
    * Jane Whipple versus Levi Dow & Ux.
    A widow, having an infant daughter, possessed in her own right of property sufficient for her support, is not compellable to maintain her, but may have an action against the daughter, when she comes of age, for her board.
    Assumpsit for board, washing, and lodging, furnished the defendant’s wife, from May 1, 1793, to June 1, 1797, she being then sole. This was a review of an action, wherein the plaintiff recovered at the Court of Common Pleas, January term, 1805, the sum of 273 dollars. Upon trial of the review at the last November term, before Parker, J., she recovered 254 dollars 60 cents.
    It appeared in evidence that the said Catherine, the now wife of the defendant, during the term aforesaid was an infant, and daughter of the plaintiff. On the death of-Whipple, the husband of the plaintiff, and father of the said Catherine, the dwelling-house of the deceased, which was all the property he possessed at his death, descended to the said Catherine and two sisters, subject to the plaintiff’s dower, which was not claimed by or assigned to her. The plaintiff" continued to occupy the house after the death of her husband, and supplied it with necessaries for herself and daughters, the latter working abroad, and receiving the proceeds of their labor tc their own use ; there being an understanding and agreement between the mother and daughters, that she should occupy the house without rent, and that they should board and lodge with her, without paying any thing therefor. During all this time, Catherine was under age, and worked at a duck manufactory, or at the business of a mantuamaker, which she had learned, receiving the whole of her earnings to her own use, being boarded by her mother, and urnishing herself with her wearing apparel. Of these earnings she had saved 100 dollars, which her husband received from her on their intermarriage.
    After the marriage of the defendants, Dow summoned the mother 1 efore the Probate Court, to account for the proportion of the rent of the house which belonged to his wife, and she was held to pay, and did pay, the same; after which she brought this action to recover payment for the board of her daughter Catherine. The other daughters had abided by the agreement, that the rent should be set off against their board.
    [ *416 ] *Upon this evidence, the judge charged the jury that the obligation of the parent to support the child depended on the ability of the parent so to do, and that the earnings of the child, while so supported, belonged to the parent; that if the jury believed there was an agreement and understanding, in this family, that the mother should have the use and occupation of the estate, she boarding the children, and suffering them to take the earnings of their labor to their own use,—and if they found that either of them had taken away the equivalent, — a promise in law existed against the one so doing, to pay for her board; that the defendant’s wife being a minor at the time made no difference, as the demand was for necessaries; that as the defendants, upon their intermarriage, had demanded and received of the plaintiff the rent of the wife’s share in the house, which was the equivalent for her board, and as the husband had also received the savings of her labor during the time, the original promise in law, to pay for her board, continued, or was revived.
    To this charge of the judge, the counsel for the defendant ten dered exceptions, pursuant to the statute ; but the judge, not considering them correctly stated, did not sign them, but reserved the ca=e for the opinion of the Court, upon a motion for a new trial.
    And now Dexter,
    
    in support of the motion, insisted that, the mother being under legal as well as natural obligation to support her minor children, no implied promise of the daughter to pay for her board could be raised. There was nothing in the case which showed any express contract on the part of the daughter, and there could be no promise implied, if, at the time of the transaction, the mother had no intention of demanding, and the daughter no expectation of making payment. If this is true between strangers, the case is stronger between a parent and child. If in this case the plaintiff has done more than in her circumstances she could afford to do, still this will not be a foundation for a lega, demand. If necessaries are furnished to a minor, without an intention of making a charge of them at the time, no subsequent transactions can :.ave a retrospective effect, so as to support an action on an implied promise. *If this was not a legal demand against [ *417 ] the daughter at the time of her marriage, nothing that she could do since the marriage could make it such. There is nothing to show that the husband, at the time of his marriage, knew any thing of this demand. He found her possessed of money, the proceeds of her own labors, and of a portion of real estate as heir to her father. Finding that no account had been rendered of the rent of the estate which had accrued to his wife before marriage, he applied to the Probate Court for its aid ; and the plaintiff ought then to have set up this agreement in opposition to that demand. Having omitted to do so, there is a fair presumption, either that she never relied upon it, or that she had waived it. In the case of Cooper vs. Martin, 
       the opinion of the Court was founded on an express promise made after the minor came of age, whence it may be inferred that, without such promise, she would not have been liable to an action.
    
