Opinion
Argued October 14, 1889
Decided November 1, 1889
Elon R. Brown for appellant.
Kilby Kellogg for respondent.
It is well settled that where parties sustain the relation of parent and child, either by nature or adoption, the former in the absence of an express promise cannot be required to pay for services rendered by the child, nor the latter be obliged to pay for maintenance. No case has been cited to the contrary, but the learned counsel for the appellant while conceding that "such is undoubtedly the rule of law," contends that a different doctrine should prevail in a court having in respect to matters of this sort a somewhat larger jurisdiction, and that the surrogate erred in not disposing of the question upon equitable principles. He might have done so had a case been made for such relief ( Voessing v. Voessing, 4 Redf. 364; Hyland v. Baxter, 98 N.Y. 610), but we find nothing in the record which required his interference. It seems that the guardian took the infant into his family with the avowed intention of rendering care and maintenance gratuitously. He made no charge at any time, and knowing that pension moneys would be coming to the child, agreed that they should be paid over to him when of age, with interest. The account actually presented by the guardian to the surrogate, credits the ward with these moneys to the amount of $576.57, credits him also with services rendered after the year 1875 in the sum of $250, but makes the charge for maintenance and care absorb both items and claims as due from the ward a balance of $665.80. All this is contrary to the agreement on which he was permitted to take the child and inconsistent with his conduct afterwards.
He not only treated the child as a member of his family and assumed the character of parent, but taught the child to call him "father," his wife, "mother," and told the neighbors that he had adopted him, and that the child would be his heir. The account now presented is at variance with these relations; and in the absence of evidence that the support furnished exceeded the ordinary necessaries supplied in a farmer's family, there was nothing to call for any allowance, and, moreover, the case actually made would have justified a finding that the boy's services were of such importance as to furnish a full compensation for his support. Such a finding was not necessary, for, under the circumstances, the guardian by his act and his design stood in the place of a parent, and the case forms no exception to the general rule that where that relation exists no charge should be made for services on one hand, nor for board and maintenance on the other.
We agree, therefore, with the Supreme Court, and its judgment should be affirmed.
All concur.
Judgment affirmed.