given for main- diate interest In Allen v. Coster (d), the testatrix bequeathed 6,000l. stock to Where immeher executors and trustees in trust to pay the dividends to G. A., to be by him applied for the maintenance and education of his son and daughter, until the latter should attain twenty-one, and then after setting apart sufficient to provide an annuity of 207. a year for the benefit of G. A. and his wife for their lives to divide the principal equally between the son and daughter, with benefit of survivorship, if either died under twenty-one: after the death of the parents the sum appropriated for the annuity of 20%. was bequeathed to the children as before. The parents were in low circumstances; and, in consequence of their misconduct, the guardianship of the infants had been committed by the Court to other persons. The parents presented their petition to the Court submitting that, during the minorities of the children, they were entitled to the dividends, after properly providing for the maintenance and education of the children and on their behalf the authority of Heysham v. Heysham (e) was relied upon. It is not stated what amount the Court had previously ordered for the maintenance and education of the infants, but Sir L. Shadwell, V. C., was of opinion, that it was a case in which the Court could increase the maintenance of the children for the support of the parents; though, on account of the misconduct of the parents, he did it with reluctance; but without adverting to the construction of the will he thought he might give to the infants the benefit of the income of the property so as to assist the parents; to do so was evidently for the benefit of the infants. the fund does not operate as children. 3. We may in this place observe, that where the fund settled 3. So where does not operate as a bounty to the children, but the maintenance provided for them, is part of the execution of a trust contained a bounty to the in a contract, as by settlement, to which the father is a party; the Court (notwithstanding the ability of the parent to maintain his children) will allow him the expense of their maintenance out of the produce of their fortunes. Thus, in Mundy v. Earl Howe (f), previously to and in consideration of the marriage of Edward Mundy with Lady Middleton, the whole of her ladyship's personal estate was vested in trustees, by settlement, in trust, as to part, after the death of Lady (d) 1 Beav. 202. (e) 1 Cox, 179. (f) 4 Bro. C. C. 223; see also Meacher v. Young, 2 Myl. & K. 490; Where imme diate interest Middleton, for the children of the marriage, in such shares, and at such ages and times, as her ladyship should, by deed or will appoint; and in default of appointment, for sons at twenty-one, and for daughters at twenty-one or marriage and if there happened to be one only child, then for such child; with power for the trustees, after the death of Lady Middleton, out of the interests of the funds, to pay for the maintenance and education of the child or children for whom portions were provided, until such portions became payable, such yearly sum and sums of money as they his trustees should think proper, not exceeding the interest of the portions. There was one child of the marriage, Elizabeth, an infant; and Lady Middleton died without making any appointment. Mr. Mundy became entitled to 30,000% by the will of Lady Middleton's brother; and he having several children by a former wife, a question arose whether he should be allowed the interest of the funds provided by the settlement for Elizabeth's maintenance, or whether, as he was of sufficient ability to maintain her and his other children, he should be at that expense out of his own fortune? Upon a suit instituted to remove this question, Lord Loughborough, C., expressed himself to the following effect: "In this case the child is entitled to the whole interest, but nothing is vested till twenty-one or marriage. It is perfectly clear, from the cases, that where the fund is given as a bounty, notwithstanding a provision for maintenance, the father, if of ability, must maintain the child; but in this case, it is part of the execution of the trust contained in the contract. The family of Mr. Mundy was in contemplation at the time of the contract, because there is a provision in the settlement, that they shall take nothing from Mr. Mundy, but by descent or gift. This was a provision made by contract for the children of the marriage with Lady Middleton, out of property, which, independent of the settlement, would have become Mr. Mundy's. By the settlement, Lady Middleton was left in full possession of the dominion of her own property, even against her own children; and the trustees are required to apply, at a given period, a certain proportion of the interest as maintenance. The provisions in the settlement were beneficial to Lady Middleton, and acceded to by Mr. Mundy. The Master must therefore inquire what will be a proper maintenance; but I think there ought to be a direction to diminish that allowance in respect to the great additional fortune Mr. Mundy derives from Lady Middleton." The principle of the preceding case of Mundy v. Earl Howe, diate interest and of those referred to in the note, was discussed by Lord Cot- Where imme tenham, C., in Thompson v. Griffin (g); but in the latter case, given for mainthe application of the father for maintenance out of the income of tenance and the child's fortune was rejected. There the wife's leasehold parent of ability, it is not estate was, on her marriage, settled to her separate use for to be applied. life, and after her death, upon the child, if only one, absolutely, but if more than one, then upon all the children, (except an eldest son) equally as tenants in common, sons at twentyone, daughters at that age or marriage. The wife's freehold property was also settled to her separate use for life with remainder to her eldest or only son in fee, with executory limitations over in the event of his dying without issue, living at his decease. The settlement contained a power authorizing the trustees to apply the income of the property for the maintenance of the child or children presumptively entitled. The mother died, leaving an only child, a son, an infant. Lord Cottenham, C. held, that even supposing the provision for maintenance had applied to the existing circumstance of there being but one child, the