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Marsh v. Scott

Decided: January 7, 1949.

THEODORE MCCURDY MARSH, ET AL., & C. PLAINTIFFS,
v.
JOHN SCOTT AND MICHAEL LOVERIDGE SCOTT, DEFENDANTS



Civil action.

Freund, J.s.c.

Freund

John Wilson Scott, also known as Loveridge Patton Haffner, was on September 1, 1943 adjudicated by the District Court of the United States for the District of Columbia to be of unsound mind and is confined in St. Elizabeth's Hospital, Washington, D.C. His mother, Marion L. Haffner, a resident of New Jersey, died testate and her will was probated in Essex County. Under its terms, her son, who evidently was competent when the will was executed, is a beneficiary under a trust, being entitled to income for life, and, upon his death, the residue is payable to his heirs. John Wilson Scott was married, but his wife obtained a divorce in Wyoming in 1940. A son born of the marriage, Michael Loveridge Scott, now about 12 years of age, resides with his mother in California. She had worked to support herself and her child, but is now alleged to be indigent and has incurred obligations for the support and health of her son. She has applied to the trustees of the trust estate for utilization of part of the income for the support and maintenance of the child.

The trustees have filed the complaint in this cause, alleging the foregoing facts. They also allege that they are using the income for the care of the incompetent; that they now have an accumulation of surplus income of about $750; that they reasonably expect that future income will be more than necessary for the support of the incompetent; that they recognize the obligation of the incompetent to support his son and are willing to use the funds for that purpose, but are in doubt of their right to do so; and pray for instructions. The evidence establishes that as of December 31, 1947, the balance of corpus in the trust fund was $30,519.37 and the balance of income, $1,645.

The support of a child is the father's first duty. That duty is continuous. Royce v. Royce , 124 N.J. Eq. 469 (E. & A. 1938). In Osborn v. Allen , 26 N.J. Law 388 (Sup. Ct. 1857),

the court said: "The duties of parents to their children, by law of nature, rests equally upon both. It is the duty alike of each parent to maintain, protect and educate their children. * * * In regard to the maintenance of children, the only obligation expressly imposed by law, that of maintaining poor children not able to work, rests alike upon both parents. Nix. Dig. 614, Sec. 26, 1 Bla. Comm. 448. There is, however, this distinction recognized by the authorities between the obligation of the father and that of the mother to maintain their infant children, viz., that the father is bound to maintain his children during their minority, though the children have ample property for their support, while no such obligation rests upon the mother."

In In re Ganey , 93 N.J. Eq. 389 (Ch. 1922), affirmed 94 N.J. Eq. 502 (E. & A. 1922), the court said: "Both parents being alive, it is the duty of the father to support and maintain the minor child, and upon his death that duty devolves upon the mother (Osborn v. Allen , 26 N.J.L. 388; Alling v. Alling , 52 N.J. Eq. 92), but this court has no jurisdiction to compel a parent to support an infant child. Alling v. Alling, supra. Neither parent is legally compellable to perform such duty, except in the manner pointed out by the statute." R.S. 2:204-1 et seq.

This duty does not depend on the mental competency of the parents; though, of course, it may not be enforceable against the person of an incompetent parent. A Court of Chancery will protect and safeguard the rights of both incompetents and infants.

Two statutes enacted by the Legislature pertaining to mental incompetents have relevancy here, viz.:

" R.S. 3:21-4. Order fixing expenditure, &c.

"The guardian, spouse, or a child or any person on behalf of a child of a resident or nonresident mental incompetent, may apply to the Court of Chancery * * * by verified petition * * * for an order directing the amount the guardian may expend yearly for the support and maintenance of the mental incompetent, his household, family, spouse, child or children, out of his personal estate, and the income thereof * * * or ...


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