Although the obligation of a father to support his infant child, remains, notwithstanding the possession by the child of trust property applicable to her support; yet, where, upon the bankruptcy of the father, a trustee for an infant daughter, at the father's request, though without any promise of repayment, paid over to him from time to time, sums of money out of the income of her trust property, for her support and education, as he was authorized by the terms of his trust, in his discretion, to do, it was held, that no promise could be implied, under such circumstances, on the part of the father, upon a change of circumstances, to repay to the trustee the sums of money thus applied.
AMES, C.J.
The obligation of a father to support his minor child is undoubted, notwithstanding the possession by the child of property applicable to his support. Such an obligation is, however, from its very nature, limited by the ability of the father to perform it; and at all events, a court of equity will not allow an infant to suffer for food or education, when the father is a bankrupt, on account of the formal existence of such an obligation, whilst there is trust property of the child, available to supply it with both. In such cases, upon a proper application by the infant, through a next friend, it will, regarding solely the infant's good, and not giving a direct benefit to the father out of his child's income, ( In re Stables, 13 Eng. L. Eq. R. 61,) order what it deems a proper sum, to be applied by a trustee of the infant's property to the future maintenance of the infant, and will, under special circumstances, direct even the whole of a small legacy belonging to a child, to be paid to the father, to enable him to provide for its support. Carmichael v. Hughes, 6 Eng. L. Eq. R. 71; Walsh v. Walsh, 15 Ib. 249.
In the case at bar, the plaintiff, as trustee for the infant daughter of the defendant, under the will of Miss Helme, had vested in him by the testatrix, expressly, a discretion to expend for the support and education of the infant, the whole or any portion of the income of the trust estate given by the will, after payment therefrom of taxes, and the expenses of the trust. In the exercise of this discretion, the plaintiff very properly, upon the bankruptcy of the father, at his request, advanced or paid over to him from time to time, out of the income of the infant, sums of money, deemed by him to be adequate to this purpose. There is no pretence of any express promise on the part of the father to repay these sums, and the circumstances are not such as to raise an implied one. Considering the bankruptcy of the defendant, the trustee, in making this application of her surplus income, only performed a duty to the child which could have been enforced against him; and because the father, under such circumstances, reminded him of it, it can hardly be supposed that it was the intent or expectation of either, that the future acquired estate of the father was to be bound for repayment to the estate of his daughter. A portion of the daughter's income has, by the exercise of a power vested in the plaintiff as trustee, reached its proper destination under the circumstances, in being applied to her support and education; and we cannot make out of such an application, what the parties at the time never contemplated, a debt due from the father to the plaintiff as trustee, to come in competition with the just claims of the father's creditors to his newly-acquired and unexpected succession. Upon the statement submitted to us, judgment must be entered for the defendant.