
    In the Matter of Mary R. and Margaret J. Burke, Infants.
    June 12th, 1847.
    The court of chancery in applying the income of infants, endeavors to promote their permanent interest, welfare, and happiness ; rather than to accumulate a surplus.
    When their income is beyond their absolute wants, and their fortunes large, provision should be made for their having a home with their father, instead of their living at boarding schools ; although a much greater expense be incurred for the former.
    The father and guardian of two daughters, one thirteen and the other eleven, was unable to keep bouse within his own means with the addition of a board charge for his children. Their joint income was nearly $4000, a year; the fortune of the one at full age would be nearly $60,000, and of the other $30,000. Their necessary annual expenses, being at board, would not exceed $1000, to $1200, a year. The court with a view to provide them a home with their father, allowed to him $2500, a year, out of their income, for the support and education of both, including compensation for his charges as guardian.
    Exceptions to the report of a master, on the allowance proper to be made to Michael Burke, the father and general guardian of Mary R. and Margaret J. Burke, infants, of the ages of about thirteen and eleven respectively. The principal facts involved, were as follows : The mother of the •infants, Catharine A. Burke, was the daughter of James I. Roosevelt, now deceased. By his will, Mr. Roosevelt gave property of the value of sixty thousand dollars, in trust, that the income be paid to her for life, as a separate estate, and upon her death to her children, and the capital was to vest in her children. But if either of the latter should die before becoming of age, the share of such child would then vest in the survivor, and if all should die under age, the capital was to vest in the brothers of Mrs. B. and their issue. The property was almost entirely productive real estate in the city of New York. Besides this provision, Mr. Roosevelt, in his life time, gave to his daughter a house in Greenwich st., in which she resided, and he furnished the house. (On a question arising as to the title of this house, subsequent to Mrs. B’s death, it was decided by assistant vice-chancellor Robertson, in the spring of 1847, to belong to her two children, But an appeal had been entered from this decree.)
    Mrs. Burke enjoyed the income of the property so devised in trust, until her death on the 12th day of February 1844. She left only two children, the infants before named. Mr. Burke was immediately appointed the general guardian of his infant children, and as such took the personal charge of the renting of their estates. On his petition, the late vice-chancellor on the 20th day of May, 1844, referred it to a master, to ascertain and report what annual allowance should be made to him for the support, maintenance, and education of bis two daughters, out of the income of their property, and to be in full of his charges and commissions. On the first of June 1844, the master reported that $3500, a year, was a reasonable allowance to Mr. Burke in that behalf, and that it was less than the net income. The master’s report was confirmed, and an order made by the vice-chancellor, directing the payment of the sum reported. The father continued to receive the annual allowance to the time of the application next mentioned.
    In April 1845, Mr. Burke married a second wife, and resumed housekeeping. In February 1846, on the petition of some of the maternal relatives of the two infants, suggesting that the annual allowance to their father was extravagant, the late vice-chancellor made an order referring it to a master again, to inquire and report what annual sum should be paid to Mr. Burke. A long inquiry ensued before the master. It was shown on the part of the relatives, that Mr. Burke received on insurances of his first wife’s life, $25,000; that the two daughters were kept by him at a female boarding school or nunnery at Astoria, called “ The Sisters of the Sacred Heart,” at an expense of some $300, a year each, as alleged; and it was insisted, that Burke was of sufficient ability and bound to support his children without resorting to their own income at all; and more especially, that the allowance made by the order of June, 1844, was altogether unreasonable, and extravagant. On the part of Mr. Burke, it was shown that he had to pay some debts out of the life insurance money; that his own income was no more than sufficient for the support of himself and wife, and totally inadequate to maintain his whole family in a respectable style, and one in accordance with his daughters standing and expectations in life. That he was giving them as perfect and accomplished an education as the country would afford. That they came home once a week, and it was his practice to visit and ride out with them weekly. That his actual expenditures for their education, support, apparel and carriage hire, in one year, were $1561. That by the will of her grandmother, his eldest daughter on becoming of age, would receive from $25,000 to $30,000, in addition to the provisions made for her in the will of her grandfather.
    A great mass of testimony was taken, from which it appeared that such children could be educated and fully maintained at some of the best female boarding schools in the city, at from $250 to $400 a year for each,
    The master reported that $1500 a year, commencing from the death of Mrs. Burke, in February, 1844, was a reasonable and sufficient allowance to the father, for their support and education, including compensation for his own services.
    The relatives excepted to the report, as allowing too much, but withdrew their exception before the argument. Burke took two exceptions to the report, in the one claiming a continued allowance of $3500, and in the other, that it should be at that rate for the time already elapsed.
    
      E. Sandford and C. O’Conor, for M. Burke, the father and guardian.
    (The counsel cited 1 Bro. C. C. 387, note; 1 ibid. 164; 5 Ves. 194; 1 Jac. & W. 627; 1 Beavan, 301; 1 Molloy, 210; Taml. 22; 1 Russ. & M. 223, 575; Cooper’s R. 22; 10 Ves. 45 ; 2 Story’s Eq. Jur. §§ 1354, 1355.)
    
      S. W. Roosevelt, for the relatives,
   The Tice-Chancellor

said, the court in cases like this, endeavors to pursue the course which is best calculated to promote the permanent interest, welfare and happiness, of the children xvho come under its care. And these are not always promoted by a rigid economy in the application of their income, regardless of the habits and associations of their period of minority. These two children have a joint income of between $3500 and $4000 a year. One of them, when she attains the age of twenty-one years, will be worth $30,000, irrespective of the intermediate income, the other, from $55,000 to $60,000. Their father’s resources are very moderate, and not beyond the reasonable support of the residue of his family. It is undoubtedly true, that these children might be kept in very good boarding schools, upon the amount reported by the master, and, indeed, upon a much less sum; and the surplus of their income could thus be added to their respective fortunes.

I think, however, that young ladies with such prospects, ought to have a home suitable to their condition in life, where they may be placed as far as possible beyond the designs of sharpers and adventurers, to which they will be peculiarly exposed, if brought up in schools, without the benefit of parental advice and influence. Unless this father be allowed something more than his income, and a mere remuneration for their board and lodging, he will be unable to keep up an establishment such as they should be reared in, to prepare and qualify them for their proper future station in life. The happiness and due education of these children, will be altogether better provided for by furnishing to their father a liberal allowance, so that they may be properly maintained at home, under the watchful care and healthful influences of the parental roof, with its social advantages; instead of their spending their youth in female seminaries, secluded from friendly intercourse, and from intelligent knowledge of the world.

I feel warranted in allowing to the father $2500 a year, for the support and education of both, commencing in February, 1846, and including in that sum full compensation for all his charges as guardian. There is no good reason for going back of that period, and interfering with the allowance which he had received and expended before the relatives applied for its reduction. The costs and counsel fees of both parties, must be paid out of the income of the estate.  