
    Rice v. Tonnele and others.
    March 23, 24 ;
    April 15, 1847.
    The court of chancery, on a petition will grant maintenance to an itifant, out of his estate subject to the control of the court ; but if a receiver be necessary to effect the object, it will not be directed except upon a bill filed.
    An infant, entitled under the will of her grandfather to an annuity; and if the will were invalid, entitled as his heir to one-fourth of a very large estate ; the probate and validity of the will being contested, and an active litigation pending thereon; and she, in the meantime, requiring maintenance ; filed a bill, praying that the same might be furnished out of the estate, and for a receiver to that end. Held, that the bill Was properly filed, and that maintenance should be allowed to her, not exceeding the annuity.
    In such a suit, all the persons named in the Will as executors or trustees, are necessary parties.
    The bill was filed December 31, 1846, by Rebecca T. Rice, an infant under six years of age, by Gilbert C. Rice, her father and next friend. It set forth that John Tonnele of the city of New York, the maternal grandfather of the complainant, died August 20,1846, leaving an estate, real and personal, worth from, three to four hundred thousand dollars. That he left a widow, two children, and three grandchildren by deceased children, his only heirs at law; the complainant as the sole issue of one of the deceased children, being entitled as heir at law and next of kin, to one-fourth of his estate, subject to the widow’s rights therein. That the decedent left a will or instrument purporting to be a will, by which he devised and gave the whole of his property, with some unimportant exceptions, to his executors in trust, and to be applied and distributed by them as directed in the will. Among the provisions in that behalf, was one directing the trustees out of the income of his estate, to apply five hundred dollars per annum, or so much thereof as they might deem necessary and proper, to the education and support of the complainant, and to accumulate the surplus, if any, for her use and benefit during her minority; and on her attaining the age of twenty-one years, to pay over to her the accumulations, and thereafter to pay her the annuity, during the life of the testator’s widow. On the death of the widow, instead of the annuity, the complainant was to have for her life, the income of a large amount of real estate; the surplus beyond her education and support during minority, to be accumulated, and the entire product paid to her when of full age, and after that period, she was to receive the whole income. Upon her death, the real estate was to vest in her issue; and if she left none, it was devised over to other issue of the testator.
    The executors named in the will, were the testator’s son, John Tonnele, Junior, his son-in-law Valentine G. Hall, and Francis E. Berger, William Penfold and George Hall. This will was dated October 22, 1844. It was propounded for probate before the surrogate, by V. G. Hall and his wife, and witnesses had been examined to prove its execution. The probate of the will was opposed by John Tonnele, Jr., one of the heirs, and witnesses had been produced and examined by him, to prove that the execution of the will was procured by undue influence. Other objections had also been taken to its validity as a will.
    The bill stated that the probate was still pending before the surrogate; and in the mean time the rents and profits of the testator’s real estate had been, and were collected by F. Blanchet, his old agent, by consent apparently, of all the adult parties in interest, for the benefit of those really entitled. That the complainant is in want of the means of support, her father being unable to provide for her support and education. That as she is advised, she is entitled to a provision for her education and support, to the extent of the five hundred dollars a year, whether the will be valid or void, and the whole sum is necessary for that purpose. Her father has made ineffectual efforts to obtain such allowance for her from the estate. The bill prayed that a receiver might be appointed of so much of the estate as might be necessary to effectuate the objects of the bill, with directions to pay over to the complainant’s father the allowance of five hundred dollars a year, or so much as to the court should seem meet, for her proper maintenance and education. The bill also prayed for general relief. The parties defendant in the bill, were the heirs, devisees, and next of kin of the testator.
    The complainant moved for a receiver. The motion was opposed on various grounds, and among others it was alleged that her father was able and ought to support her pending the litigation.
    J. P. Crosby and B. F. Butler, for the complainant,
    in reference to the jurisdiction, cited 1 J. Ch. R. 57; 4 ibid. 100; 15 Ves. 445 ; 1 Bland’s Ch. R. 297; 1 Atk. 489 ; Macpherson on Inf. 105, 213 to 216. As to the father’s means and circumstances, 1 Ves. Sen. 160 ; 1 Cox Ch. C. 179; 1 Jac. and W. 647; 6 John. 566; Macpherson on Inf. 220.
    
