author: Bird, V. C.

text:
    William Hamlen’s Administrator v. John C. Bennett et al.
    1. A wife who allows stock bought with her money to stand for several years in her husband’s name, in order to give him credit, is estopped to assert her ownership as against his creditors.

      2. One whose debtor has made an assignment for the benefit of creditors may, after neglect on the part of the assignee for eleven years to take proceedings to discover property belonging to the debtor, and having established his claim by judgment, institute such proceedings himself.
    3. The fact that the creditor filed his claim with the assignee does not prevent him from instituting such proceeding.
    4. "Where a creditor of one who has made an assignment for the benefit of creditors, institutes proceedings for the discovery of assets and succeeds therein, it is proper to bring in the assignee as a party before making a final decree as to distribution of such newly-discovered assets.
    On final hearing on pleadings and proofs.

      Mr. William M. Mavis, Mr. George M. Shipman and Mr. William H. Morrow, for the complainant.

      Mr. Charles F. Fitch and Mr. John JR. Emery, for the defendants.
   Bird, V. C.

In this case a creditor asks that his judgment may be declared to be a lien upon certain real estate, the title to which he alleges was placed in the name of the wife of the debtor, at the instance of the debtor, for the purpose of protecting it from his creditors, and for the beneficial use and enjoyment of it against them. The answer to this is that the title was so placed at the instance of the wife, and that the property was paid for with her money. Does the testimony establish this ? The effort is made to show that the wife was entitled to certain moneys as the next of kin of her father. This has been established. It is shown that so much of her father’s estate as she was entitled to she received in the shape of bank stock, or afterwards had it converted into bank stock. There is no dispute but that this bank stock she still holds in her own name. It is manifest, therefore, that .no part of this stock was used in the purchase of the real estate in question.

There is no satisfactory proof that Mrs. Bennett acquired any other estate whatsoever, except that which she may have received i’rom time to time from her husband. She insists that her husband, being the owner of considerable other real estate, made sales thereof from time to time, prior to the conveyance of the lot in question, and that upon the execution of the deeds for such conveyances he paid to her a part of the consideration. She swears, and he corroborates her, that upon one sale he gave to her $500, upon another $300, and upon many others from $5 upwards. No other amounts are specified. This is the very general way in which she received moneys on this account from her husband. He also engaged in a lottery venture from which he received $360, and he gave this to his wife, with which she purchased bank stock, on which she afterwards realized $700.

It is alleged that Mr. Bennett bought out a series of loans in a building and loan association, and that although he took the title thereto in his own name, it was for the benefit of Mrs. Bennett, and that she advanced money from time to time for the purpose of paying the dues which accrued thereon. A part of this building loan stock was not only in Mr. Bennett’s name, but also in the name of Bennett & Beers, and a part in the name of some other person with him. It does not appear that Mrs. Bennett had any control whatever over this stock, or was in any manner recognized in the transaction by any of the parties interested, or that there was any written evidence of her interest therein given to her by her husband, or that she in any way or at any time asserted any claim or right thereto, prior to this controversy.

The general statement made by both Mr. and Mrs. Bennett respecting the payment of these moneys to her I think may be accepted as true. And that she paid moneys to him from time to time I believe. But the important question which I have the responsibility of deciding is not only how much money in all did he thus advance, or give to her, but also how much money she advanced, gave or loaned to him. And what is equally important for me to determine is how much she advanced or loaned to him for any particular purpose, especially for the purpose of procuring this building loan stock for herself, or for paying the dues thereon, or for the purpose of taking the title to this real estate, or paying for the improvements thereon, after the purchase.

As there is nothing in writing to show what their transactions were, I find it impossible to determine how much money Mr. Bennett ever gave to Mrs. Bennett beyond the $500, $300 and $360. It is true they both agree that he gave her from $5 upwards for every lot that was sold. The whole number of lots sold was sixty-three. The very highest that I would be justified upon any principle in allowing on this account would be $5 per lot for sixty-one lots, or $305, the other two having been allowed for above. Were I to go beyond this, I would be determining civil rights in the region of merest speculation. I am aware that Mr. Bennett says that he was confident that he had given her from these various sources over $3,000, but courts cannot found their judgments upon testimony of this nature uncorroborated, when no accounts have been taken and when so many years, as in this case, have elapsed. I am unable, therefore, to find that Mr. Bennett gave to his wife over $1,465.

It should be remarked, in this connection, that during all the period which embraces these transactions, extending up to a time when Mr. Bennett made an assignment for the benefit of his creditors, which was three years after the conveyance to his wife in question, he was largely indebted.

But the second phase of the question above suggested presents still greater embarrassments, which the testimony in nowise removes. How- much money did Mrs. Bennett advance to Mr. Bennett for the purchase of the building loan stock or the payment of the dues thereon, or for the purchase of the lot in question ? They both swear that, from time to time, when he needed money he called upon her, and that she advanced it to him to pay for the stock. But, as in the former case, there is no written evidence whatsoever of the transactions between them. There is not a particle of evidence upon which I can, with any show of certainty, conclude how much money she advanced.

The court is bound to take notice of the observation of Mr. Bennett when under oath, that he took the title to this stock in his own name in order that he might have the benefit of the credit which it would give to him. This is regarded as so-strong a badge of fraud that courts never allow it to pass without expressing their disapprobation. It might be, if Mrs. Bennett had not known the fact that the title to this stock was taken in her husband’s name, that she should not be held responsible, since in that case he would hold the property in trust for her, and his conduct would have been a fraud upon her. But there is every reason to bélieve that, if her story is true, she advanced money for the purchase of this stock and the payment of the dues thereon; that she had complete knowledge of the manner in which the stock was held. Allowing this condition of things to be created and to be continued for so many years, she must with him be held responsible therefor. Consenting as she did that her husband should have the benefit of the title to this property in his own name, she is now estopped from asserting her own ownership as against his creditors.

It will be seen that I have not found it necessary to resort to the views expressed by many learned judges, that in such cases the uncorroborated testimony of husband and wife should not be regarded as sufficient to defeat the claims of creditors. Taking the other testimony as true in all its length and breadth, the statements, except as I have above mentioned, are so general, but so indefinite and wanting in detail, that were they made by the most disinterested and unimpeached Avitnessess, they could not be made the basis of a decree as against creditors.

The impression sought to he created by the testimony was-that whenever money passed from Mr. Bennett to Mrs. Bennett, it was a gift, but whenever it passed from Mrs. Bennett to Mr. Bennett, it was a loan. But if this were the true character of their dealings, they do not overcome the two conditions above-expressed, viz., the fact that Mr. Bennett was all the while largely indebted, and the absolute uncertainty as to the amount, of money which was so advanced.

