Marsh v. Scott

• Decision Date: 07 January 1949
• Docket Number: No. 158/305.,158/305.
• Parties: MARSH et al. v. SCOTT et al.
• Court: New Jersey Superior Court

63 A.2d 275

MARSH et al.

v.SCOTT et al.

No. 158/305.

Superior Court of New Jersey,Chancery Division.

Jan. 7, 1949.

Syllabus by the Court.

1. This court may make an order directing the amount the guardian of a mental incompetent may expend for the support and maintenance of his child out of his personal estate, on an application by the guardian, spouse, or a child or any person on behalf of a child of a resident or nonresident mental incompetent. R.S. 3:21-4, N.J.S.A.

2. In the instant case, the mental incompetent and his minor child are nonresidents and neither has a general guardian in this state; but the incompetent is the beneficiary of a trust under a will probated and being administered in this state by trustees appointed by the courts of this state. The trustees recognizing the obligation of the incompetent to support his son and being willing to use the funds for that purpose, but in doubt of their right to do so, filed the complaint praying for instructions. Held, that even though the application was not made pursuant to or by any of the persons specified in R.S. 3:21-4, N.J.S.A., the legislative enactments are sufficiently comprehensive to construe that the plaintiffs, trustees of the incompetent's property, make the application on behalf of the child within the meaning of the statute.

3. The obligation of a parent for the support of his child does not arise from a creditor-debtor relationship, nor is it a debt within the contemplation of the testator or within the interpretation of a spendthrift clause in the will.

Suit by Theodore McCurdy Marsh and others, testamentary trustees, etc., against John Scott and another for instructions as to whether trust income may be used for maintenance of mentally incompetent life beneficiary's minor son.

Order in accordance with opinion.

Riker, Emery & Danzig, Theodore McC. Marsh and S. Arthur Stern, all of Newark, for plaintiffs.

Richard Riddle Fisher, of Newark, guardian ad litem for defendant John scott.

Harry Steiner, of Newark, for defendant Michael Loveridge Scott.

FREUND, Judge.

John Wilson Scott, also known as Loveridge Patton Haffner, was on September 1, 1943 adjudicated by the District Court of the United States for the District of Columbia to be of unsound mind and is confined in St. Elizabeth's Hospital, Washington, D.C. His mother, Marion L. Haffner, a resident of New Jersey, died testate and her will was probated in Essex County. Under its terms, her son, who evidently was competent when the will was executed, is a beneficiary under a trust, being entitled to income for life, and, upon his death, the residue is payable to his heirs. John Wilson Scott was married, but his wife obtained a divorce in Wyoming in 1940. A son born of the marriage, Michael Loveridge Scott, now about twelve years of age, resides with his mother in California. She had worked to support herself and her child, but is now alleged to be indigent and has incurred obligations for the support and health of her son. She has applied to the trustees of the trust estate for utilization of part of the income for the support and maintenance of the child.

The trustees have filed the complaint in this cause, alleging the foregoing facts. They also allege that they are using the income for the care of the incompetent; that they now have an accumulation of surplus income of about $750; that they reasonably expect that future income will be more than necessary for the support of the incompetent; that they recognize the obligation of the incompetent to support his son and are willing to use the funds for that purpose, but are in doubt of their right to do so; and pray for instructions. The evidence establishes that as of December 31, 1947, the balance of corpus in the trust fund was $30,519.37 and the balance of income, $1,645.

The support of a child is the father's first duty. That duty is continuous. Royce v. Royce, Err. & App.1938, 124 N.J.Eq. 469, 1 A.2d 878. In Osborn v. Allen, Sup.1857, 26 N.J.L. 388, the court said: ‘The duties of parents to their children, by law of nature, rests equally upon both. It is the duty alike of each parent to maintain, protect and educate their children. * * * In regard to the maintenance of children, the only obligation expressly imposed by law, that of maintaining poor children not able to work, rests alike upon both parents. Nix.Dig. 614, Sec. 26, 1 Bla.Comm. 448. There is, however, this distinction recognized by the authorities between the obligation of the father and that of the mother to maintain their infant children, viz., that the father is bound to maintain his children during their minority, though the children have ample property for their support, while no such obligation rests upon the mother.’

In Re Ganey, Ch. 1922, 93 N.J.Eq. 389, 116 A. 19, 21, affirmed Err. & App.1922, 94 N.J.Eq. 502, 119 A. 925, the court said: ‘Both parents being alive, it is the duty of the father to support and maintain the minor child, and upon his death that duty devolves upon the mother (Osborn v. Allen, 26 N.J.L. 388; Alling v. Alling, 52 N.J.Eq. 92, 27 A. 655), but this court has no jurisdiction to compel a parent to support an infant child. Alling v. Alling, supra. Neither parent is legally compellable to perform such duty, except in the manner pointed out by the statute.’ R.S. 2:204-1 et seq., N.J.S.A.

This duty does not depend on the mental competency of the parents; though, of course, it may not be enforceable against the person of an incompetent parent. A court of chancery will protect and safeguard the rights of both incompetents and infants.

Two statutes enacted by the legislature pertaining to mental incompetents have relevancy here, viz.:

‘R.S. 3:21-4. Order fixing expenditure, etc.

‘The guardian, spouse or a child or any person on behalf of a child of a resident or nonresident mental incompetent, may apply to the Court of Chancery * * * by verified petition * * * for an order directing the amount the guardian may expend yearly for the support and maintenance of the mental incompetent, his household, family, spouse, child or children, out of his personal estate, and the income thereof * * * or otherwise directing the guardian in relation to the care and management of the mental incompetent or his estate, and in relation to the support and maintenance of the mental incompetent, his household, family, spouse, child or children.’

R.S. 3:23-1, N.J.S.A., provides that where a power, discretionary or otherwise, is or shall be vested in or given to a mental incompetent, the Court of Chancery may authorize his guardian to exercise the power or consent.

In the instant case, the incompetent is a non-resident of this state and has been adjudicated to be of unsound mind in the District of Columbia. So far as the record discloses, while...