Yates, J.
This cause comes before the court, on an appeal from the decretal order of the court of chancery, of the 16th of December, 1809, disallowing the report of the master, and directing a new reference, and that the master should totally omit and reject all allov/ance for «he maintenance and education of the respoadeatn»
[586]*586Two questions are presented here; 1. Whether as allowance for the maintenance and education of the respondents can be made for the time past ? and if so, 2. Whether a new reference was necessary,
It is, undoubtedly, the duty of parents to provide for their offspring, without creating an obligation on the part of the children to remunerate ¡ and this can only b& deemed a compliance, on the part of the parent, with the dictates of nature. It must, therefore, be admitted, that in most instances, the allowance now sought for would be illegal and improper. An opulent parent, after his children arrive at full age, could not be allowed to charge them with the expénses of their maintenance and education, out of their separate property. Although this is conceded to be law; yet cases exist which are exceptions to this rule, and must frequently occur, with regard to the mother. I cannot, however, assent to the distinction, in so full an extent as the counsel on the part of the appellants have attempted to establish it, that the obligation of maintenance and education of children is, at all times, only applicable to the father. On the contrary, if the mother possesses an ample fortune, in her own right, the natural situation in which she is placed, according to my View of the subject, renders it equally obligatory on her to provide for her offspring.
In the case of Fawkner v. Watts, (l Atk. 405.) the master ©f the rolls, says, I shall not dispute but every father and mother, by the law of nature, is under an obligation to maintain their own children; but yet, this- may be varied by circumstances j for suppose the father or mother should be in a mean or low condition in the world, the court will order, especially in the case of a mother, that the child should be maintained out of a provision left it, even by a collateral relation.
In Fonblanque, (page 238. in a note,) it is stated, that as the court will allot maintenance for the infant, out of the produce of his estate, it will also, in so doing, consider [587]*587the circumstances and state of the family. As when there is an elder son, an infant, and other younger children, who have no provision, the court will allow a more ample maintenance to the guardian of the eldest son, by which the younger children may be maintained; and, as the court will, in some cases, order maintenance where none is directed, so in other cases it will refuse to apply the fund for maintenance, though so directed, if the father be living, and of sufficient ability to maintain his child; and in some cases the court will allow the principal to be broken in upon. In the case of Jackson v. Jackson, (1 Atk. 513.) the lord chancellor refused to give direction, the plaintiff appearing to be sufficiently competent; and declared, that whether an infant should, have an allowance of maintenance, during the life of the father, depends always upon the particular circumstances of the case.
In the case of Collier v. Collier, (3 Ves. jun. 33.) Sir George Collier, by his will, gave his wife 400/. a year, in ■ addition to 500/. to which she was entitled by marriage settlement, to be paid half yearly, in consideration of the expense and care she should incur, in the maintenance of the children; she was, notwithstanding, allowed for their education and maintenance abroad; and the lord chancellor there says, it would destroy the purpose of the legacy; the testator could not have meant, that she would be laid under a temptation to spoil the boys, by keeping them at home.
From the cases mentioned, and several others, cited in the argument, I think this doctrine is manifestly established, that the allowances to infants, for their maintenance and education, can only be made according to the circumstances attending each particular case.
The next inquiry, therefore, is, whether the facts disclosed in the case now before us, will warrant the allowance as stated in the masters report-
[588]*588If the widow had, immediately on the decease of the husband, claimed her share of the personal estate, and i an assignment of her dower, she would, after the payment of all the debts, have been possessed of upwards of 18,000 dollars, personal property, and an annual income of about 3,000 dollars, out of the real estate. Had she been regardless of the prosperity of her children, she- ' might easily, out of this, have satisfied their absolute necessities, and suffered her own property to accumulate,. To drive a mother to such an extremity, to prevent the absolute rpin of her own estate, is too mercenary a principle to suit the genius, of our equitable jurisprudence 3 besides, the consequence would be, that the more extensive the property left the infants, the greater would be the probability of a neglected education.