Speaking of the important events in the order of their occurrence, one that demands attention was the purchase of the house and lot in question by John R. Bennett, the son of the defendants, Mr. and Mrs. John C. Bennett. This purchase was made in llie year 1878, about five years after the conveyance to Mrs. Bennett, and about three years after the assignment of Mr. Bennett for the benefit of creditors. It was made under the following circumstances: John R., then living in the city of New York, was sent for by his parents, then living in the house upon the premises in Phillipsburg. It appeared that a man by the name of Norton had a valid claim on this house and lot for between $500 and $600, and that the parents had no means of discharging this claim. The aid of the son was requested. The result was, he consented upon his part to pay the parents $7,500 for the property, to discharge this lien, giving them $500 in cash and a note for $7,000, and to take the title for the property in the name of his wife, Caroline, and to advance money, from time to time, to his parents as they should need it, for the support of the household, in discharge of the note, to the extent of such advances. Afterwards, and before the note was discharged, his mother was anxious that another son, Theodore, should be assisted in business, and prevailed upon John R. to loan his credit for that purpose. This John R. agreed to do, upon the understanding that, in case he should be obliged to make any payments on Theodore’s account, they should be credited upon this note. It is in evidence that he was obliged to make several payments on his brother’s account. It is also iu evidence and undisputed that, from time to time after the execution of this deed, of conveyance to Caroline, and of this note to the mother, John R. made payments thereupon to his mother in accordance with their agreement at the time. It is also a part of the case that, in 1882, after Theodore had failed in the enterprise referred to, John R. was urged to purchase a farm, that Theodore might try his hand at farming for the benefit of his parents. John R. did purchase a farm, for which he paid $13,000. He stocked it also, and allowed his brother Theodore to take possession. That this farm was purchased by John R. for the benefit of his parents, admits of no doubt, but it is not clear, to my mind, to what extent this purchase or the value of the farm products were to be applied, if at all, to the $7,000 note. The extent of the payments made by John R., in liquidation of the said note, will be a proper subject for future consideration, in case John has any rights of priority over judgment creditors.

I think John R. was, to the extent of moneys actually paid, a bona fide purchaser. It will be seen that the conveyance was made to Mrs. Bennett in 1873. Her husband, the judgment debtor, made an assignment in 1876. The debt upon which this judgment was founded was of long standing — prior to the execution of the conveyance to Mrs. Bennett. John R., the son, took the title from his parents in 1878, two years after the assignment was made by his father for the benefit of creditors. John swears that he never, at any time, had any knowledge whatsoever of the existence of this judgment, or of any other claim upon this property than the one which he discharged, or of any supposed fraudulent transaction upon the part of his parents, until after the filing of the bill in this case. This bill was not filed until the 30th day of July, 1887. There can be no doubt but that, under the circumstances,. John R. is entitled to the full benefit of all the payments actually made upon the account of such purchase. The amount of these payments will be ascertained; when so ascertained they will be adjudged to be a first lien upon the premises, subject to which a sale will be advised.

Upon the argument of the case, the right of the complainant to file his bill was earnestly resisted. Under the authority of Pillsbury v. Kingon, 6 Stew. Eq. 287, it is very apparent that the rights and interests of an assignor passed to the assignee,, and that in case the assignor has fraudulently conveyed or concealed any of his property or assets, it may be pursued and recovered by the assignee. But it does not follow, I think, that because the title passes to the assignee and because he may bring suit for the recovery thereof, that a creditor may not, under some circumstances, take upon himself the burden of proceeding for such recovery. For example, many years, as in this case, of neglect upon thie part of the assignee to proceed, or in case there may be serious doubt as to whether creditors are entitled to any benefit from the property alleged to be fraudulently conveyed or concealed, if the creditor is willing to take the risk of the burden upon himself, having established his claim by judgment, I can see no good reason why he should not be permitted to do so. Nor do I think that this view is at all in conflict with the authorities. Indeed, it seems to me to be wholly within the true spirit and meaning of the act when it declares that a creditor who has not filed his claim shall not be permitted to participate in the division made by the assignee unless he shall discover other property of the debtor. See Assignment act, §§ 20, 21 {Rev. p. 40). Erom the language of the act, the only reasonable construction, it seems to me, is that the work of discovery devolves upon the creditor.

But it is claimed that the complainant’s intestate in this case filed his claim with the assignee and afterwards withdrew it. I find that these allegations are true. I find, also, that when he filed that claim he subjected himself to all the consequences of a creditor filing a claim. He elected, as the statute permits him' to do, what course "he would pursue — whether he would file his claim and take a ratable proportion with the other creditors who filed their claims, and, under the statute, forego all the balance, or whether he would decline to participate in the provisions of the statute. In my judgment he was bound by that act, but the utmost consequences of that are the diminution of his claim according to the proportion declared to be paid. He is not bound beyond that. Certainly, no creditor who filed his claim would be deprived of privileges which were extended to creditors who had not filed their claims, with respect to property which, either in law or equity, the assignee was entitled to and by proper proceedings could' have recovered. The statute never intended to let in a creditor who had not filed his claim, but who afterwards discovered property of the debtor, to enjoy the benefit of that discovery and to deprive creditors who filed their claims of the right of making such discovery, subjecting the rights of'the latter wholly upon the willingness of the former to make the discovery. It seems to me that this is within the true reason and spirit of the law.

But, the discovery being made and property of the debtor being found for distribution, it is not for the complainant, in a case like the present, to absorb it all in satisfaction of his judgment. It belongs to the assignee, who is authorized by the statute to make distribution thereof. This being so, the assignee is a necessary party; he should be before the court in that capacity. The court cannot make a final decree until he is brought in. Because of his absence, it has been urged that the bill should be dismissed. This would be a harsh and wholly useless proceeding. The testimony seems to have been so fully presented that, in case of a new trial upon another bill, it would be quite impossible for the assignee to change the aspect of the case. Let the assignee be brought in.


source: Caselaw Access Project

author: Bird, Y. C.

license: Public Domain

text:
    Joseph Whitehead et al. v. Hamilton Rubber Company.
    1. Where a corporation assigns accounts to one of its directors as security for Ms endorsement of its notes theretofore issued, lie will not be permitted, in case of the insolvency of the corporation, to claim such accounts as a personal indemnity simply, but the holder of the notes so endorsed will be subrogated to the rights of such endorser to such accounts.
    2. The presumption that an instrument to which the seal of a corporation is duly attached was first authorized by the corporation, is overcome by proof that the authority for the execution of such instrument was given at a special meeting of the directors, at which all were not present, there being no proof that the absent ones had any notice of such meeting; nor will the necessity of such notice be dispensed with by showing that the meeting was an adjourned meeting, the previous one having been a special meeting, without also showing that there was notice of such first special meeting, and that the object of it was made known in the notice, or that the directors, absent at the adjourned meeting, were present at the time of the adjournment, and that the question to be determined at such adjourned meeting was made known as the object of such adjournment.
    On appeal from the determination of the receiver.

      Mr. William M. Lanning, for the petitioner, the Danbury bank.

      Mr. Woodbury D. Holt, for the First National Bank of Trenton and Mrs. Whitehead, executrix of Joseph Whitehead, deceased.

      Mr. Garret I). W. Vroom, for the receiver and complainants.

      Mr. Edwin Robert Walker, for Anna W. Bayard.

      Mr. James JBuehanan, for the Western National Bank et al.
   Bird, Y. C.

The defendant is an insolvent corporation, and its assets are in the hands of a receiver. While it was in active business it gave several promissory notes, one of which was to the Danbury National Bank. All of these notes were endorsed by Joseph Whitehead, president of the corporation, and the holder of nearly all of its stock. After the giving of these notes, and before maturity, and within about ten days of the application for the appointment of a receiver, and undoubtedly with full knowledge of the insolvency of the institution, it executed to Mr. Whitehead an assignment of a very large number of its accounts, due from solvent debtors, in all amounting to over $20,000, which was nearly the entire value of its book accounts. After stating the various notes so endorsed by him, and the amount of each, the assignment recites that the object was to secure said Whitehead for not only the money due him on account of salary, and the money due him for cash loaned as aforesaid, but also to secure him against loss for and on account of said accommodation endorsements, by assigning unto him a portion of the book accounts and the said debts due- thereon to said company. This was followed by an orderly assignment of said accounts, with full power to collect the same and to apply the moneys so collected in discharge of said obligations.

