Hyland v. Baxter

Barker, J.:

In this case, for'the purpose of disposing of the appeal we shall hold that, as a general proposition, a court of equity possesses the power to make an allowance for the past support and maintenance of infant children, having no general guardian, to the extent that the same was necessary to meet their absolute wants, and if such support and maintenance were supplied by an administrator out of funds in his hands held by him for distribution to such infants, the court may, in an appropriate case, direct a credit in his favor, on an accounting concerning the funds held by him in his representative capacity. The plaintiff’s case is founded on the truth of this proposition.

As we have reached the conclusion that the judgment in this case should be affirmed upon other grounds, we do not need to state the limits and qualifications of the proposition with particularity. All the cases bearing on this subject hold that the advancement must be made in entire good faith, and at such times and in such sums as the court would authorize a general guardian to do if one had been appointed and he had applied for and received permission before such disbursements were made; otherwise the act would not be ratified.

The referee has found that the sum of $1,207.98, so adjudged to be in the hands of George Hyland as such administrator, was paid by him in merchandise or money into the hands of the defendant Bridget Baxter, in her right as administratrix; that the larger portion of the money and property, so received by the said Bridget Baxter from the said George Hyland, was applied by the said Bridget Baxter towards the support.and maintenance of said Mary Ann Baxter, Bernard Baxter and Ella Baxter, the said infants, but in what amount and proportion to each cannot be ascertained, and that all such expenditures were made by the said Bridget Baxtér for and on account of said minors prior to June, 1869.

On reading the evidence upon which such findings are based, we find no room to doubt the correctness of the conclusions reached by the learned referee. The data is not given in the proofs from which any tribunal can say the particular sums which should be charged up against each infant. As this uncertainty and confusion comes from an unauthorized use of trust funds, the administrator and administratrix must be the sufferers if any one is harmed. (Hannahs v. Hannahs, 68 N. Y., 610.)

"We have viewed the case as if the deceased administrator was entitled to every allowance which could have been made to the mother if she had applied in her own behalf, for the relief now sought by the appellants. Ve have not permitted their case to be prejudiced or weakened in our minds by the defendants’ present attitude of hostility to the relief sought by the plaintiffs. It must be apparent to every experienced mind, that nothing like accuracy can be reached in any attempt to state an account between the infants and the administrators, concerning their past support'and maintenance.

The judgment is affirmed, with one bill costs in favor of the respondents.

Present — Smith, P. J., Hardin and Barker, JJ

Judgment affirmed, with costs.