      E. Sandford and G. Clark, for the defendants,
    Hall and wife, insisted that the bill was unprecedented and unnessary. If the will be invalid, the father as guardian in socage, or a guardian appointed by the surrogate, can lease the complainants inheritance. (1 R. S. 718, § 5 ; 2 ibid. 151, § 5.) If the will be valid, the estate is in the trustees, and this bill is not exhibited against them. The counsel cited 1 Atk. 489, 578 ; 2 Bro. P. C. 539; 9 Mod. 40 ; 2 Eq. Cas. Abr. 468, pl. 16; 3 Bro. C. C. 88, and 500; 1 Sch. & Lef. 106; 1 Jac. & W. 151 ; 4 J. C. R. 100; Bing, on Inf. 148.
   The Vice-Chancellor.

It is settled in England, after much discussion, that the court of chancery will grant maintenance to an infant, out of his estate subject to the control of the court, upon a petition, without any suit pending or instituted. But a receiver for that purpose will not be directed, except upon a bill filed. (Ex parte Mountfort, 15 Ves. 445 ; Ex parte Myerscough, 1 J. & W. 151; 3 Dan. Ch. Pr. 422.)

In this case, a mere order for support, which is all that a petition would effect, would not improve the infant’s condition. In truth, she needs no adjudication on that point, because if the will be established, she is confessedly entitled to a maintenance by the will, (not exceeding $500 a year during the life of her grandmother ;) and if the will be set aside, she is the absolute owner of one fourth of the estate, subject to the rights of the widow of the decedent. Her difficulty is, that the will is contested ; the litigation has continued for six or eight months, and it may be protracted by appeals for a long period, and in the mean time she receives from the estate no support whatever.

The question therefore is, can she maintain a bill for her support, under such circumstances?

It is objected, first, that her bill proceeds on the ground of an intestacy, in which event she is a tenant in common, seised of the real estate, and having a legal right to her share of the rents, which either her general guardian, or her father as guardian in socage, may receive. The answer to this is, that neither the infant nor her guardian, have actual possession of any of the real estate ; and she cannot recover her undivided share, without going through the controversy arising upon the will by which it is vested in trustees. In this aspect of the case, Lowndes v. Haddington, decided by Lord Eldon in 1805, is an authority for directing a receiver of her share of the rents, and requiring the persons in possession to pay such share to the receiver.

Then, in the other aspect of the case ; the trusts of the will, if that be assumed valid, effectually bar her and her guardian from meddling with any part of the property.

While the will is in contestation before the surrogate, the trustees cannot be compelled to act under it; nor is this court to compel the infant, when her interest is so plainly the other way, to acquiesce in the will without probate, and apply under its provisions for her support.

The result is this. The complainant is entitled in any event, to the support she seeks by the bill. A petition will not relieve her, because her interest in the estate, whether it be legal on an intestacy, or equitable under the will, is not in such a custody as the court can affect it by an order or a petition. She cannot assert her alleged legal rights, because of the outstanding unestablished will; she ought not to be driven to acquiesce in the will before probate; and were it her interest to assent, there is as yet no trustee whom the court can compel to pay according to the will. No other mode for her relief appears to be practicable, and I think a bill for the purpose ought to be entertained.

I think however, that all the persons named as executors, and trustees in the will, should be parties; inasmuch as the order for her relief, will necessarily affect property which is vested in them, if the will be valid.

An order may be entered allowing such an amendment, and thereupon referring it to a master to ascertain what sum annually from the testator’s death ought to be allowed to the infant, (not exceeding $500 during Mrs. Tonnele’s life time,) for her support and education. The order will provide that unless an amicable arrangement shall be made for the payment of the sum thus fixed, a receiver is to he appointed, to whom a sufficient amount of rents and profits to meet such payment and the receiver’s charges, (not exceeding however one fourth' of the net income of the real estate,) shall be paid quarterly by the persons in possession.

If .any relative of the infant think it .proper to contest the father’s right to have the custody of the complainant and to receive and disburse the provision thus made for her support, or his fitness for those duties; the master will be directed to inquire into and ascertain whether the father should be thus entrusted, and if not, then to nominate some person to act as her guardian.  