The Danbury bank, to which one of the said notes was made payable, presented its claim to tbe receiver for the amount due thereon. Besides its claim at the hands of the receiver for the amount due, it also presented a statement in connection therewith of the fact of said assignment to Mr. "Whitehead, and claimed the benefit of any rights which he enjoyed under said assignment. The receiver, as he had a right to do by virtue of the statute, inquired into the merits of said claim and rejected the claim upon the part of the Danbury bank to any preference by virtue of said assignment. From the determination of the receiver so made the Danbury bank took its appeal.

The question, therefore, for consideration is whether or not the Danbury bank is in a position to claim any preference over the general creditors, by virtue of the assignment of the said accounts so made to Mr. Whitehead. In answer to the claim of the bank it was insisted that the facts presented by the testimony made it very clear that this transaction, together with others, was undertaken solely with a view of preferring creditors, and was consequently fraudulent. This view, however, I think was nob earnestly pressed. Whatever a full development of the case may present, I am very clear that so far as the case stands revealed there is nothing whatever to take it out of the cases of Wilkinson v. Bauerle, 14 Stew. Eq. 635, and Bergen v. The Porpoise Fishing Co., 15 Stew. Eq. 397, decided in the court of errors and appeals, and the more recent case of Boehme v. Rall, 6 Dick. Ch. Rep. 542, decided by Vice-Chancellor Green.

The second objection to the claim of the bank rested upon the allegation that the assignment to Mr. Whitehead was for his personal benefit, or as a personal indemnity of which he alone could avail himself. In other words, that the transaction did not contemplate a mere collateral security of which the creditor could avail himself by way of subrogation, but was subject only to the action or control of the person indemnified. There is nothing in the instrument itself to lead to any such conclusion, supposing it were possible under the law to make such an assignment. The general doctrine of' subrogation is defined in Shinn v. Budd, 1 McCart. 234. In 1 Eq. Cas. Abr. 93 this doctrine is applied and is distinctly illustrated, and as it was quoted at length and approved in the United States supreme court, I will be justified in giving it in detail, as found in Hampton v. Phipps, 108 U. S. 263: “A bond creditor shall, in this court, have the-benefit of all counter-bonds or collateral security given by the' principal to the surety, as' if A owes B money, and he and O are bound for it, A gives C a mortgage or bond to indemnify him, B shall have the benefit of it to recover his debt.” The supreme court further says, and the converse of the rule was stated by Sir William Grant, in Wright v. Morley, 11 Ves. 12, where he said: I conceive that, as the creditor is entitled to the benefit of all the securities the principal debtor has given to his surety, the surety has full as good an equity to the benefit of all the securities the principal gives to the creditor.”

These general principles, thus broadly stated, seem, by their clear and'i definite use of words, to conclusively comprehend the very point raised in the present controversy. And I find these general principles to be sustained by every court which has had the precise question under consideration. In Vale v. Foster, 4 N. Y. 312, it is laid down that “A creditor is entitled in equity to the benefit of all collateral securities which the debtor has given to the surety or person standing in the situation of surety.” Curtis v. Tyler, 9 Paige 432; Eastman v. Foster, 8 Metc. 19; Ten Eyck v. Holmes, 3 Sandf. 428. This case also decides that the creditor in such case is entitled to the benefit of any such collateral security in preference to general creditors, in case of assignment for the benefit of creditors.

Another point taken by way of resistance to the claim of the bank, was that whilst there was a form of a transfer it was not in reality a valid one. To support this an effort was made to show that the directors, attempting to make a transfer, had not been so convened as to constitute them a lawful board for the transaction of business. The infirmity insisted upon is a want of notice. The bank, however, presents the assignment under the seal of the corporation, showing that the instrument was executed with all the formalities required in such cases. To overcome the presumption which this entitled the bank to stand upon, witnesses were presented for the purpose of showing that there was no authority for the use of the seal. The minutes of the corporation were not produced; although every effort seems to have been made in behalf of the general creditors to produce them. I cannot but say that it is a source of great regret that they were not forthcoming at the call of those so much interested. A book of so much importance to all concerned could only have disappeared through inexcusable negligence. But the secretary of the company, upon being called to the stand, swore that he gave notice to all of the directors of a meeting of the board. He says that there were adjourned meetings, but not that that meeting was adjourned. The impression made upon uny mind from his testimony is that he gave notice of but one meeting, and that other meetings at which any business was transacted were adjourned meetings. The last meeting of the board was the one which authorized the execution of the assignment of the accounts in question, but there is no evidence to show that there was any notice of that meeting or that it was an adjourned meeting. That all the directors are entitled to notice, either express or implied, of any meeting at which any business is transacted, in order that the business may be binding upon all the persons concerned, admits of no question. State v. Furgeson, 2 Vr. 123, 124; Metropolitan Telegraph Co. v. Domestic Telegraph Co., 17 Stew. Eq. 568, 573; People v. Batchelor, 22 N. Y. 134; Commonwealth v. Cullen, 13 Pa. St. 133; Gordon v. Preston, 1 Watts 385; People’s Insurance Co. v. Wescott, 14 Gray 440; Stow v. Wyse, 7 Conn. 217; see note on pp. 102, 103; Ang. & A. Corp. §§ 488, 402; Morawetz Corp. § 532; and the recent case of Doernbecher v. Lumber Co., 21 Oreg. 573; Simon v. Sevier County Association, 54 Ark. 58.

If the meetings held are regular meetings — that is, such as are provided for by charter or the by-laws, fixing time and place— then notice thereof is implied. Of all other meetings, especially those at which any business not pertaining to the ordinary affairs •of the corporation is transacted, express notice must be given of the time and place and the object or purpose of the meeting. In this case, the secretary swears that he gave notice of one meeting, and that there were several adjourned meetings held. None of these meetings were regular meetings — they were special — and it is that very special and important business should be considered and transacted at them.

It is abundantly established that the meeting at which the assignment in question was determined upon was held without any notice whatever to any of the directors. I say, without any notice whatever, not only because of the statements made by the secretary respecting the adjourned meetings, but because I think he would have remembered sending notices to the directors of the last meeting held by them, if he had actually sent them. In this I am confirmed, considering the force of the secretary’s .statements, by the absence of proof by any of the other directors that notice was received by them. One of them, a brother, was in court and sworn as a witness. Four of these directors were •brothers, and it is inconceivable, under the circumstances of the •case, that they should have had this meeting upon due notice and lost all recollection of it. The statements of the secretary are so strong as to shift the burden. I must conclude that there was no notice of the meeting at which the board undertook to authorize this assignment.

