
    Sarah Sanders vs. J. Rutland, Adm’r. of John T. Hall, deceased.
    "Where the father and mother of an infant, hut a few years old, died and left some property, but neither an executor nor any person to take care of their child, and a woman, who was poor, took the child and supported it for a year, and then administration was taken out upon the estate, the Court Held\ that the woman should recover for her expenses and trouble in taking care of, and maintaining the child ; and that her poverty rebutted the presumption of a gratuity, and that the humanity and policy of the law required that it should be paid*
    *ThIS was a summary process against the defendant as administrator of the estate of the father and mother of an infant, about five or six years old, which the puhiiijn, í. poor woman, had boarded and taken care of for a year.— There was no administration at the time the cljild was taken. There was no relation or other friend on whom it particularly devolved to take care of it. it further appeared that the child was entitled to a very good estate»
    The decree below was for defendant. A motion was now submitted to reverse that decree.
    
      Jd'Cord, for the plaintiff.
    Ail executor or administrator is liable for a duty which ought to be performed by the testator, were he alive. (Sailers vs. Lawrence, 'Whiles Rep. 421.J
    It is the duty of a parent to provide for the maintainance of his child. The administrator or executor is his representative. C Moses vs. MiFarlane, Buller, N. P. 130.)
    
    There are many cases where the law will imply an obligation to repay for property obtained by trespassers and felons. (Thomas vs. Whip, Bull. N. P. 130, &c.)
    
    But the law directly allows of acts of necessity being-performed, and satisfaction for such acts. As defraying expenses of funeral, advancing money to pay debts, providing necessaries for his children, &c. ( Toller, 40.) But these expenses must be suitable to the deceased’s estate and quality. (Off of Exec. 1T4. 3 Bacon, 22.)
    
    But all this does not make an executor de son tort; who is allowed all payments which & rightful executor is liable to pay. (2 Chanc. Rep. 33. 2 Jac. L. D. 508.) Much more ought she to be allowed if, who commits no tort.
    
   Mr. Justice Huger

delivered the opinion of the Court.

Infants are responsible for necessaries, and miserable would be their situation, if it were not so. In this case, prior to administration, there was no legal representative of the intestate’s property. There was no person on whom it particularly devolved to take charge of the infant. If its property were not responsible for its necessaries, it might have starved, though entitled to an abundance. For saving the child from want and starvation, the plaintifi ought not to suffer. Her poverty rebuts the presumption of á gratuity; and the humanity and policy of the law are on the side of the plaintiff.

Glover, for the motion.

MGord and Footman, contra.

This case has been brought within the equitable juris» diction of the Court, where the usual forms of proceeding are dispensed with; the motion must therefore prevail, and a new trial be ordered.

Justices Johnson ánd N'oti, concurred.

Mr. Justice Richardson, dissented.  