Alling v. Alling

• Decision Date: 17 October 1893
• Parties: ALLING v. ALLING.
• Court: New Jersey Court of Chancery

27 A. 655

52 N.J.E. 92

ALLING

v. ALLING.

Court of Chancery of New Jersey.

Oct. 17, 1893.

(Syllabus by the Court.)

Bill by Emma H. Ailing against Florence W. Ailing, by which a mother seeks to recover from the daughter for the latter's support and education, and for future support. Heard on pleadings and proofs in open court Decree for a portion of the relief sought.

Wm. Brinkerhoff, for complainant.

J. P. Northrop, for defendant.

PITNEY, V. C. This is an undefended suit brought by a mother against her only child and daughter, an infant about 19 years old. The mother is and has been a widow since 1876. The daughter was born in 1874. The claim is for compensation for support, maintenance, and education furnished by complainant from the death of the husband and father until date, and for an order for an allowance for future support, during minority, out of the fortune of the infant. The daughter has recently come into a small fortune from two sources, namely, a part from her father's estate, which is in her mother's hands as his administratrix, and a part from an uncle, which is in the hands of a Mr. Clump, as her guardian. The fund coming from her father was vested in him, before his death, under the will of his father, (grandfather of defendant,) but was subject to a life estate in the widow of the testator, who died in December, 1889. Under that will, the executor has paid to the complainant, as administratrix of her husband, about $5,000, and she will receive a further sum of about $6,500, making in all about $11,500. Of this sum, the complainant is entitled, as one of the next of kin of her husband, to one-third, leaving less than $8,000 for her daughter, the defendant. The other fund, coming from the uncle, amounts to about $6,850, and was vested in the defendant by the probate of the will of the uncle in April, 1890. That sum, however, included interest for two years, so that the net amount was about $6,000. It follows that the pecuniary position of the defendant has been as follows: At the death of her father, intestate, in 1876, when she was a helpless babe, she became entitled to a share in her grandfather's estate, which amounted to a little less than $8,000, but it was subject to a life estate in her grandmother. She derived no present income from it until 1890, and in that year she became entitled, under the will of her uncle, to a share in his estate, amounting to about $6,000, making a total estate of about $14,000. At the death of the husband, the widow and her infant child were, substantially, without means, and the mother was obliged to work to earn a living for both. This she did. By her industry, energy, and general ability she was able to support herself and child in comfort, and to educate her daughter in a manner becoming to her station. She accomplished this without outside pecuniary aid, or at all running in debt,—at least, up to the date of the grandmother's death. Her demand against the daughter for her support, education, and maintenance amounts to over $12,000, or four-fifths of the child's fortune; and yet the daughter, an intelligent young lady, frankly declared on the stand that she wished her mother to be paid in full. It is hardly necessary to say that this court cannot act upon such consent, but must defend the daughter, even against her own mother's claim, examine the demand, and see if it is lawful and proper to be countenanced and enforced by this court.