Supposing the intimation of the secretary, that this was one ■of the several adjourned meetings, to be true, can the assignment which was then authorized be upheld ? The assignment was an act of special importance and significance. It had, in no sense, any relation whatever to the ordinary affairs or transactions of the company. It disposed of over $20,000 of its assets to one of the members, and he the president of the board and father of four of the other directors. If there had been any notice of a meeting prior to that, there is nothing whatever to show that the notice included this assignment as one of the objects to be considered. Indeed, so far as any previous transactions of the company were under contemplation at the time of such notice may be referred to for the purpose of throwing light upon the last transactions, the inference is very strong that the only objects in view and the only acts performed at any previous meetings were the satisfaction of other creditors, and had no relation whatever to this assignment or the protection of this endorser. It seems to me, therefore, to be fully established that if there ever was a proper notice of a meeting of the directors served upon each of them, in which the object to be considered was stated, that this assignment was not stated as one of the objects. Besides, the intimation of the secretary that this might have been an adjourned meeting is merely an intimation. He does not even go so far as to say that he thinks it was an adjourned meeting. As above stated, I conclude that it was not an adjourned meeting. This being so, and conceding that when a meeting is properly called for a particular purpose, that it may be adjourned from time to time for the further consideration of the matter so presented, this last meeting of the board of directors in this case was without authority and the assignment made cannot be upheld. If all the directors had been present at any meeting and had agreed to an adjournment for the purpose of considering the question now before us, then the result of their deliberations- would have been sustained. In this case it is shown that Thomas Bell, one of the directors, was never present at any meetings, so that it cannot be said that his consent was had to-the adjournment for any purpose. Nothing can be plainer to the common understanding than that if transactions of this nature be sustained by the courts, the directors of failing and insolvent corporations may perpetrate the greatest amount of wrong and injustice Thompson v. Williams, 76 Cal. 153.

The presumption in favor of the bank, arising from the execution of the assignment, under the seal of the corporation, in my judgment has been overcome.

When I consider the strange disappearance of the book of minutes and the fact that the assignment was made to Mr. Whitehead, the president of the corporation, and that four of the other directors were his sons, one of whom was the secretary and in charge of the book of minutes, whose testimony shows that there was no actual notice of the meeting in question and who does not venture to say that it was an adjourned meetings and in this crisis another brother who was present in court, failing to show that he had notice, I cannot but conclude that the resistance to this claim of the bank should be sustained. The action of the receiver is therefore confirmed.


text:
    Stanton Manufacturing Company v. William McFarland et al.
    "Where, on a preliminary Fearing of an application to enjoin defendant from selling or encumbering a patent assigned to Fim and claimed by complainant under a prior unrecorded assignment, it appears that complainant is entitled to equitable relief as against Fis assignor, that defendant acknowledged to a person other than complainant that he had notice of complainant’s claim, and that defendant, until enjoined, can sell the patent to as many individuals as he can find as purchasers, which, if done, would work irreparable damage to complainant, a temporary injunction should be granted, though defendant makes affidavit resisting the application, denying that he ever had such notice.
    On motion for injunction heard on bill and answer.

      Mr. Francis O. Lowthorp, for the complainant.

      Mr. James Buchanan, for the defendants.
   Bird, V. C.

The question in this case is not whether an injunction which has been issued shall be retained or not, but whether one shall be allowed. The order to show cause rested chiefly upon the allegation that the defendant McFarland had notice of the rights of the complainant before he took an assignment of the patent in question. The complainant’s right, or what he claims to be a right, rests upon an assignment which antedates the assignment under which the defendant McFarland claims, but the former assignment was not recorded. Notwithstanding there was no such record, the complainant alleges that he, McFarland, acknowledged that he was aware of the title of the complainant before he took the assignment under which he claims a preference to the complainant. The defendant, upon the return of the order to show cause, comes with his answer, in which he positively denies the allegation of notice and supports it by his affidavit.

Two questions are presented by the bill for consideration— first, does the complainant show an equitable right to the patent in question ? and second, has he made a case by his bill and proofs which the defendant has not, in this preliminary inquiry,, fully met ? or supposing, in the application of the ordinary rule' in such cases, the defendant has, by his answer and affidavit,, met the allegations of the complainant’s bill and the proofs annexéd thereto, does there appear to be any reason why the-ordinary rule which requires that the injunction should not'go,, should not be applied in this case?

First. As to the rights of the complainant under his assignment, independently of the rights of the defendant McFarland •. I think, as the authorities now stand, they go far enough to justify me, at this stage of the case, in concluding that if the allegations are sustained, the complainant would be entitled to-relief upon final hearing, as between itself and Stanton.

The more important question at this inquiry is whether or not, as the pleadings and proofs now stand, an injunction ought to be allowed, restraining the defendant McFarland from attempting to sell, assign or encumber the patent. The court, in such cases, is controlled by what is regarded as a sound discretion. It seems to be well established that, 'even though the answer and proofs negative the allegations of the bill, which are the foundation for a claim to an injunction, the court may,, nevertheless, grant or continue the injunction until the final hearing. In the case of Chetwood v. Brittain, 1 Gr. Ch. 438, the chancellor used the following language: “ This is a question which must always rest upon discretion, and yet that discretion should not be arbitrary, but yield to well-established rules. The equity may be answered, and yet the court will continue the injunction to the hearing, and especially so if a dissolution would work a greater injury than a continuance of the process.” In speaking on this point in the case of Fleschman v. Young, 1 Stock. 620, Chancellor "Williamson, after using language very similar to that above quoted, added that these principles should be applied, “but not in such slavish obedience to them as to-defeat the ends of justice.” See, also, Stotesbury v. Vail, 2 Beas. 390; Irick v. Black, 2 C. E. Gr. 200; Firmstone v. De Camp, 2 C. E. Gr. 316; Murray v. Elston, 8 C. E. Gr. 129. In this case the court said: “The answer denies, fully and explicitly, the equities of the bill.. Under the general rule in such cases the-injunction should be dissolved. But this rule is subject to-exceptions and does not necessarily prevail where, by continuing the injunction, the ends of justice will be better subserved. The motion to dissolve in such instances has been often denied by this court in the exercise of its appropriate discretion, having regard to the,circumstances of the ease and the effect which a dissolution would have upon the relative situation of the parties in the further prosecution of the suit.” Van Syckle v. Rorbach, 2 Halst. Ch. 234.

In McKibben v. Brown, 1 McCart. 13, one so cautious and learned as Chancellor Green said that “ in cases of real doubt as to the equitable rights of the complainant, an injunction may be retained until final hearing, notwithstanding the denial in the answer.”

In Hilles v. Parrish, 1 McCart. 380, it was said the granting and continuing of injunctions rests mainly on equitable grounds and is not exercised for the mere purpose of protecting legal rights, irrespective of the claim of the parties to equitable relief. Manko v. Chambersburg, 10 C. E. Gr. 168; Henwood v. Jarvis, 12 C. E. Gr. 460; French v. Snell, 2 Stew. Eq. 95; High. Inj. § 1467.

The cases above referred to were decided upon motion to dissolve injunctions which had been granted. I have referred to them upon the belief that the same principles should control the court upon the application for the injunction, upon an order to show cause, when the answer of the defendants and affidavits are presented by way of resistance. This view is -sustained’ by the case. The Society for Establishing Useful Manufactures v. Low, 2 C. E. Gr. 19.

Therefore, it appearing that the complainant is entitled to equitable relief as against Stanton, and that a party other than the complainant swearing that the defendant McFarland acknowledged, to him that he had notice of the claim of the complainant, and it also appearing that the defendant has it in his power to make sale of the patent to as many different individuals as he could find as purchasers in all parts of the United States, if he were not restrained from doing so, which, if done to any considerable extent, would certainly work irreparable mischief to the complainant, it seems to me that the rule stated in the above-named cases not only would justify me, but require me, to advise that the order to show cause be made absolute, notwithstanding the emphatic denial of the defendant McFarland of any notice in his answer and affidavit. If the defendant McFarland asks for a speedy hearing, the complainant will be required to proceed at an early day or suffer the dissolution of the injunction.


text:
    R. Ten Broeck Stout et al. v. Britton Slocum et al.
    Judgment being entered in the common pleas on a case certified from the circuit, the case was returned to the circuit, where defendant moved to open the judgment. The chief-justice denied the motion and ordered the case remanded to the common pleas. Defendant had no notice of the remand till after execution was issued and the time had elapsed in which he could give bond on bringing error. — Hdd, that in the absence of a showing of meritorious defence, the court of chancery could not enjoin process on the judgment on the ground that the remand to the common pleas was improper.
    On order to show cause why an injunction should not be granted.

