Hoffman, Adm'r of Owings, et al. vs. Cromwell, 6 G. & J. 144

Dorsey, J., delivered the opinion of the court. The first question we are called on to decide in this case is, whether the annuity provided by Samuel Owings, in his last will and testament, for the maintenance of his idiotic daughter Rebecca, and now in the Chancery court in virtue of a decree for the sale of the land, on which it was a charge, is to be jjaid over to the administrator of Rebecca, or to the person by whom during life she was maintained?

The entire annuity, in the opinion of the court, not being more than sufficient to discharge the claim for her maintenance, it is unnecessary for us to inquire, whether her administrator, had there been a surplus, would have been entitled to claim it. The solution of the first question mainly depends upon the true construction of that part of the testator’s will, by which the annuity is created. If it were a general bequest to Rebecca Owings; or if when received by her administrator, it would constitute a fund applicable to the payment of her debts generally, there cannot be a doubt of his right to receive it.

No principle of law being more conclusively settled as a general rule, than that a creditor, as such, cannot sue either at law or in equity the debtor of his deceased debtor. If this on the part of Cromwell be such a suit, it is clearly not sustainable.

The words of the will applicable to this subject are as follows; “to hold the same to him the said William Owings, his heirs and assigns forever, upon the express condition, he and they, or the person or persons to whom the estate devised to the said William Owings may eventually pass, maintain my daughter Rebecca, or pay sixty pounds current money a year for her maintenance during her natural life.” In the event of William Owingsov those claiming under him failing to maintain Rebecca, to whom is this provision for her maintenance to be paid ? The intention of the testator must solve this inquiry.

Was it to be paid to Rebecca ? Had such been the design of the testator, he would have used apt words to express it. Such could not have been his intention knowing as he did, that his unfortunate daughter from mental imbecility was incompetent to the management of the fund provided for her maintenance. The object of the devisor, was the application of the annuity to the comfort and maintenance of his daughter. That being accomplished, it was immaterial to him by whom the expenditure should be made. He designates no person for that purpose. What then is the natural justice and equity of the case?

What the common sense and fair

interpretation of the bequest? Why, that he who maintains Rebecca, is to receive the annuity provided for her maintenance. In the contemplation of a court of equity, this clause in the will is to be regarded in the same light, as if in so many terms it had ordered the annuity to be paid from time to time, to him by whom Rebecca should be maintained. Who upon the ordinary principles of human action, could the testator suppose would expend his time and money in the maintenance of this unhappy being, unless he were authorised to claim the fund provided for that purpose ?

It has been said, that such claim might well be made of her administrator. Can it be supposed for a moment, that such an idea entered the imagination of the testator? Was it his intention that this annual stipend should be withheld from him for whom it was designed, until it could be claimed of her administrator after the death of Rebecca Owings ? Who would have maintained her on such terms ? If then her maintainer was entitled to reimbursement out of this fund in the life-time of Rebecca, where was he to seek it? Whom could he sue to obtain it? The answer to these interrogatories is obvious.

He is the creditor of the fund, having a clear equitable lien upon it, which can be asserted only in a court of equity. The death of Rebecca works no change in his rights or his remedy. But it has been insisted, that the provision made by Deborah Owings, the mother of Rebecca, was intended as a substitute for that in the will of her deceased husband. There is nothing in the circumstances of the case, in the terms of the bequest, or in the nature and extent of the provision made, clearly indicating such to have been her intention.

On the contrary if we advert to the great inadequacy and contingent character of the fund provided by the mother, it is fair to presume that she designed it, not as the substitution of a new and adequate provision for her daughter’s maintenance, but as an auxiliary to the inadequate provision heretofore created by the father. We attach no weight to the eulogies bestowed on the father, nor to the alleged improbability that he should have left an insufficient provision for his afflicted child.

It was natural for him to suppose, nay, there is nothing improbable in the belief, that it may have been the express understanding between them, that the mother as well during her life as afterwards, should provide an additional fund for the maintenance of their daughter. The only remaining objection which has been urged against the decree of the Chancellor, is the unreasonableness of the amount which has been allowed for maintenance.

This cannot be regarded as an abstract question, dependent for its determination on any general rule or principle of law or equity, applicable to all cases where an allowance for maintenance is to bo adjusted, but rests on its own peculiar circumstances, as every ease of the kind must do.

We look to the condition in life of all the parties connected with the question, their standing in society, their pecuniary abilities, the amount of the fund provided for maintenance, the situation in which the person supported is placed, the character of the support designed and afforded, the habits and dispositions of the individual to be maintained. Having reference to all these considerations, we are of opinion, that the Chancellor was right in allowing to the complainant, the entire fund provided by both father and mother for the maintenance of Rebecca Owings.

Neither testator nor testatrix ever contemplated that any portion of it should remain unexpended for distribution among her representatives. DECREE AFFIRMED WITH COSTS.