1 Br. C. C. Sometimes the court will decide upon the father's ability it- See ex-parte, self, and omit this matter in the order of reference, where the Penlege, circumstances are strong; as where the fortune of the child is 387. n. (1) very large, and the father has other children, or will be much Belt's Ed. inconvenienced by the burthen of supporting the child adequate- Vesey, 733. ly to his fortunes, in which the father cannot participate. The state of facts in this case must include a statement of the father's circumstances, family, &c. and the report certify his inability. In other respects the proceedings are the same as before detailed. Where a father applies for maintenance, he must appear incapable of properly supporting his child. 1820. and 3 Horte v. Pratt. Buckworth v. "When the question turns upon the ability of the father to Per Lord maintain the child, the rule is not laid down upon the father's Thurlow in absolute insolvency only; but maintenance is given when the Buckworth, father is not in such circumstances as to be able to give the Coxe's child such an education as is suitable to the fortune which he cases, 80. expects." 52. The father was intitled to an estate of £6000 per year, Jervoise v. and his six children to one of £8600. The father having ap- Lilk, plied for maintenance, the Master allowed £1400 a year out Cooper's Rep of the infants' fortune. The father stated his establishment to be equal to his income. On petition to confirm the report, Sir William Grant said,-It is very loose to consider any particular income as enabling a father to maintain his children. On the outside it would here seem enough; at the same time the expences of his establishment, and his children's expectations are circumstances to be looked to. It would be a harsh thing in the court to oblige the petitioner to put down his establishment in any part, to educate his children, when they have large incomes of their own. I do not see enough to make me dissent from the conclusion of the Master, who, of course had his attention directed to all the facts and particulars more than the court can possibly have." If property is given to an infant, and maintenance directed out of it, it is construed to mean, if there is no maintenance due to the infant in law, and if the father is of ability to give it suitably, the court will not apply the property. 66 Per Lord "A direction to trustees to apply the produce of a fund in Thurlow, in the maintenance of infants is always construed in this court to Andrews v. mean, that such application shall be made, if there is no main- Parlington, 2 Coxe's Cases, tenance due to them in law, but not otherwise. Now while 223. the father is living, maintenance is in the law due from him." Hughes v. 9 Vesey, 288. 14 Vesey, 499, And see Fawkner v. 408. Wilkes v. The Lord Chancellor said,—" The practice was to refer it to the Master to enquire whether the parents were of ability to maintain the children; if not, then to report what would be a proper maintenance; and this practice did not vary where a maintenance was directly given by the will." It was Lord Thurlow's rule, not to allow a father any thing for his past expenditures, however unable to support the children; but only from the date of the report. In Andrews v. Parlington, he said,-"It was the constant and very proper rule of the court, that it never will make the father any allowance with retrospect to what he has paid without the authority of the court." But in Sisson v. Shaw, the Master of the rolls said,"Andrews v. Parlington, had been much shaken; he had found two decrees by Lord Alvanley, allowing maintenance for the time past." And Lord Elden observes in Makerly v. Turton," In the case of Andrews v. Parlington, Lord Thurlow thought it so extremely dangerous, that a parent should determine for himself the question whether he was of ability to maintain his children, that he would not allow Mr. Parlington one shilling of the money which he had permitted to be expended in the time past. The decision was according to precedents; but there is no doubt that since that time, the rule has been altered. At present, as the precedents stand, the court must look at each case, with a view to make such order as the rule prescribed by the testator and the conduct of the parties allows." Mr. Verney, Master of the Rolls, states, that the mother like the father can only have maintenance out of the infant's property, where she is unable to support him. "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." And in our court, the obligation appears to be considered 6 John. Rep. binding upon the mother, although perhaps not to as great an extent as upon the father. 585. 593. Domat's civil Our rules upon this subject differ from those of the civil law, by which the father was allowed the usufruct all property obtained by the child, with certain exceptions, such as the donations of the prince, and acquisitions coming under the head of child's peculium. The father was also entitled, if in necessitous, cir In 7 Jun. cumstances, to a support out of the property of the child. one point, the court has advanced towards this principle. The 1 Vesey, 160. Master may take into consideration the circumstances of the 403. rest of the family, in making his allowance of maintenance, 7 CAP. III. SECTION S. REFERENCE AS TO AN INFANT TRUSTEE OR MORTGAGEE. L. 148. IT is provided by statute," that it shall be lawful for Sess. 24. any infant seized or possessed of any lands, tenements, or Cap. 30. 