      Mr. Chauncy H. Beasley, for the complainants.

      Mr. James Steen, for the defendants.
   Bird, V. C.

The object of this bill is to overcome a judgment at law which cannot be relieved against at law, although it is said to have been irregularly obtained, whether such inability results from the neglect of the attorney or the mistake of the judge. The judgment was obtained in the court of common pleas, upon a cause which was certified to that court from the circuit. The judgment being so obtained, the case was again returned to the circuit, and after it was so in the circuit court a rule was asked for, directing that the judgment should be opened. The chief-justice denied the motion, and the order denying such motion also included directions that the cause be remanded to the common pleas, when it is alleged it ought to have been remanded to the circuit, supposing it was in the circuit. This mistake or irregularity of the court was unknown to the defendant in the suit at law, the complainant in this suit, and the execution was issued out of the common pleas and a levy taken upon the property of the defendant. This fact brought to his attention the exact situation. But when he learned that the judgment had been entered in the common pleas fifteen days had elapsed, so that he was deprived of the statutory right to give bond to the plaintiff upon taking a writ of error.

Upon the return of the order to show cause in this case why the suit at law should not be restrained till the determination of the rights of the parties, it was insisted that this was a proper case for the interference of a court of equity to restrain proceedings at law. There seems to be nothing in the case to warrant this court in interfering. To sáy nothing about other defects in the bill and the proofs verifying the fact of the judgment and orders, there is not a single allegation nor a shadow of proof that the complainant had the slightest merits in his defence to the action at law. This is fundamental. Equity never undertakes to relieve a defendant against a judgment at law unless he can show merits. Mere accident,,or mistake or irregularity, is not, under any consideration, sufficient. In the case of Marine Insurance Co. v. Hodgson, 7 Cranch 336, Chief-Justice Marshall said:' “Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties of availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a-judgment, and of which the injured party could not have availed himself at law, but was prevented by fraud or accident, unmixed with any fraud or negligence in himself or his agents, will justify an application to a court of chancery. On the other hand, it may, with equal certainty, be laid down as a general rule that a defence cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defence ought to have been sustained at law.”

There is not a single fact set forth in the bill or affidavit to lead the mind of the court to conclude that the judgment of the common pleas was in any particular wrong, or that it would be against conscience to enforce it. 2 Story JEq. Jur. § 887; 1 High Inj. § 114..

Besides, in this case it appears by the bill itself that, upon the application for a rule to show cause why the judgment should not be opened, the chief-justice refused to entertain the motion. This is very strong proof that the judge who heard the application was satisfied with the judgment. It certainly would be an unheard-of proceeding for this court to attempt in any particular to review the proceedings of a court of law, when it has jurisdiction of the cause and the parties. But it is said that there was a mistake made by the circuit judge in remanding the cause to the common pleas, instead of allowing it to remain in the circuit. I think that this' is as much a mistake or oversight of the counsel for the defendant in the cause, as an oversight or mistake upon the part of the circuit judge. He made the application for the order, and failing he left it to the counsel of the other side to prepare and present such an order as he saw fit. It clearly was the business of the applying counsel to see that an order was drawn in conformity to the rights of his client, even though the decision of the court was adverse.

But it is claimed that, upon reading the provisions of the statute and the various orders of the court, it will appear that the order signed by the chief-justice, remanding the cause to the common pleas instead of to the circuit, was in that particular erroneous; and that because of that error the counsel of the defendant in the suit at law was misled for so long a period of time that he was deprived, by the strict rules of law, of any redress. As the case stands, this leaves' it for this court to assume that the chief-justice committed this error, or, if it does not amount to this, it is an assumption that this court has the power to review the action of the chief-justice in this particular, and to declare that the order which he signed was irregular and unlawful. I am not aware that any court of equity has ever gone so far.

The order to show cause will be discharged and the bill dismissed, with costs.


text:
    Joshua Heston v. Clara Heston.
    Petitioner for divorce wrote to his wife in another state, ashing her to meet hira at a certain place within the state, and, she complying, petitioner did not meet her, but the sheriff did, and served citation on her.-- -Heta, that the service should be set aside as fraudulent.
    On motion to set aside service of citation.

      Mr. Samuel Wallcer, Jr., for the complainant.

      Mr. William Holt, for the defendant.
   Bird, V. C.

The motion in this case is to set aside the service of a citation because such service was procured by circumvention and fraud. The deféndant was living in Pennsylvania with her father-in-law, and the petitioner, having filed his petition for divorce, wrote her asking her to meet him at a certain place in the city of Trenton. She came into the state and attended at the place designated by the petitioner in his letter. The petitioner did not meet her, as was implied in his letter that he would, but the sheriff was there in attendance and served a process of citation and copy of the petition upon her. I think that when the process of the courts is procured to be served by such devices, it is always characterized as fraudulent and will not be recognized. I think that this should especially be the rule in courts of equity.

The motion will be granted, with costs.


author: Pitney, V. C.

text:
    Emma H. Alling v. Florence W. Alling.
    1. A court of chancery has no jurisdiction to compel a parent to support an infant child.
    2. The question of the extent of a parent’s duty to support his or her infant child can arise in this court only where the parent asks for an allowance for that purpose out of the child’s fortune.
    3. In determining this question the court will take into consideration all the circumstances, including as well the parent’s ability as the child’s fortune.
    4. There is no difference between the parents as to their duty to maintain their offspring. The mother is under the same obligation as the father in that behalf. During coverture, with its incidents, at the common law, her duty was suspended, but during her widowhood, and especially under the modern statutes giving her dominion of her own property, she is under the same obligation as the father.
    5. This court is bound to set up the statute of limitations in favor of an infant defendant, against its will even, as against a demand in favor of a mother, unless the case discloses some circumstance which renders such plea inequitable.

      6. When an allowance for past support of an infant is asked for on behalf of a parent or guardian, the court will make such an allowance only as it would have made if it had been asked for in advance, and will not be influenced by any subsequent fortuitous increase of the infant’s fortune.
    7. In fixing such allowance the court will not do more than indemnify the parent or guardian for actual disbursements. It will not allow anything in the nature of profits.
    Heard on bill, answer and oral proofs.

      Mr. William Brinkerhoff, for the complainant.

      Mr. James P. Northrop, for the defendant.
   Pitney, V. C.

This is an undefended suit brought by a mother against her only child and daughter, an infant about nineteen years old. The mother is, and had 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-tliird, 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 o’f 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 all respects such as this court wouldfsanction, 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, 8 C. E. Gr. 136; also, in effect, in Pyatt v. Pyatt, 1 Dick. Ch. Rep. 285. 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 whenever 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 twenty-one years of age she. can do what she pleases with her money, but this court cannot permit her, while a ward, 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 11th, 1887. At that date the defendant was about thirteen 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. Rev. p. 8I¡3 § 80. 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 Cl. & 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, 1 Atk. 406 (1741) (at p. 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, Freem. Ch. 78 (1681), also in S. C., Anonymous, 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 defence 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 would not allow anything out of the principal toward such maintenance, but only the interest, by reason that the defendant had married the mother, who was bound to maintain her own children, and as to the ¿€70 which was paid out to apprentice the child, that was allowed out of the principal.

