In re Bostwick

The Chancellor.

The practice séettts sufficiently settled * v by the authorities referred to, and by that of ex parte Mountfort, (15 Ves . 445.) to allow of the application for maintó J , y nance, by petition. The history of the cases where relief of this kind has been afforded upon petition, without biil, is-given in the case ex parte Salter, (3 Bro. 500;) and in that" case ihe costs of the petition were allowed to the guardian in his accounts, according to the precedent in ex parte Thomas, (Amb. 196.)

The greatest difficulty in this case is- the application to-break in upon the capital of the infants’ estate, for their main-' tenance and education. The legacy of one eighteenth of the testator’s estate, (and which amounted to 3,682 dollars, 99 cents,) was “to be put at interest, by the executors,'upon real security, at six or seven per cent, pel’ annum; and thé interest of that sum was to be paid half yearly to the petitioner, during her natural life; and after her decease, the moneys So put at interest for her use' were given and tie-gueathed to her lawful heirs, equally to' be divided between them.” We must impair the principal sum, or Uo relief can be afforded to the infant's. This case affords peculiar and strong claims to such an interference. The petitioner calls for it, though she "thereby diminishes her own income. The capital is small when divided among the six children; and we may well adopt the remarks of Lord Keeper North, in Barlow v. Grant, (1 Vern. 255.) that it was “ fit and reasonable that part of the principal of a child’s legacy of 100k should be allowed for his education. The money laid out in the child’s education was most advantageous- *103 and beneficial for the infant, and, therefore, he should make no scruple of breaking into the principal, where so small a sum was devised, that the interest thereof would not suffice to give the legatee a competent maintenance and education. But in case of a legacy of 10Q0Z. or the like, there it might be reasonable to restrain the maintenance lo ° the interest of the money.” So, also, in Harvey v. Har ve y, (2 P. Wms. 21.) the same practice was pursued, and the Master of the Rolls declared, that where a legacy was given to an infant, payable at twenty-one, without any devise over, and the infant has nothing else to subsist on, the court “ will order part of this legacy, in order to provide bread for the infant, to be paid presently, allowing interest for the same, to the person paying it, out of the remaining principal.”

But notwithstanding the doctrine of these cases, the Master of the Rolls, in the modern case of Walker v. Wetherell, (6 Ves. 473.) would not only not allow trustees, of their own authority, to impair the capital of the infant’s estate, but said, that it had very rarely occurred, that the Court itself had broken in upon the capital, for the mere purpose of maintenance, though it frequently had done it for the purpose of advancement, or setting up the child in life. “ As to mere maintenance,,” he said, “ I doubt it, even upon a petition presented. It is a great misfortune, if the capital is so small as not to leave a comfortable maintenance and education; but what can the Court do ?” The answer to be given to these doubts of the Master of the Rolls, is, that an allowance of this kind is within the powers, and under the discretion, of the Court, and may, in many cases, be as fitly and properly made for maintenance and education, as for an advancement. It may be much more so; for an advancement might not be of much use to a child that had been brought up in poverty and ignorance. The capital coming to each child, in this case, at the uncertain, and probably distant, period of its mother’s death, would not much *104 exceed 600 dollars, and the necessity of immediate relief to the petitioner, for and on behalf of her children, is palpa- . . __ . ble and pressing. The doctrine of Lord Keeper North is reasonable, and applicable to the case, and I am disposed, in this instance, to follow it. The cases of Cavendish v. Mercer, and of Greenwell v. Greenwell, (5 Ves. 194 and 195, note,) are strongly in favour of such an allowance, and they rested on the same principle. There were bequests, in those cases, to grandchildren, payable at twenty-one, and the interest to accumulate and be paid with the capital; yet, the necessity of the cases requiring it, a maintenance was ordered out of the fund, taking the consent of the persons entitled over, in the event of the childrens’ death. This was done from the reason and necessity of the case, thokgh Lord Rosslyn observed, in one of those cases, “ I fear, if I should make the decree, it would be my will, and not the testator’s.”

The petitioner, also, asks for reimbursement for the past maintenance of her children, or for the discharge of debts which she has of necessity incurred for that purpose. Such an allowance is, also, within the rules and practice of the Court. Lord Thurlow, in Hill v. Chapman, (2 Bro. 231.) and Andrews v. Partington, (3 Bro. 60.) held, that no allowance could be made to a parent for the past maintenance of an infant. But, afterwards, in Reeves v. Bryman, (6 Ves. 425.) and in Sherwood v. Smith, (6 Ves. 454.) Lord Eldon approved of the alteration in this old practice, by Lord Rosslyn, and he allowed a father to be reimbursed for the past maintenance of a child. Lord Thurlow was said to have changed his first opinion on this point; and Lord AlvanUy frequently made a retrospective allowance for maintenance, and the practice afterwards grew familiar, (Sisson v. Shaw, 9 Ves. 285. Chambers v. Goldwin, 11 Ves. 1. Maberly v. Turton, 14 Ves. 499.) The old rule, as it was first laid down by Lord Thurlow, would lead to great inconvenience, for though the wants of the infant *105 might be ever so pressing, he could not receive any mainlenance (charity excepted) without the expense of a suit, and ' . L- 1 reierence to a Master

There must be a reference in this case. I might, indeed, say with Lord Rosslyn, in Greenwell v. Greenwell, “ that I think myself sufficiently warranted to order a suitable allowance for maintenance, without a reference,” yet the -extent of that allowance, and the disposition of the fund, so as to meet it, and the other means of support (if any) of the petitioner, and the items of her charge for past maintenance, are proper subjects of reference.

I shall, therefore, order and direct, that the executors pay to the petitioner, within twenty days after service of notice of this order, two hundred dollars out of the fund set apart- for her and her children, towards the maintenance and education of her children, and for which the executors shall have the requisite allowance in their accounts; and that it be referred to a Master to inquire and report what yearly sum, under all the circumstances of this case, would be a proper allowance for the petitioner and her children, and what disposition ought to be made of the fund, so as to meet it, and also to examine and report on, the justness and truth of the charges for past maintenance, &c.

Order accordingly.

Maintenance allowed tor infants, out of the capital of their estate, upon petition, without bin. • the sum dethe principal may be applied; otherwise, tue interest on,y- parent may of ?he°7nfant’s maintenance,8*