And, first, assuming the demand to be legal, just, and equitable in all its parts, and in aR respects such as this court would sanction, the question arises, shall this court waive, on the part of the infant, the benefit of the statute of limitations for so much of the demand as arose more than six years before bill filed? It must be observed that it was quite competent for the complainant to apply to this court years ago for the very same relief that she now asks for. She knew of her daughter's vested interest in her father's share in his father's estate, and the amount of it could have been approximately ascertained by this court; and it was competent for this court to have inquired into the propriety of breaking into the principal of this fortune for the child's present support, and to have directed how far, if at all, it should be anticipated. The complainant did not see fit to do this, but was content to earn a support for her child without taking any steps whatever to protect herself for the expense of it. In fact, it is probable she had no thought at that time of ever being reimbursed. Her right before the death of the grandmother and uncle was quite as clear as it is now. If she can sue and recover now, it is because she might have sued and recovered years ago; and it is well settled that this court will make no order for allowance for past maintenance which it would not have made, if called upon to do so, in advance. The complainant did not, prior to the grant to her of administration of her husband's estate, occupy the position of a trustee, guardian, or the like, who has made payments and advances out of a fund in his hands belonging to the Infant, and is now seeking allowance for such payments, as was done in the case of McKnight v. Walsh, 23 N. J. Eq. 136; also, in effect, in Pyatt v. Pyatt, 46 N. J. Eq. 285, 18 Atl. Rep. 1048. The circumstance that, since the great bulk of this demand arose, the complainant, by obtaining letters of administration upon the estate of her husband, has become possessed of a portion of the child's fortune, does not alter her position, or strengthen It, in the least. There is no connection between the services rendered before administration for the child, and the duty, if there be any such, on the part of the child to reimburse the parent, on the one hand, and the fact, on the other hand, that she happens to have been appointed the administratrix of the child's father. Such appointment is, for present purposes, purely fortuitous. She stands, therefore, before the court, precisely as would a person who sues on a quantum meruit for necessaries supplied to an infant; and as to so much of her demand as arose before the date—April, 1890—of letters of administration, and the receipt by her of her husband's share of his father's estate, she is, in substance, asking to be permitted by this court to set off a previous independent demand which she had against her daughter against her daughter's share in that estate. The statute of limitations is binding on this court, as well as on the courts of law; and wherever a pecuniary demand will be barred at law it will be barred here, unless there is some circumstance in the case which renders it inequitable for the party entitled to its benefit to set it up. We have seen that this is a simple pecuniary demand, founded on a quantum meruit, and I am unable to find in the case any circumstance which renders it inequitable for this defendant to set up the bar of the statute against her mother. She is clearly entitled to the benefit of the plea, and it is the duty of this court, as her guardian, to plead it for her. When she attains 21 years of age, she can do what she pleases with her money, but this court cannot permit her to give it away, even to her own mother. I feel constrained to disallow so much of complainant's demand as arose six years before bill filed.

Second, as to so much of the claim as arose within six years before bill filed, namely, since February 11, 1887. At that date the defendant was about 13 years old, and, so far as appears, in a normal condition of health. She could, possibly, if pressed, have earned a scanty living for herself, and thus the mother might have been relieved from the statutory duty to support her in order to prevent her from becoming a public charge. Revision, p. 843, § 30. But the physical ability of the child to earn its bare food and clothing is not the test or gauge in this court, of a parent's duty to support and educate it. The question of the extent of the duty of a parent to support and maintain an infant child can be raised in this court only when the child has a fortune of its own. This court has no jurisdiction to compel a parent to support an infant child. In re Ryder, 11 Paige, 185; Hodgens v. Hodgens, 4 Clark & F. 323. But when the infant child has an estate of its own, and the question arises, directly or indirectly, how much, if anything, the parent shall be allowed out of such estate for the infant's support, the court will consider and determine the parent's duty toward the child, and his or her ability to perform that duty. Such is the present case. Upon general principles, I am unable to perceive any difference between the parents, as to their duty of support of their child. Each is equally responsible for the existence of the child, and each, by natural instinct, feels the duty, as well as the desire, to protect and nourish their common offspring.

The master of the rolls, in Fawkner v. Watts, (1741,) 1 Atk. 406, at page 408, says: "I shall not dispute but every father and mother, by the law of nature, is under an obligation to maintain their own children; but yet this may be varied by circumstances, for suppose the father or mother should be in a low or mean condition in the world. The court will order, especially in the case of a mother, that the child should be maintained out of a provision left to it by a collateral relation."

In Swinnock v. Crisp, (1681,) Freem. Ch. 78; Anon., 2 Vent, 353—the plaintiff sued a stepfather to recover a legacy which had been left to him by his own father, and which should have been paid to the plaintiff by his mother, who was the executrix of the will. The defendant and second husband set up as a defense that he had maintained and educated the child for several years, and given him a good education, which cost him more than the interest on the fund, and that he had bound the child as an apprentice, and paid £70 for apprentice fee; but the court...