
    Matter of the Estate of Mary A. Connolly, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      December, 1914.)
    Guardians—Duties of—When Objection by Special Guardian Upon ■Accounting Overruled.
    Where the general guardian- of an infant to save its mother from a pauper’s grave paid her funeral expenses, sixty-seven dollars and fifty cents, out of the infant’s estate, an objection thereto made by the special guardian upon the accounting of the general guardian will be overruled.
    Objection of special guardian to the payment of certain moneys by a general guardian.
    John Patrick Walsh, for petitioner.
    Leonidas Dennis, for United States Fidelity and Guaranty Company.
    Andrew S. Hamersley, special guardian.
   Fowler, S.

The general guardian of the child paid the burial expenses of the child’s mother, sixty-seven dollars and fifty cents, to save her1 from a pauper’s grave. Objection is made to the payment by the child’s special guardian. My first impression was that the objection must he sustained, but on reflection I was not so clear, and I have re-examined the point for myself, not having been helped by reference to any authority or principle on the argument. It seemed to me that it would be a scandal in the law if a child with an estate was not morally obligated under the circumstances. I find that Judge Peeve, as I supposed, in his excellent old book on “Domestic Delations,” now a classic in our country, states generally that it is the duty of children who are able so to do t-o support indigent parents. He places the liability, however, on the basis of the Statute of 43 Elizabeth, generally re-enacted in America. I find that 43 Elizabeth was expressly re-enacted in New York with enlargements (1 K. & R. 566, § 21; 1 R. S. of 1813, § 21; 1 R. S. 614), similar to the Connecticut law, which seems to have been founded on a most excellent equity. The statute, tucked away in a composite section of a later act, appears, I fear, inadvertently to have been repealed and not re-enacted. Laws of 1886, chap. 593; Consolidated Laws, table of laws repealed. But does it make any real difference in this case whether1 the liability of an infant is recognized in law or only in equity ? It is a recognized principle of equity that the chancellor .or the master of the rolls would make some allowance out of an infant’s estate where the infant’s family was indigent or in poor circumstances. (Harvey v. Harvey, 2 P. Wms. 22; Lanoy v. Duke of Athol, 2 Atk. 447; Petre v. Petre, 3 id. 511; Ex parte Petre, 7 Ves. Jr. 403.) Lord Eldon stated, I think, the real principle in Wellesley v. Duke of Beaufort (2 Russ. 28). I find that Lord Langdale, M. R., made an allowance out of infant’s estate for the support of parents, and in Heysham v. Heysham (1 Cox, 179), an allowance was made out of the infant’s estate for the support of the mother. Equity would even allow to an infant a sum to enable him to maintain his father’s bastard. (Bradshaw v. Bradshaw, 1 J. & W. 627.) It certainly was the slenderest of all possible moral obligations that a lawful child should be so bound for his father’s obligation. But it was a dictate of kindness, and equity is always kind as well as just. Thus it is apparent that equity will generally take into consideration not only the infant’s legal obligations, but his moral obligations as well, to his needy parents. How could it be otherwise in a refined system of jurisprudence in a civilized country ? If an infant possessed of an estate is under moral obligations in equity to support his indigent parents, how much more then would it seem that he is under obligations to give to them the last of all earthly offices and obligations, a decent burial. If the infant is under such moral obligation, is the guardian, who is only the person sui juris of the infant, under opposed and different obligations % I doubt it. In any event I should be ashamed in this instance to sustain the objection to the payment of the trifling burial expense of the infant’s mother out of her child’s estate. The objection will be overruled.

Objection overruled.  