Sidebilder
PDF
ePub

parent, that they would not allow the father *to "190 disinherit the child from passion or prejudice, but only for substantial reasons, to be approved of in a court of justice.a

The obligation on the part of the parent to maintain the child, continues until the latter is in a condition to provide for its own maintenance, and it extends no further than to a necessary support. The obligation of parental duty is so well secured by the strength of natural affection, that it seldom requires to be enforced by human laws. According to the language of Lord Coke, it is "nature's profession to assist, maintain, and console the child." A father's house is always open to his children. The best feelings of our nature establish and consecrate this asylum. Under the thousand pains and perils of human life, the home of the parents is to the children a sure refuge from evil, and a consolation in distress. In the intenseness, the lively touches, and unsubdued nature of parental affection, we discern the wisdom and goodness of the great Author of our being, and Father of Mercies.

All the provision that the statute law of New-York has made on this subject, applies to the case of necessary maintenance; and as the provision was borrowed from the English statutes of 43 Eliz. and 5 Geo. I., and is dictated by feelings inherent in the human breast, it has probably been followed, to the extent at least of the English statutes, throughout this country. The father and mother being of sufficient ability, of any poor, blind, lame, old, or decrepit person, whomsoever, not being able to maintain himself, and becoming chargeable to any city or town, are bound, at their own charge and expense, to relieve and maintain

every
such
person,

in such manner as the overseers of the poor of the town shall approve of, and the court of general sessions shall order and direct.

Potter's Greek Antiq. vol. i. p. 351. Dig. 28. 2. 30. Novel, 115.

If the father, or if the mother, being a widow, shall ab

scond and leave their children a public charge, their *191 *estate is liable to be sequestered, and the pro

ceeds applied to the maintenance of the children.a The statute imposes a similar obligation upon the children, under like circumstances. This feeble and scanty statute provision was intended for the indemnity of the public against the maintenance of paupers, and it is all the injunction that the statute law pronounces in support of the duty of parents to maintain their adult children.b During the minority of the child, the case is different, and the parent is absolutely bound to provide reasonably for his maintenance and education, and he may be sued for necessaries furnished, and schooling given to a child, under just and reasonable circumstances. The father is bound to support his minor children, if he be of ability, even though they have property of their own; but this obligation, in such a case, does not extend to the mother, and the rule, as to the father, has become relaxed. The courts now look with great liberality to the circumstances

a N. Y. Revised Statutes, vol. i. P

614. b See infra, p. 208. n. f. The statute law of New York, prior to the Revised Statutes, which went into operation in January, 1830, extended this legal duty of necessary maintenance to grand-parents and grand-chil. dren, reciprocally. This is the provision in the statute of 43 Eliz., and it has probably been followed, generally, in the other states. See, to this purpose, 4 N. H. Rep. 162. Statute Laws of Connecticut, 1784, p. 98, and of 1838, p. 363, act of South Carolina, 1712, 2 Bailey's Rep. 320. The Revised Statutes of Massachusetts, of 1835, speak, on this point, only of parents and children.

• Simpson v. Robertson, 1 Esp. Cas. 17. Ford v. Fothergill, Ibid. 211. Stanton v. Wilson, 3 Day's Rep. 37. Van Valkinburgh v. Watson, 13 Johns. Rep. 480.

a Hughes v. Hughes, 1 Bro. Rep. 387, Pulsford v. Hunter, 2 ibid. 416. Haley v. Bannister, 4 Madd. Ch. Rep. 146. Whipple v. Dow, 2 Mass. Rep 415. Dawes v. Howard, 4 Mass. Rep. 97.

• If the father be without means to maintain and educate bis children according to their future expectations in life, courts of equity will interpose and make an allowance out of the estate of the children, and in an urgent case, will even break into the principal of a vested legacy, for the purpose of educating an infant legatee. Newport v. Cook, 2 Ashmead, 332.

of each particular case, and to the respective estates of the father and children, and in one case where the father had a large income, he was allowed for the maintenance of his infant children who had a still larger income. The legal obligation of the father to maintain his child, ceases as soon as the child is of age, however wealthy the *father may be, unless the *192 child becomes chargeable to the public as a pauper. The construction put upon the statute of 43 Eliz. renders it applicable only to relations by blood, and the husband is not liable for the expenses of the maintenance of the child of the wife by a former husband, nor for the expense of the maintenance of the wife's mother.d If, however, he takes the wife's child into his own house, he is then considered as standing in loco parentis, and is responsible for the maintenance and education of the child so long as it lives with him, for, by that act, he holds the child out to the world as part of his family.e There was great force of reason and justice in the extrajudicial dicta referred to in the case in Stranye, that the husband ought to maintain the parents of his wife, if he was able, and they were not; because the wife was

• Jervoise v. Silk, Cooper's Eq. Rep. 52. See, also, Maberly v. Turton, 14 Vesey, 499. Massachusetts Revised Statutes, 1835, part 2. tit. 7. ch. 78, are to the same effect. If an infant becomes entitled to a sum of money during infancy, the court of chancery, on the application of the father, will order a reference in respect to the future maintenance of the child out of the fund, but it is not usual to make such an allowance retrospectively. 1 Tamlyn, 22.

b Parish of St. Andrews v. Mendez de Breta, 1 Lord Raym. 699.

