In re Ryder , 4 Edw. Ch. 338 ( 1844 )

The Vice-Chancellor :

Parents are bound to support their offspring during infancy. It is both a legal and a moral obligation which rests upon the mother as well as the father, when she happens to become the surviving parent and no other provision is made for the children.

If the children have an estate independent of the parent, whether it bé father or mother, the court of chancery may and often does make an allowance out of their own estate for their support, in order to relieve the parent from the burden, especially when such parent is in moderate circumstances or unable to afford a suitable support. But here the petitioner and the other children of Mrs. Richards, late Mrs. Ryder, have no estate out of which a present support can be ordered, without the consent of the mother. Their estate is one in remainder merely with no immediate benefit or income to them. The mother has the use and income during her life as her own, to dispose of as she may please, without any trust or accountability for such income to any of her children. When the will was made and when it took effect, the father of the children was alive and the testatrix may have supposed that he would be able to do his duty towards them and, hence, did not provide that the property left by her to their mother - for her separate estate should be devoted, during her life time, to their support. The testatrix doubtless believed it would be so applied if it became necessary; but this she was willing to leave to that mother’s discretion, as a matter of maternal feeling which the court of chancery can have no jurisdiction over or right to control. None of the cases cited by the petitioner have gone this length.

If the mother, Mrs. Richards, should become desirous of having the capital of this estate broken in upon for the purpose of giving a necessary support to her children, her application might be granted within the principle of the Bostwiclc Case, 4 J. C. R. 100, and the class of cases there referred to. But, as the breaking in upon the capital would be to diminish her income, it cannot be done without her consent.

Neither can the alternative prayer of the petition be acted upon.

As to the legal liability resting on the matter at common law and by statute 1 R. S. 614, it is sufficient to say that the remedy to enforce it must be pursued in another court.

Order, dismissing the petition, with costs to be taxed and to be paid by the next friend.