In re Ryder , 11 Paige Ch. 185 ( 1844 )

The Chancellor.

It is unnecessary to look into the affidavits in this case, or to inquire whether the mother of the appellant had good and sufficient reasons for withholding a support from the petitioner to enable him to complete his professional education; for, this court has clearly no jurisdiction to make any order in the case, upon this petition. There is no pretence of claim on the part of the petitioner to a support out of the income of this estate, under the will of his grandmother. There is an absolute gift from the testatrix, to her daughter, of the whole income of the estate for life, for her own separate use; and the children have no more legal or equitable claim to such income than any strangers to her blood would have had under a similar devise, of a remainder in property after the termination of a previous life estate therein.. Nor can the court, in this case, even with the consent of their mother, appropriate any part of the capital of the fund to the support or maintenance of her children, as they have not an interest in any part of the estate. The children have only a contingent interest, even in the capital of the estate; and the extent even of that contingent interest cannot be ascertained while the mother is alive, and is capable of bearing children. For, the after-born children are equally entitled with those who were in esse at the death of the testatrix. And such of the children as may happen to die in the lifetime of their mother will have no rights to the estate, even if they should leave issue. For the estate, in that event, is given to -the issue and not to them. It is impossible to say, therefore, that either of the six children, now in existence, will ever be entitled to any part of the capital of this estate. The case is different-where a remainder in a fund is given to a class of infants absolutely, with a right of survivorship as between themselves merely. There, as the chances of survivorship are equal, the court, with the assent of the owner of the particular estate in the fund, may devote the capital of the fund to the support of all the infants equally, as it will produce no injustice to either. (See Ex parte Kibble, 11 Ves. 604; Errat v. Barlow, 14 Id. 202; Turner v. Turner, 4 Sim. Rep. 430; and Ex parte Davison, 6 Paige’s Rep. 136.) The trustee, in the presen tease, must keep the capital of the fund undiminished, until, by the death of Mrs. Richards, it can be ascertained who is entitled to share in such fund.

A parent, who has the means, is undoubtedly bound to support his or her minor child, that is, to afford the child a bare support. The law, however, gives to the parent a corresponding right to the services of the child while such support is afforded; for the parent is not bound to support his children in idleness, even if his property is sufficient to enable him to do so. The remedy, to compel a parent to furnish necessaries for his infant children, is not by a petition to this court. The performance of that duty must be enforced by a proceeding under the statute, by an application to the general sessions, for an order upon the parent for the support of his child. Or a stranger may furnish necessaries for the child) and recover of the parent compensation therefor, where there is a clear and palpable omission of duty, on the part of the parent, in supplying a minor child with necessaries. (Van Valkenburgh v. Watson, 13 John. Rep. 480.) And it seems that the neglect of a parent to provide for his infant child of tender years, and who is incapable of providing for himself, is an indictable misdemeanor. (See Rex v. Friend, Russ. & Ry. C. C. 20.) In the case under consideration, however, where the son is twenty years of age, and in perfect health, so as to be able to support himself by his own industry, I doubt whether any court is authorized to compel his mother to furnish the means of obtaining a professional education, whatever may be the amount of her property. At least for the court of chancery, over which I have the honor to preside, I must disclaim the existence of such a power to control parental discretion.

The vice chancellor was therefore right in refusing the prayer of the petitioner. And as the want of jurisdiction appeared on the face of the petition itself, and not upon disputed facts which might have formed a prima facie case for relief) the next friend of the petitioner is answerable for the consequences of not informing himself correctly as to the law of the case, before he allowed his name to be used in such a petition. The vice chancellor was therefore right in charging him with the costs of the respondents in resisting the application. And for these reasons the order appealed from must be affirmed, with costs to be paid by the appellant.