Billingsley v. Critchet, 1 Bro. Ch. C. 268 (1782), was a suit by the children of Billingsley against his widow, married to Critchet. By the will the widow had also a provision, and she had a further estate from her own family. The question was whether the mother was obliged to support these children, or it was to be done by an allowance out of the interest of the stocks given to them by their father. Counsel expressly admitted that the mother was under natural obligation to maintain her offspring. Lord Commissioner Ashurst said: “If the mother ■still continued unmarried, I should have some doubt; but, since her marriage, she is entitled to an allowance, otherwise it would be compelling the second husband to keep the children, who is under no natural obligation so to do.” And Lord Commissioner Hotham concurred on the ground that the second husband was ■entitled to have his wife’s fortune uncharged.

In Hughes v. Hughes, 1 Bro. Ch. C. 387 (cited by Chancellor Kent, 2 Com. 190, for a contrary doctrine), Lord Thurlow recognized no distinction between the father and mother with regard to their respective duty to support their offspring, and the inquiry there directed was as to the ability of both parents.

The subject was also considered by Chancellor Livingston in Wilkes v. Rogers, 6 Johns. 573. That was a dispute between a mother, who had married a second husband, and the children of the first husband, as to the expense of their support during their infancy and their mother’s widowhood. The first husband, Wilkes, who died intestate, had left a large estate, both reakand personal, and the widow, as his administratrix, had managed it with great ability and supported the children, and after her second marriage a bill was filed by the children for an accounting, as in Pyatt v. Pyatt, 1 Dick. Ch. Rep. 285. Chancellor Livingston reviews all the authorities and holds that the mother’s liability, when a widow, to support her infant children is the same as that of the father. The decree made by the chancellor was varied on appeal, but his doctrine was not seriously disturbed. Judge Yates (at p. 586), says: “ I cannot, however, assent to the distinction, in so full an extent as the counsel on the part of the appellants have attempted to establish it, that the obligation of maintenance and education of children is, at all times, only applicable to the father. On the contrary, if the mother possesses an ample fortune, in her own right, the natural situation in which she is placed, according to my view of the subject, renders it equally obligatory on her to provide for her offspring,” citing the authorities.

In Dedham v. Natick, 16 Mass. 135, it was held that the mother, after the death of the father, remains the head of the family, and has a like control of the minor children as he had when living. She, if of sufficient ability, is bound to support them, and they cannot by law be separated from her.

The equality of natural obligation resting upon both parents to support their children is illustrated and vindicated by the case of Finch v. Finch, 22 Conn. 411. This was an action by a divorced wife against her former husband to recover for the expense of maintaining their common children after the decree of divorce, by the terms of which the custody of the children was given to the wife. The cause was elaborately argued. At p. 415 the court says: “ The case discloses nothing from which we can infer or presume that the mother is not of equal pecuniary ability with the father to maintain their common offspring, nor whether the father has adequate ability to do it. There is a law of our universal humanity as extensive as our race, which impels parents, whether fathers or mothers, to protect and support their helpless children. It is a duty common to both, and the consequent obligation is common. Blackstone very properly says that1 the duty of parents to provide for the maintenance of their children is a principle of natural laxo. By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.’ This duty and this obligation have been variously modified by the positive laws of civilized countries, but fully recognized by all. Connected with this obligation of maintenance there is a parental privilege. The parent is entitled to the custody and care of the child which he sustains and to such service as it can render, and he has a right to exercise his own discretion in determining the fitness and necessity of the allowances to be made and of the support to be furnished to his children, for which he is to be made chargeable.” And again (at p. 4-16): “ The legal liability of the parent necessarily depends upon his or her ability to furnish the maintenance. So long as the parents are both living and continue in a state of ■coverture or marriage, the civil or legal liability of the mother to furnish pecuniary aid or maintenance to her children is suspended or postponed because, as is said by Kent in his Commentaries, vol. 2, p. 192, ‘When the wife, by her marriage, parts-with her ability to maintain her children she ceases to be liable. By her marriage and while it continues she has most effectually parted with her ability and has transferred it, in many instances, to her husband. Her civil existence, even, for many purposes and for this especially, is merged in that of her husband. Her personal property has become his and th'e use of all her real estate with it, so, as between themselves as well as-others, it is equitable and just that the whole burden of maintaining their children should be thrown upon him. But even in sueh a case, a court of chancery, if the wife had a competent separate estate and the husband or father had none, might decree-a maintenance by the mother1 We know of no regulation in-England or in this country, except the inability occasioned by coverture or the want of pecuniary means, by which the equal natural obligation of the mother to maintain her minor children, who are too helpless to maintain themselves, is excused. By the civil law, this common duty of the parents was enforced.”

Here is pointed out the foundation of the real and only difference in the liability of the father and mother. In the first place, the mother is, by nature, weaker and less able to provide for her child; and in the second place, the common-law disability of coverture, which vested her husband with all her personal property and the income of her realty, left her without pecuniary ability. Out of this condition has arisen the notion and rule of law, so far as it is a rule, that the father is liable and the mother is not, to support their infant children.

This rule is further illustrated by the case of Hodgens v. Hodgens, 4 Cl. & F. 323, an appeal from the Irish chancery, which was somewhat like Finch v. Finch, supra, in that it was a contest between father and mother as to which should support their infant children. In neither case, however, was involved the question of taking a portion of the infants’ fortune for their own support. In the Irish case the parents were not divorced,, but were living in a state of separation, caused by the wife’s cohabitation with a paramour, and the wife had a large estate settled, in effect, upon her by an order of the court made with her husband’s consent when in contempt of the court for having married her while the ward of the court, and such estate was •still under the control of the court. Tears afterward she eloped with a paramour, and the husband applied to the court to vary its previous order so as to allow him a yearly sum for the support of the children of the marriage. The master of the rolls in Ireland made him an allowance accordingly. 1 Lloyd & G. t. P. 14-8. This order was discharged by Lord-Chancellor Sugden [Lloyd & G. t. S. 299), but was restored on a rehearing by Lord-Chancellor Plunkett (1 Lloyd & G. t. P. 187), and finally discharged by the house of lords. The powerful reason which influenced Sir Edward Sugden and the house of lords was the conduct of the husband in first marrying the ward of the court in the manner stated in the report, and again, after separating from her and promising the court not to live with her, abducting her and taking her out of the jurisdiction. The judges declared that they never would permit a man who had been guilty of contempt of court, in the manner stated, to derive the least pecuniary benefit from the fortune of his wife. Both Sir Edward Sugden and the lords, on appeal, declared that the court of chancery had no power to compel a mother to support her children in their father’s lifetime. Lord Cottenham said: “As between the mother and the children, I know of no authority for saying that the court has jurisdiction to take from the mother that which the court has given to the mother as against the right of the husband, for the purpose of creating a benefit for the children. * * * I do not feel that a court of equity has a right, under the circumstances of the case, to interpose on behalf of the children against the decree which their mother had obtained by means of the exercise of the jurisdiction of the court against the marital rights of her husband.” And Lord 'Wynford said “ that by no existing law in this country can a woman be compelled to maintain her children, her husband being alive.” All the judges expressly recognized the moral duty of the wife to support her children, but said that it could not be the foundation for a decree.