But this was property belonging originally to the husband, whose obligation to provide, extended to his. wife as well as children 3 and after his death, by the operation of law, she became exclusively entitled to her part, and the children to. their proportion. It may, therefore, well be questioned, whether the obligation to provide, on the part of a mother so situated, does continue, if even she had immediately insisted on her legal rights; this, however, she did not do; it is, consequently, out of the question. Instead thereof, and of being altogether occupied to increase her own interest, she administers on the estate of her husband, bestows all her time and attention in discharging debts, making improvements, and -fulfilling contracts, entered into by the intestate; and by judicious and prudent management, equally benefits all the parties interested^ The extraordinary care and attention thus bestowed, is not denied 3 on the contrary, it is admitted that the whole of the improvements made by her, have been beneficial to the heirs; and yet it is contended, that all this does not alter her situation.' She is to be made responsible to her children, for the principal and interest of two thirds of thr; [589]*589personal property, and the annual proceeds of twb third's of the real estate, and they are not to be at the expense of their own maintenance and education, but must be enriched at the expense and ruin of their mother. Such a monstrous doctrine cannot be tolerated. The disinterested conduct of the mother, in this instance,, entitles her . . „ . . . ; to protection • and, m my opinion, she ought to have been allowed for the maintenance and education of her children.
The case of Aynsworth v. Pratchelt (13 Ves. jun. 330.) will well warrant this allowance for time past. There the testator, by his will, directed 1,000/. to be paid his daughters, when 21 years of age, and gave 100/. per annum to his wife. The prayer of the petition was, that the petitioners may be declared, under circumstances, entitled to farther maintenance, as well for the time past, since the death of the father, as to come, and a reference to the master for that purpose, The master of the rolls said, upon the authorities, the order might be made.
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Yates, J.
This cause comes before the court, on an appeal from the decretal order of the court of chancery, of the 16th of December, 1809, disallowing the report of the master, and directing a new reference, and that the master should totally omit and reject all allov/ance for «he maintenance and education of the respoadeatn»
[586]*586Two questions are presented here; 1. Whether as allowance for the maintenance and education of the respondents can be made for the time past ? and if so, 2. Whether a new reference was necessary,
It is, undoubtedly, the duty of parents to provide for their offspring, without creating an obligation on the part of the children to remunerate ¡ and this can only b& deemed a compliance, on the part of the parent, with the dictates of nature. It must, therefore, be admitted, that in most instances, the allowance now sought for would be illegal and improper. An opulent parent, after his children arrive at full age, could not be allowed to charge them with the expénses of their maintenance and education, out of their separate property. Although this is conceded to be law; yet cases exist which are exceptions to this rule, and must frequently occur, with regard to the mother. I cannot, however, assent to the distinction, in so full an extent as the counsel on the part of the appellants have attempted to establish it, that the obligation of maintenance and education of children is, at all times, only applicable to the father. On the contrary, if the mother possesses an ample fortune, in her own right, the natural situation in which she is placed, according to my View of the subject, renders it equally obligatory on her to provide for her offspring.
In the case of Fawkner v. Watts, (l Atk. 405.) the master ©f the rolls, says, I shall not dispute but every father and mother, by the law of nature, is under an obligation to maintain their own children; but yet, this- may be varied by circumstances j for suppose the father or mother should be in a mean or low condition in the world, the court will order, especially in the case of a mother, that the child should be maintained out of a provision left it, even by a collateral relation.
In Fonblanque, (page 238. in a note,) it is stated, that as the court will allot maintenance for the infant, out of the produce of his estate, it will also, in so doing, consider [587]*587the circumstances and state of the family. As when there is an elder son, an infant, and other younger children, who have no provision, the court will allow a more ample maintenance to the guardian of the eldest son, by which the younger children may be maintained; and, as the court will, in some cases, order maintenance where none is directed, so in other cases it will refuse to apply the fund for maintenance, though so directed, if the father be living, and of sufficient ability to maintain his child; and in some cases the court will allow the principal to be broken in upon. In the case of Jackson v. Jackson, (1 Atk. 513.) the lord chancellor refused to give direction, the plaintiff appearing to be sufficiently competent; and declared, that whether an infant should, have an allowance of maintenance, during the life of the father, depends always upon the particular circumstances of the case.
In the case of Collier v. Collier, (3 Ves. jun. 33.) Sir George Collier, by his will, gave his wife 400/. a year, in ■ addition to 500/. to which she was entitled by marriage settlement, to be paid half yearly, in consideration of the expense and care she should incur, in the maintenance of the children; she was, notwithstanding, allowed for their education and maintenance abroad; and the lord chancellor there says, it would destroy the purpose of the legacy; the testator could not have meant, that she would be laid under a temptation to spoil the boys, by keeping them at home.
