Dishman v. Mills's G'd'n

Court of Appeals of Kentucky

Dishman v. Mills's G'd'n

9 Ky. Op. 57, 1876 Ky. LEXIS 317

DecidedApril 5, 1876

StatusPublished

This text of 9 Ky. Op. 57 (Dishman v. Mills's G'd'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dishman v. Mills's G'd'n, 9 Ky. Op. 57, 1876 Ky. LEXIS 317 (Ky. Ct. App. 1876).

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Opinion

Opinion by

Judge Peters :

At the time of the death of the father of Benjamin Mills he had no, estate whatever, according to the averments of the petition; he was then not three years old, and was with his mother. It was the duty of the mother after the death of his father to provide for and maintain her own offspring as well as she was able to do, and having done so, she cannot be permitted to take the whole or any part of the principal of the estate of her son, which may have come to him after-wards, to remunerate her 'or performing that which was her natural duty to perform, and what it may be assumed it was her pleasure to do. i Blackstone’s Com. 448.

It is conceded that after the infant’s mother married Dishman, he was under no legal obligation to support him, and if the step-father out of his own means supported and contributed to the education of the infant, Benjamin Mills, he would be entitled to remuneration out .of the annual income or profits of the infant’s estate; but he would not he allowed in his expenditures to exceed the income.

As the mother was not entitled h> any compensation for what she did and contributed prior to her marriage, she was improperly joined as plaintiff; and if the step-father has a just claim for the maintenance and education of appellee, Benjamin, he can assert it in an ac[58]*58tion in his own name, and the judgment in this case will be no bar to his doing so. The judgment is, therefore, affirmed.

Belden & Shuck, for appellants. Harrison & Knott, for appellees.

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Opinion by

Judge Peters :

At the time of the death of the father of Benjamin Mills he had no, estate whatever, according to the averments of the petition; he was then not three years old, and was with his mother. It was the duty of the mother after the death of his father to provide for and maintain her own offspring as well as she was able to do, and having done so, she cannot be permitted to take the whole or any part of the principal of the estate of her son, which may have come to him after-wards, to remunerate her 'or performing that which was her natural duty to perform, and what it may be assumed it was her pleasure to do. i Blackstone’s Com. 448.

It is conceded that after the infant’s mother married Dishman, he was under no legal obligation to support him, and if the step-father out of his own means supported and contributed to the education of the infant, Benjamin Mills, he would be entitled to remuneration out .of the annual income or profits of the infant’s estate; but he would not he allowed in his expenditures to exceed the income.

As the mother was not entitled h> any compensation for what she did and contributed prior to her marriage, she was improperly joined as plaintiff; and if the step-father has a just claim for the maintenance and education of appellee, Benjamin, he can assert it in an ac[58]*58tion in his own name, and the judgment in this case will be no bar to his doing so. The judgment is, therefore, affirmed.

Belden & Shuck, for appellants. Harrison & Knott, for appellees.

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Bluebook (online)

9 Ky. Op. 57, 1876 Ky. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dishman-v-millss-gdn-kyctapp-1876.