Chancellor Kent (2 Com. 191) says : The father is bound to' support his minor children, if he be of ability, * * * but this obligation, in such a case, does not extend to the mother, and the rule, as to the father, has become relaxed.” Here it is plain that he is dealing with the liability of the mother while the father is alive, for further on, as above quoted (at p. 192), he says: “"When the wife, by her marriage, parts with her ability to maintain her children, she ceases to be liable. * * * If, however, the wife has separate property, the court of chancery would undoubtedly, in a proper case, make an order charging that property with the necessary support of her children and parents.”

I have already shown that the court has no such power, and I quote this last passage to throw light on the previous one, which has often been cited as authority for what I deem an erroneous position, viz., that a widow with a fortune is under no obligation to support her infant children. I think the last clause, though erroneous, as written, contains the germ of the true rule, namely, that where a widow asks for an allowance out of her infant child’s fortune for its support, the court will take into consideration her own ability to furnish such support. Moreover, the authorities cited by Chancellor Kent seem to me not to support his text, unless construed to apply only to mothers with living husbands. They are Hughes v. Hughes, supra; Pulsford v. Hunter, 3 Bro. Ch. C. 416; Haley v. Bannister, 4 Madd. 275; Whipple v. Dow, 2 Mass. 415; Dawes v. Howard, 4 Mass. 97.

It is difficult to ascertain from the report what was actually decided in Pulsford v. Hunter, but it certainly does not support Chancellor Kent’s text unless construed as above.

In Haley v. Bannister, a grandfather, by his will, made provision for his grandchildren, the children of a daughter who had a husband still living. The husband was poor, but the wife had a handsome separate estate. An allowance was given to the husband out of the children’s fortune, on the ground that the mother, during the life of her husband, was not under a legal obligation to maintain the children.

Whipple v. Dow was an action by a widow against her daughter and her husband, after she attained her majority, for her support and maintenance while she wras an infant. The facts were that the father died leaving a dwelling-house which descended to the defendant and her two sisters, subject to plaintiff^ dower, which was never claimed by or assigned to her. Plaintiff continued to keep the house after the death of her husband and supplied it with necessaries for herself and daughters during their minority. . The latter worked abroad and received the proceeds of their labor to their own use, there being an understanding and agreement between the mother and daughters, made while they were infants, that the mother should occupy the house without rent and that the daughters should board and lodge with her without paying anything therefor. During all this time the defendant was under age and worked at a factory, receiving the whole of her earnings to her own use, being boarded by her mother, but furnishing her own clothing. Of her earnings she had saved $100, which her husband received from her at their marriage. After the marriage the husband repudiated the contract made by his infant wife with her mother, and sued the mother and compelled her to account for and pay the proportion of the rent of the house which belonged to his wife, after which the mother brought this action to recover for the board of her daughter. Upon this evidence the judge charged the jury that the obligation of the parent to support the child depended on the ability of the parent so to do, and that the earnings of the child while so supported belonged to the parent, and further charged that the plaintiff might recover; and this ruling was affirmed by the court in bane.

In Dawes v. Howard the question was between father and children, and Chief-Justice Parsons said: “When minor children have property of their own the father is, notwithstanding, bound to support them if of ability.”

In Ex parte Lord Petre, 7 Ves. 403, before Lord Eldon, the case arose on a petition presented by Lord Petre, an infant eight years old, and his two sisters, still younger, which prayed for proper allowance to his mother, a widow, out of his income, for his support. By the settlement in tail of his landed estate, his mother was entitled to a jointure of £1,500 a year, aud the income was subject to portions of £10,000 each for his sisters and maintenance not exceeding £400 a year during the minority. Besides, the mother received by the will of the late Lord Petre, £2,000 a year and a house rent free. The master, by his report, advised an allowance of £1,600 a year out of Lord Petre’s income to Lady Petre for the maintenance and education of Lord Petre for the time past since the death of his father and the time to come, and £400 a year for each of his daughters. When this unopposed petition and report came before Lord Eldon, he, of his own motion, directed a reference back to the master to review his report, regard being had to the circumstances of the daughters and their mother. The master, by his further report, repeated his former opinion, observing that Lady Petre’s annual income did not exceed £2,000 a year. The Lord-Chancellor stopped Mr. Romilly in support of the report, saying that he should “ confirm the report, though not very willingly, and would not lend a willing ear to any application to increase this allowance.” It thus appears that Lord Eldon deliberately inquired into the pecuniary ability of the widowed mother before fixing the allowance to her out of the estate of her infant son for his support.

Neither this case nor any of the others above cited were cited before Lord Langdale in Douglas v. Andrews, 12 Beav. 310, 19 L. J. Ch. (N. S.) 69, when he said, without consideration, that there was no authority for an inquiry into the ability of the mother in such case.

The question here under consideration is not affected by the rales governing courts in determining the question of advancement or no advancement under the statute of distribution, or of advancement or loan between parent and child. In such case they proceed upon the notion that a father is under a sort of moral obligation, which a court of equity recognizes, to provide— that is, make a provision — for his children, by which is meant something over and above mere education and maintenance. Thornt. Gifts & Adv. § 564- et seq., and cases cited. It seems to be settled in England that a mother is not under any obligation to make such a provision for her child.

I have felt constrained to make this rather tiresome examination of the authorities by what was said, not by what was decided, in the case of Pyatt v. Pyatt, 1 Dick. Ch. Rep. 285. There a widow was left with a family of four infant children, and with no means except what was left by her husband, who died intestate. His estate consisted of a farm and a small personal estate, which netted in her hands as administratrix $2,614.68, and in which her own share was $871.56, and that of each of her four children $435.78. The mother expended all these moneys, and more which she borrowed from her father, in the support of herself and children as a family on the farm left by the father. One of her daughters, who had enjoyed the benefits of this home as well during her minority as for years afterwards, cited her mother to account for the moneys so received by her, and it was held that the mother was entitled to allowance for the support of the child. In the course of his opinion, the learned judge, who spoke for the court of errors and appeals, uses this language: “The actual use of the very moneys in her hands as guardian, to purchase the necessaries of life for the children, shows unmistakably that she was not intending to support them at her own expense. Indeed, she seems not to have had any other resources for their maintenance. As a general rule, a widow is not bound to support her minor children out of her own property, if they have means of their own (2 Kent Com. 190), and she is entitled to a complete indemnity out of their estate for the money expended by her on their maintenance within proper limits. Bruin v. Knott, 1 Phil. 571; Matter of Bostwick, 4 Johns. Ch. 104. It necessarily follows that, when she has cast upon her, as their guardian, the duty of maintaining them and has actually used their money for that purpose, she must be considered to have meant to charge their estate with their support, and all reasonable expenditures therefor should be allowed to her.”

