Meier v. Planer

• Decision Date: 07 January 1931
• Citation: 152 A. 246
• Parties: MEIER v. PLANER.
• Court: New Jersey Court of Chancery

152 A. 246

MEIER

v. PLANER.

Court of Chancery of New Jersey.

Jan. 7, 1931.

Syllabus by the Court.

The Court of Chancery has no jurisdiction to compel a parent to support an infant child, except, of course, in matrimonial causes. Syllabus by the Court.

A grandparent who has voluntarily supported his grandchild for a number of years cannot recover from the father, in this court, the expenses thus incurred.

Syllabus by the Court.

Nor is he entitled to be subrogated to the right of action, if any, which a municipality assuming such support would have had against the parent under the "Poor Acts."

Syllabus by the Court.

A mere volunteer cannot claim the benefit of the law of subrogation.

Suit by Charles F. Meier against George J. Planer. On motion to strike out the bill of complaint.

Bill stricken.

George A. Henderson, of Newark, for the motion.

Osborne, Cornish & Scheck, of Newark, opposed.

BERRY, Vice Chancellor.

The bill of complaint alleges that in July, 1917, the defendant abandoned his wife and infant child, who were then living at the home of the complainant, the father of defendant's wife; that the wife was then ill and died a few weeks later; that since that time the defendant's child, who was then six years of age, has continued to live at the home of the complainant, who has supplied said child with board, food, clothing, medicines, medical service, education, and all other necessities of life at his own cost and expense; that during said period the defendant, although living in the neighborhood, has contributed nothing toward the support and education of his said son, has not offered him a home nor made any request of the complainant, nor of any one else, that his son should live with him, and that defendant has wholly failed and refused to support his said son and to furnish him with the necessities of life. The bill further alleges that the defendant was under a legal duty to support and maintain his said child, and that he is indebted to complainant for all the necessaries furnished by him to and for his said child from July 26, 1917, to date. The bill seeks to recover the reasonable value of said necessaries, which is alleged to be $6,750. There is also a claim for $300 for funeral expenses of the defendant's wife, which complainant claims to have paid and alleges the defendant was under a legal duty to pay. This motion is made on the ground that the bill discloses no equitable cause of action, and that complainant's remedy, if any, is at law. It is conceded by counsel for the complainant that that portion of the bill embracing the claim for moneys expended for funeral expenses is improper and should be stricken; but it is insisted that the balance of the bill presents a case peculiarly for equitable relief because of the inadequacy and deficiency of the machinery of the courts of law, and that the moral obligation of the defendant is so strong that a court of equity should have no hesitancy in granting relief. Complainant relies mainly unon Tomkins v. Tomkins, 11 N. J. Eq. 512 (1858), as authority for maintaining this suit, but cites also, in support thereof, Freeman v. Robinson, 38 N. J. Law, 383, 20 Am. Rep. 399: Leuppie v. Osborn's Ex'rs, 52 N. J. Eq. 639, 29 A. 433, and the unreported case of Richardson v. Nagle.¹ decided by Vice Chancellor Fielder on June 17, 1930; and claims further that, if for no other reason, complainant is entitled to maintain the action on the principle of subrogation to the right of the municipality to recover from the defendant father the cost of maintaining his offspring. This latter argument is to this effect: That, under the act for the relief and settlement of the poor (3 Comp. St. 1910, p. 4023, § 30) the municipality in which this child had its settlement at the time of its abandonment would have been obliged to support and maintain it had it not been for the intervention of the grandfather, the complainant; but that the primary liability was that of the defendant father, from whom the municipality might have recovered in an action against him for that purpose; that the complainant, instead of the municipality, having assumed the expenses of the support and maintenance of the child, is entitled to be subrogated to the right of the municipality, under like circumstances, to recover from the father.

I am of the opinion that the bill cannot be maintained, and that the motion to strike should prevail. Tomkins v. Tomkins, supra, does not support the bill. Complainant quotes in his brief the following language from the opinion of the Chancellor: "A parend is bound to provide his infant children with necessaries; and if he neglect to do so, a third person may supply them, and charge the parent with the amount. But such third person must take notice of what is necessary for the infant, according to his situation in life; and where the infant lives with his parent, and is provided for by him, a person furnishing necessaries cannot charge the parent. 'When the infant is sub potestate parentis, there must be a clear and palpable omission of duty, in that respect, on the part of the parent, in order to authorize any other person to act for, and charge the expense to the parent.' If a case can be suggested where the moral obligation of a father to provide for his offspring can be enforced as a legal one, it would be difficult to find one more apposite than this. The complainant left his child, about three or four years of age, with its destitute and heart-broken mother. He abandoned them both to the charities of the world. The mother found shelter in the alms-house. The daughter was forced upon its grandmother, a woman then advanced in life, and of moderate means for her own support. There is no evidence that, for the fifteen years the child was under the care of its grandmother, the father ever made any inquiry as to its whereabouts or welfare. Now. in view of all these facts, if there was any doubt as to the legal obligation of the father to provide for his child, and of his legal liability to such as should supply that child with the necessaries of life, the moral obligation is so strong that a court of equity would feel but little inclined to grant relief, on any such ground as that the moral obligation had been converted into a legal one." And claims that this language exactly fits the facts of the present case. It is true that this language aptly describes the situation presented by the bill of complaint, but that it is not pertinent to the issue will immediately appear from a consideration of the whole opinion and the nature of the case in which it...