• Tubb v. Harrison, 4 Term Rep. 118. Gay v. Ballou, 4 Wendells Rep. 403. But now, by the English statute of 4 & 5 W. IV. c. 76. sec. 57, the person who marries a woman, the mother of legitimate or illegitimate children, becomes liable to maintain them as part of his family, until the age of sixteen years, or until the death of the mother.

a Rex v. Munden, 1 Str. 190. Freto v. Brown, 4 Mass. Rep. 675. Anon. 3 N. Y. Legal Observer, 354.

• Stone v. Carr, 3 Esp. Cases, 1. Lord Ellenborough, in Cooper v. Martin, 4 East. 82.

liable before marriage to support them, and her personal property, and the use of her real estate, passed, by the marriage to the husband. But the statute does not reach the case; and when the wife, by her marriage, parts with her ability to maintain her children, she ceases to be liable.a 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.

A father is not bound by the contract or debts of his son, even for articles suitable and necessary, unless an actual authority be proved, or the circumstances be sufficient to imply one. Were it otherwise, a father who had an imprudent son, might be prejudiced to an indefinite extent.

What is necessary for the child is left *193 to the discretion of the parent; and where the

infant is sub potestate parentis, there must be a clear omission of duty, as to necessaries, before a third person can interfere, and furnish them, and charge the father. It will always be a question for a jury, whether, under the circumstances of the case, the father's authority was to be inferred.b If the father suffers the children to remain abroad with their mother, or if he forces them from home by severe usage, he is liable for their necessaries. And in consequence of the obligation of the father to provide for the maintenance, and, in some qualified degree, for the education of his infant children, he is entitled to the custody of their persons, and to the value of their labor and services. There can be no doubt, that this right in the father is perfect while the child is under

2

Billingsly v. Critchet, 1 Bro. Rep. 268. Cooper v. Martin, 4 East, 76.

Baker v. Keen, 2 Starkie, 501. Van Valkinburgh v. Watson, 13 Johns. Rep. 480. Mortimer v. Wright, 6 Meeson of W. 482.

c Lord Eldon, in Rawlins v. Van Dyke, 3 Esp. Cases, 252. Stanton v. Wilson, 3 Day's Rep. 37. Though the father be liable for necessaries supplied to his child without his consent, because he is bound to support him and is entitled to his services, yet a guardian is not so liable. Call v. Ward, 4 Watts. f Serg. 118.

the age of fourteen years. But as the father's guardianship, by nature, continues until the child has arrived to full age, and as he is entitled by statute to constitute a testamentary guardian of the person and estate of his children until the age of twenty-one, the inference would seem to be, that he was, in contemplation of the law, entitled to the custody of the persons, and to the value of the services and labour of his children, during their minority. This is a principle assumed by the elementary writers,a and in several of the judicial decisions. In Gale v. Parrot, it was observed, that if the minor was eloigned from the parent, he might, of necessity, be entitled to receive the fruits of his own labour, and that it would require only slight circumstances to enable the court to infer the parent's consent to the son's receipt and enjoyment of his *own wages. The *194 father, says Blackstone, has the benefit of his children's labour while they live with him, and are maintained by him, and this is no more than he is entitled to from his apprentices or servants.d

The father may obtain the custody of his children by the writ of habeas corpus, when they are improperly de

* 1 Black's Com. 453. Reeve's Domestic Relations, 290.

Day v. Everitt, 7 Mass. Rep. 145. Benson v. Remington, 2 Mass. Rep. 113. Plummer v. Webb, 4 Mason, 380. The father may maintain suit in the admiralty for the wages of a minor son earned in a maritime service.

61 N. H. Rep. 28.

d 1 Black's Com. 453. A father may, by agreement with his minor child, relinquish to the child the right which he would otherwise have to his services, and authorize those who employ him to pay him his own earnings. (Jenney v. Alden, 12 Mass. Rep. 375. Whiting v. Earl, 3 Pick. Rep. 201. Burlingame v. Burlingame, 7 Cowen's Rep. 92. Morse v. Welton, 6 Conn. Rep. 547. Vavney v. Young, 11 Vermont Rep. 258. Tillotson v. M'Crillis, Ib. 477. The father is not entitled to the wages of a son, nor to avoid his reasonable contracts when he separates from the mother and leaves the son under her care. Wodell v. Coggestrall, 2 Metcalf's Rep. 89.) The son, in such cases, may make a valid special contract with his employer. Chilson v. Phillips, 1 Vermont Rep. 41.

« ForrigeFortsett »