In the case cited from 4 Johns. Ch., the mother, Mrs. Bostwick, who had become, in the eye of the law, a widow by a judicial separation from her husband, was entitled, under her father’s will, to the interest during her lifetime upon the sum of $3,883, which at her death went to her six children, all infants requiring support and maintenance.- In addition to this annuity she had a legacy of $250, and the leasehold on a small house, valued at $250. This constituted her fortune. And this pittance, with the interest on the fund, she had expended in supporting her children, and had, besides, run in debt for that purpose to the extent of $682.82. In this situation she filed her petition, asking that she might be repaid only the sum of $682.82 for the indebtedness already incurred, and be allowed out of the principal fund of $3,683 for the future support of the children. This prayer was granted, but it was granted, as the case manifestly shows, upon the basis of the whole of the interest having been applied by the mother for the support of herself and the children, and that her own inability to support them rendered it necessary, and there was no order that she should be paid beyond the amount for which she had run in debt, and, even as to that, it was ordered that the justness and truth of this charge for past maintenance should be inquired into. The case is no authority for the general position that a widowed mother is, without regard to her own ability and the children’s fortune, entitled to be reimbursed for the whole of any reasonable expenditure she may make for the support of her children. On the contrary, her ability was inquired into and shown to be exhausted.

So with Bruin v. Knott, 1 Phil. 571. No question was there raised as to the mother being entitled to reimbursement for the support of her son lately deceased. Both acquired handsome fortunes from the mother’s husband, the father of the son, and the son was besides entitled to other property, both real and personal, to a large amount. It was evidently not a case in which there could be any pretence that the mother ought to contribute anything toward the support of her son, and the only question discussed was whether, in fixing the allowance to be made to her, she should be allowed for what his support should have cost if furnished according to his fortune, or for what she had actually expended, which was alleged to be less. The lord-chancellor held that the inquiry should be, what was the scale of expenditure on which the child was maintained, and what would be proper to be allowed in respect to it, having regard to the amount of the child’s fortune. And (at p. 575) he said: If the mother has maintained her child on a scale corresponding with his fortune, she will be allowed it. If she has not gone so far, she will be allowed only what she actually expended.” Then follows what is probably relied upon as a statement of a general principle : “ The principle is that the mother is entitled to a complete indemnity for the money actually expended on her child’s maintenance, within proper limits, but nothing more.” But I do not understand, and the case and context forbid the inference, that the lord-chancellor, in using that language, intended to lay down a general principle or canon, applicable generally to cases between widow and child, but he evidently meant only to say that the mother in that particular case and under the particular circumstances of it — not all mothers under all circumstances— was so entitled.

I have already dealt with what was said by Chancellor Kent in his Commentaries (2 Kent. Com. 190).

In Pyatt v. Pyatt the mother had no fortune of her own beyond the trifle received from her husband’s estate, and whatever of business and earning capacity she had was expended in beeping a home for her children, so that there was not the least ground for throwing upon her any part of the burden of supporting her children beyond what she actually did; and so manifest was this that the chancellor, in the court below — -17 Stew. Eq. 491 (at p. 494) — says : The testimony strongly indicates that, after the appellant became of full age, there was a tacit understanding between her and her mother, evidenced by her acquiescence in the mother’s disposition of her moneys, that the moneys were to be used for the living expenses of the family, and that, to the extent of them, she was to compensate her mother for her maintenance.” The principal question litigated in the cause was whether the orphans court had jurisdiction to take into account transactions between a mother and daughter occurring after the child became of age, and the principal subject of contention was her support after she became of age.

For these reasons I must decline to consider Pyatt v. Pyatt as binding authority for the position that a widowed mother is entitled, without regard to her own ability, to full compensation and indemnity from her child’s estate for support and maintenance rendered to it during infancy. Such a rule seems to me not to be warranted by the ancient authorities, influenced, as they were, by the general disability of the wife resulting from coverture ; much less does it seem in step with the modern status of woman under the law and her general emancipation from the artificial restraints of her previous condition and her ability to enter upon many pursuits, once closed to her. On the contrary, I think that, in determining how much the widowed mother is to be allowed, we must'take into consideration, as in all cases, all the circumstances — the mother’s capacity and ability and the child’s fortune. For instance, it would be monstrous, I think, to hold that if a widowed mother was entitled in her own right to a fortune of $20,000, or had a fixed income of $2,000 a year, and had an only daughter, an infant, entitled to a fortune of $5,000, and should educate and support her daughter during infancy in a style commensurate with her own fortune, she should be entitled to call upon that child when she came of age for all the expense of her support and education, though it might far exceed the child’s fortune. And I think the result would be much the same if the mother had a well-established earning ability to the same extent.

I proceed, then, to inquire what will be a proper allowance for the mother in this case. And, first, from February, 1887, until April, 1890. The mother demands, during that period, as follows, approximately:

Board..... .$1,400
Washing. 190
Clothing. . 460
Music.................................................................... $190
Dentistry................................................................. 212
Traveling expenses.................................................... 120
$2,572

or $800 a year. But she kept no account up to January 1st, 1890. The actual cost is a matter of recollection and estimate, except as to music and dentistry.

Now, as before remarked, it is quite clear that the court can now only make such order as it would have made then. The child had no income but had a prospective fortune of nearly $8,000. There could have been no expectation of a legacy from her uncle.

Chaplin v. Chaplin, 3 P. Wms. 365, was a suit by children against their mother, a widow, for an account of the personal estate and rents and profits of the real estate which she had received as their guardian. By the will of their father, the son and daughter had a small income, but after his death, by a contingency that had happened, they became entitled to an ample fortune from another source. ' The mother claimed an allowance for the support and maintenance of the daughter, the son having died, based upon the amount of her fortune as increased by the contingency; but the lord-chancellor held that the allowance to be made to the mother for maintenance must have regard to what the daughter was entitled to at the death of their father, and until the contingency happened the allowance should not exceed the income of their original portions.

All the eases show that the court is, in all circumstances, loath to break into the principal of the estate. But in this case, if application had been made in 1887, the court, as I think, would have undoubtedly done it, but it would have inquired into the capacity of the mother. She had, substantially, no separate estate of her own except her prospective share in her husband’s, but she had an earning capacity of from $1,600 to $1,800 a year, which she had exercised freely and voluntarily for her child, and with such success that she was able, up to that time, to support her without at all running in debt. Neverthless, I think that it would be a hardship on the mother to say that, for that reason, she should not have anything for herself, and I am disposed to allow her $350 a year up to the time when the probate of the will of the uncle vested in the daughter her share in his estate. Up to that time she had merely boarded and clothed her and had paid nothing for her education except for music, and I think her charges for board &c. are rather extravagant. The rule is that a parent or guardian shall not make the least profit out of the child or ward, and I think the sum named will come quite near to being an actual compensation for all moneys paid out up to April, 1890. Erom that time on I think the allowance should be, if practicable, confined to the amount of the interest on her net fortune. The sum above mentioned— $14,000 — will be reduced by the amount of about $1,100 or $1,200 to be allowed out of the principal'before she began to' receive the benefit of the interest upon it, which would leave less than $13,000. The interest on that, I presume, after paying taxes and expenses, would amount to about $600 a year. During that period — from 1890 to 1893 — the annual expense of education and support was at its greatest, amounting, for tuition alone, to $350 a year, besides the increased cost of dress &c. incidental to attending for two years a fashionable finishing school. The charges for the three years of 1890, 1891 and 1892 aggregate $3,700 or over $1,200 per year. In looking over the account I find that the child was maintained in a style which, in my judgment, was quite beyond her pecuniary expectations, and I cannot approve its payment out of her fortune. If the mother chose to support her in such style, I think she must pay a part of the expense from her own income, which was nearly three times that of the child.

I will allow from April, 1890, to the filing of the bill, $800 a year. She stopped going to' school in 1892, and the mother was relieved of that charge. From the date of the filing of the bill I thiuk she should live on the interest.

I will advise an order referring it to a master to state the account of the complainant as administratrix of her husband’s estate, in which she shall be credited as above.