
    Commonwealth, of Pennsylvania v. Hecker.
    Submitted October 15,1923.
    
      Parent and child — Order of support — Act of June 25,1895, P. L. 269 — Evidence—Sufficiency.
    An order that the sons of an aged parent pay a certain ■weekly sum to the support of their mother is proper and will not be disturbed, where it appears that the sons are amply able to make the payments, and had already participated in the voluntary distribution of their mother’s estate.
    In such case, the fact that the mother had conveyed a certain property to a daughter, conditioned on her providing for her care and maintenance during her lifetime, cannot be used as a defense by the other children to evade their legal responsibilities.
    Appeals, Nos. 71 and 72, April T., 1924, by defendants, from judgment of Q. S. Mercer Co., Jan. Sessions, 1923, No. 30, directing an order of support in the case of Commonwealth of Pennsylvania v. W. C. Hecker, and Orie Hecker.
    Before Or-lady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
    Affirmed.
    Action under the provisions of the Act of June 25, 1895, P. L. 269, to compel the support of an aged parent. Before McLaughry, P. J.
    
      November 19, 1923:
    The facts are stated in the opinion of the Superior Court.
    The court made an order that the defendants should pay to their mother the sum of $3 a week, and give bond in the sum of $300 for the faithful performance of the order. Defendants appealed.
    
      Error assigned was the order of the court.
    
      J. A. Stranahan, of Stranahan & Sampson, and with him J. M. Hittle, for appellants.
    
      L. R. Richard, District Attorney, and with him R. M. Gilkey, for appellee.
   Opinion by

Keller, J.,

The court found upon sufficient evidence that Mrs. Mary A. Hecker, 65 years of age, the mother of these appellants is not of sufficient ability to maintain herself, and that the appellants are of sufficient ability to support her, besides caring for their own families; and ordered each of them to pay the sum of three dollars per week for her maintenance and support.

Defendants severally appeal from this order and set up as defense thereto the fact that in a conveyance of real estate from Mrs. Hecker to her daughter, Mrs. Carrie M. Stafford, made in 1914, the grantee covenanted to furnish her mother with board and maintenance, and provide and care for her, during her natural life.

It appears that on the death of her husband, in 1914, Mrs. Hecker made a gratuitous distribution of her own real estate among her three children. She gave a house and lot to each.of these appellants and conveyed to her daughter a larger dwelling, the home property, with a covenant in the deed to her daughter providing for her own care and maintenance as above mentioned; and since that time she has continuously lived with her daughter in the home thus conveyed to the latter. Subsequently, Mrs. Stafford’s husband left ber and at tbe time of tbe bearing, sbe was living with ber seven-year-old son and ber mother in tbe borne property, renting part of tbe bouse to tenants and endeavoring, but unsuccessfully, to support tbe family comfortably from tbe rent thus received and what sbe was able to earn at outside labor. Tbe court, in making tbe order against these appellants, stated tbat it took into consideration tbe fact that Mrs. Hecker was receiving some assistance from ber daughter.

Mrs. Hecker is not complaining that ber daughter is not fully complying with tbe covenant for ber support contained in said deed; sbe has recognized tbe changed conditions in ber daughter’s circumstances and is not demanding a strict compliance with its provisions. But, if sbe were, it could only be secured by legal proceedings instituted by ber, and in tbe meanwhile sbe must be supported for sbe is not physically able to maintain herself. Tbe covenant is not such that it should be enforced against Mrs. Hecker’s will, to tbe relief of these sons who have shared in tbe division of ber estate and are amply able to pay tbe meager sums they are called upon to contribute to ber support.

Tbe order is affirmed at tbe costs of tbe appellants..  