of humanity, require that aid should be given to the parent from the estate of the children to enable him to maintain them properly.

It is said, however, that the defendant was under no obligation to maintain the child of his wife by a former marriage. We have no occasion to determine the question whether the defendant could have been compelled to take his wife's child into his family and...