      Jackson, e contra.
    
    By the English law,  no person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident. But the party in the case before the Court was far from impotent. She labored, and laid up money from her labors.
    It is true that, by a statute  of this government, certain of the kindred of a pauper applying to the town for support, if of sufficient ability, may, by a process prescribed in the act, be compelled to support such pauper, or, in other words, to save the town harmless ; but this provision extends only to such paupers as are unable to support themselves.
    The plaintiff in this action was, then, under no more legal obligation to provide a support for this minor than a mere stranger would have been. Suppose a stranger takes an infant and supports and educates her, under an agreement that she shall serve two years after coming of age — when.of age she refuses to serve; can it be doubted that the stranger would have his action for the support and education ?
    * There is nothing in this case to show that the mother [ * 418 ] ever intended the board of her child ás a gratuity.
    
      There was an express agreement that she should be paid for it, by the occupation of the child’s estate, left her by her father. That agreement, being afterwards avoided by the child, is as if it never had been made, and the mother’s right to compensation again attaches, as well by the law as by the plainest principles of equity and good conscience.
    
      
       4 East, R. 75
    
    
      
       February 26, 1794.
    
    
      
       1 Black. Comm. c. 16, p. 175.
    
   Parker, J.

I was of opinion, at the trial, that the mother was under no legal obligation to support her child ; that the agreement máde by these parties was reciprocal, and having been disaffirmed by the daughter after coming of age, the mother could, by no construction, be bound oy it; that the special contract thus failing, the law raised a new promise. I still remain of the same opinion, and am therefore against granting a new trial.

Sewall, J.

To this action, which is brought on the implied promise of a minor to pay for her support, furnished during infancy by her mother, a want of consideration is objected. A father has different rights, and is under different obligations, from a mother. A child whose father is dead may elect a guardian against the will of the mother. The facts in this case repel the idea that this support was ever considered, by either of the parties, as gratuitous; payment was claimed on one side, and assented to on the other. When the consideration of the special agreement failed, the implied promise revived. The direction of the judge appears to me to have been right; and the verdict being pursuant to it, I think there ought not to be a new trial.

Sedgwick, J.

If a mother support her child gratuitously, and

without any intention, at the time, of demanding a recompense, nothing is more clear than that she could not, upon a change of inclination, afterwards have an action therefor. But that is not the present case. Here was an agreement that the mother should occupy the child’s estate, and, in consideration thereof, should sup port the child. The agreement was well understood, [ *419 ] and they proceeded accordingly. But when *the child came of age, she demanded and received all that the mother had derived from the estate. The common principles of justice sh rw that the mother’s right to other compensation revived. The bare recital of facts shows a strong equity for the plaintiff", and precludes the necessity of any reasoning. The mother could not have been compelled to support a daughter who had an estate of her own adequate to the purpose. The special contract having been disaffirmed, the law raises a promise. Being very clear that the plaintiff' was entitled to a verdict, I am against a new trial.

Parsons, C. J.

The plaintiff" has brought her action upon an implied promise oí her daughter to pay for her support during her infancy, she having sufficient estate for her own support. I agree with my brethren that the mother was not compellable, in this case, to support her child, though I apprehend it would be otherwise in case of a father, The special agreement, being annulled by the daughter on her arriving at full age, is as if it had never been made. The implied promise may, then, be considered as having never been suspended.

Judgment according to verdict. 
      
      
         Vide Benson vs. Remington, ante, 113. — Dawes vs. Howard & Al 4 Mass. Rep. 97. — Badger vs. Phinney, 15 Mass. Rep. 359.
     