1 R. hereditaments by way of Mortgage, or in trust only for others, to convey the same by direction of the court of chancery, signified by an order made on hearing all parties concerned, and on the petition of such infant or his guardian, or of any person in any way interested therein." This act is taken from the 7th Ann. Cap. 19. "A petition must be presented. A motion is irregular." & Vesey, 96. The court sends it to a Master to enquire whether the in fant is a trustee or mortgagee. "In this case it is only necessary to ascertain whether the Ex-parte infants be really trustees within the act, according to the al- Quackenboss, 3 John, C. C. legation of the petition; and the usual course is to order a 408. Master to enquire and report. I shall accordingly direct, that the petition be referred to one of the Masters of the court to examine into the matters of fact contained therein, and to report the same with his opinion thereon, and that he give notice to the guardian or next friend of the infant of the time and place of such inquiry." For the form of the petition, See 1 Turner, 405, where the mortgagor came to redeem, and the heir was an infant. The order runs,-"That it be referred to Mr. one of the Masters of this court; to examine and certify how the estate (in the premises set forth in the petition) is vested in the said A. B. and whether he is an infant, and a mortgagee, (or 2 Fow. Exc. trustee) of the said premises, or any and what part thereof, within the intent and meaning of the act of, &c. entitled, "an Pr. 431. 1 Turner, 106. 2 Fow. Ex. Pr. 432. 1 Turner, 399. Fee Bill. 1 Turner, See Post, Tit. act, &c." and after the said Master shall have made his re- In England a state of facts is laid before the Master, set- This state of facts must be supported by the deeds or other In ex-parte Quackenboss, notice is directed to be given; a warrant therefore must be taken out which may be under written," To proceed upon the state of facts left by the petitioner. The nature of the proceeding, and parties to the petition will shew the Master upon whom it should be served. no state of facts is filed, the underwriting may be,-"To proceed upon the inquiry, whether A. B. is an infant trustee." If When the report is prepared, the usual warrants are taken out on preparing it, &c. The report comprises the matters of the state of facts as proved, and the Master's opinion whether the infant is a trustec or not. See Appendix, No. 42. t t Attorney Ge neral v. Pom fret, 2 Coxe's Cases, 221. parte Jutin, 3 Ves. & B. 149. WHO ARE INFANT TRUSTEES OR MORTGAGEES IF the infant has a duty to perform beyond the mere convey ance, he is not within the act. "Money was given by a will to be laid out in lands to be settled for teaching poor children, and putting them out as apprentices.-The executors laid out the money, and took conVeyances of the land to trustees for the purposes of the will. The Master found the legal estate vested in an adult, and the infant, but concurred he was not within the act, inasmuch as he apprehended that act related only to cases of mere or pure trustees, and not where the trustee had a duty or office to per form. The bill was for the appointment of new trustees, and a petition was presented that the infant might convey. The Master of the Rolls thought him within the act he would be out of it, although he had no beneficial interest, if he had any duty to perform. The Master's principle was right, but he had misapplied it; because by the conveyance to new trustees, to be appointed by the court, the duty would cease, and be performed by other persons; but if there was no such appointment, then the infant would not be within the act." The cases are contradictory whether the infant heir of a vendor who has died after a contract for sale, but before conveyance, is within the act. "A. having made a contract with Smith v. B. for the sale of real estate, and earnest being paid, both Hubbard, Dickens, vendor and purchaser die before completion. A bill is filed 730. and sec by the executors of the vendor against the executors and de- Sugden on visces of the purchaser, for the payment of the residue of the vendors, 153. purchase money, and also against the infant heir of the vendor, to compel him to convey. The Lord Chancellor held the infant to be a trustee within the statute, and directed him to convey." 3 P. Wms. P. 387. In Goodwyn and Lyster, however, a contrary doctrine was held. "G. and P. articled for the purchase of an estate. to convey to G. by the 21st March ensuing. G. to pay the purchase money. P. died before the day, leaving an infant heir. The bill was brought for a conveyance on payment of the purchase money. Lord Chancellor Talbot said,-"The question was whether this, being a trust only by construction of equity, was within the act, and that he inclined strongly to the negative. That there was no doubt it was a trust, whenever one man articles for the sale of an estate and agrees to convey for a certain consideration; from the time the articles ought to be performed, the one becomes entitled to the estate, and the other a creditor for the purchase money. But he did not think constructive trusts to have been within the view of the act; and decreed that a day should be given to the infant to shew cause why he should not convey, as in other cases." "So again where there was an infant devisce of real estate Anon. 3 P. charged with debts, and the personal estate was deficient, the Wms. 389. n. (a) court would not treat the infant as a trustce within the act, but gave him a day as usual." 2 P. Wis. The case ex-parte Vernon is also an authority against con- 19. structive trusts being within the act. "The father had frequently declared he was a trustee for A. who had paid the purchase money. Lord King allowed |