father would not, upon that construction of the settlement, have been entitled to require the application of any part of the income of the child's fortune for maintenance, so long as he was of ability to maintain it; since there was no trust nor any contract for the benefit of the father in the settlement, to relieve him. from the burden of supporting his children; there was merely a power, and to compel the execution of that power, would be going far beyond the other cases. His Lordship, however, was of opinion, that upon the true construction of the settlement, the power in the events which had happened did not exist. SECT. VIII. Of the application of Interest out of the Income of Property belonging to Infants for Maintenance, under the stat. 11 Geo. 4 and 1 Wm. 4, c. 65. Of application maintenance of of interest for The ordinary jurisdiction of Courts of Equity, in allowing the income of the property of infants for their maintenance, as also in other matters for their benefit, has from time to time been extended by various acts of Parliament. These statutes, since the and 1 Wm. 4, former edition of this work, have been consolidated and amended c. 65. by the 11 Geo. 4 and 1 Wm. 4, c. 65. The 32nd section applies to the subject of the present chapter, infants under 11 Geo. 4, interest for maintenance under 11 Geo. 4, and 1 Wm. 4, c. 65. Application of and enacts, that it shall be lawful for the Court of Chancery, by an order to be made on the petition of the guardian of any infant in whose name any stock shall be standing, or any sum of money by virtue of any act for paying off any stock, and who shall be beneficially entitled thereto, or if there shall be no guardian, by an order to be made in any cause depending in the said Court, to direct all or any part of the dividends due or to become due, in respect of such stocks or any such sum of money, to be paid to any guardian of such infant, or to any other person, according to the discretion of such Court, for the maintenance and education, or otherwise for the benefit of such infant, such guardian or other person to whom such payment shall be directed to be made, being named in the order directing such payment; and the receipt of such guardian or other person for such dividends or sum of money, or any part thereof, shall be as effectual as if such infant had attained the age of twenty-one years, and had signed and given the same. From what time mainte It has been decided, that under this section the Court of Chancery has jurisdiction to direct the dividends of stock belonging to an infant to be paid to the father for its main tenance. In re Naish (h), a small sum of stock bequeathed to an infant, was standing in the names of the infant and a trustee who was dead. After the death of the trustee the father presented his petition under the above act, praying that the dividends might be paid to him for the maintenance of the infant. Sir L. Shadwell, V. C., expressed some doubt whether the act authorized the Court to make the order, unless a guardían were previously appointed, observing as to that there would be a difficulty, the father being alive. His Honor thought it a question whether the section applied to the case before him, but on a subsequent day made the order as prayed; a decision certainly in conformity with the spirit and intention of the section, if not strictly within its letter. SECT. IX. From what time interest on legacies allowed as maintenance. With respect to the time from which maintenance will be nance allowed. allowed, the practice of the Court of Chancery appears to have fluctuated. In Hughes v. Hughes, we have seen that Lord Thurlow ordered maintenance from the time of the report. In Andrews v. Partington, from his judgment, as stated in 2 Cox's (h) 9 Law Journ. Rep. (Eq.), 252, N. S. nance allowed. Ch. Ca. 223, his Lordship held the same opinion; observing, From what that it was a very proper rule of the Court never to make a father time mainteany allowance with retrospect to what he has paid, without the authority of the Court. The cases of Fendall v. Nash, and Billingsley v. Critchet, before stated, are however instances of a different course adopted by the Court previously to Lord Thurlow's decisions. His Lordship seems to have altered his opinion subsequently (i): and, by degrees, as appears from several of the preceding cases, the rule was varied, and it is now settled, that each case must be governed by its own peculiar circumstances; and that the Court will exercise its discretion, so as to meet the exigencies of the case before it, unfettered by any strict technical rule. To the case of Collis v. Blackburn, before stated (k), we shall add the following, as illustrating the present practice of the Court. In Sisson v. Shaw (1), Thomas Steele bequeathed 1,0001. stock, and the dividends to accrue thereon, to his two great nieces, Elizabeth Sisson and Mary Sisson, equally, to be transferred and paid to them at twenty-one; but if either or both of his said nieces should die before that age, then the testator bequeathed the share of her or them so dying, to her or their respective daughter or daughters living at her or their respective decease, equally between them; but in case she or they should not have any such daughter living at her or their decease, then to her or their son or sons who should be living at her or their decease; and in case either of his said nieces should die without leaving any child living at her death, then her share was to survive to the surviving niece and her issue as her original share: and the testator directed his executors, during the minorities of the respective legatees, to apply the dividends, or a competent part thereof, towards the maintenance, education, and support of his said legatees respectively, during their respective minorities; and the surplus, if any, was to accumulate for the benefit of the respective legatees, until they should become entitled to their respective shares; and the testator also gave his executors a power of advancement for the benefit of the legatees. Elizabeth Sisson survived the testator but died under twenty-one, in June, 1788. She and her sister were maintained by the executors from the time of the testator's death in 1788 (m). Upon the bill filed by the surviving great (i) 3 Ves. 733. (m) Newman v. Bateson, 3 Swan. App. 689, supra, 1267; Dowling v. Tyrell, 2 Rus. & M. 343. |