From the cases mentioned, and several others, cited in the argument, I think this doctrine is manifestly established, that the allowances to infants, for their maintenance and education, can only be made according to the circumstances attending each particular case.
The next inquiry, therefore, is, whether the facts disclosed in the case now before us, will warrant the allowance as stated in the masters report-
[588]*588If the widow had, immediately on the decease of the husband, claimed her share of the personal estate, and i an assignment of her dower, she would, after the payment of all the debts, have been possessed of upwards of 18,000 dollars, personal property, and an annual income of about 3,000 dollars, out of the real estate. Had she been regardless of the prosperity of her children, she- ' might easily, out of this, have satisfied their absolute necessities, and suffered her own property to accumulate,. To drive a mother to such an extremity, to prevent the absolute rpin of her own estate, is too mercenary a principle to suit the genius, of our equitable jurisprudence 3 besides, the consequence would be, that the more extensive the property left the infants, the greater would be the probability of a neglected education.
But this was property belonging originally to the husband, whose obligation to provide, extended to his. wife as well as children 3 and after his death, by the operation of law, she became exclusively entitled to her part, and the children to. their proportion. It may, therefore, well be questioned, whether the obligation to provide, on the part of a mother so situated, does continue, if even she had immediately insisted on her legal rights; this, however, she did not do; it is, consequently, out of the question. Instead thereof, and of being altogether occupied to increase her own interest, she administers on the estate of her husband, bestows all her time and attention in discharging debts, making improvements, and -fulfilling contracts, entered into by the intestate; and by judicious and prudent management, equally benefits all the parties interested^ The extraordinary care and attention thus bestowed, is not denied 3 on the contrary, it is admitted that the whole of the improvements made by her, have been beneficial to the heirs; and yet it is contended, that all this does not alter her situation.' She is to be made responsible to her children, for the principal and interest of two thirds of thr; [589]*589personal property, and the annual proceeds of twb third's of the real estate, and they are not to be at the expense of their own maintenance and education, but must be enriched at the expense and ruin of their mother. Such a monstrous doctrine cannot be tolerated. The disinterested conduct of the mother, in this instance,, entitles her . . „ . . . ; to protection • and, m my opinion, she ought to have been allowed for the maintenance and education of her children.
The case of Aynsworth v. Pratchelt (13 Ves. jun. 330.) will well warrant this allowance for time past. There the testator, by his will, directed 1,000/. to be paid his daughters, when 21 years of age, and gave 100/. per annum to his wife. The prayer of the petition was, that the petitioners may be declared, under circumstances, entitled to farther maintenance, as well for the time past, since the death of the father, as to come, and a reference to the master for that purpose, The master of the rolls said, upon the authorities, the order might be made. In the present case, the mother has been wholly devoted to the best interests of her children; evidently, without a design to any exclusive private emolument. She ought, therefore, to be placed on such a footing, that those benefits might enure to the mutual advantage of all the parties ¿ and this cannot be effected, without an allowance for maintenance and education, since the decease of the father.
As to the exceptions, on the part of the respondents, I would observe, that I cannot discover, that crediting the appellants with 3,500 dollars, the amount of Titus's bond and mortgage, subsequently, by order of the court of chancery, converting it into real estate, for the general benefit of all .the parties, will produce a result, as to the extent of interest therein, to either party, different from what would have been the case, if the order had not beep made.
[590]*590The demand of interest on the whole amount of the estate) without crediting Mrs. Wilkes with her proportion, is unreasonable, and manifestly unjust, and ought not to be allowed. I do not think it necessary to analyze all the facts, set forth by the master in his report, as appealed from. I shall only state, that the allowance from the 12th of November, 1806, to the 1st of May, 1807", having been before made, for the support and maintenance of the respondents, ought to be rejected.
My opinion, therefore, is, that the order of the court of chancery, of the 16th of December last, be reversed; and that the master’s report, of the 28th of August last, on being altered, as to the allowance for support and maintenance, above mentioned, be confirmed ; that the cause be remitted to the court of chancery; and that his honour the chancellor be directed to decree an account and distribution, according to-the report; and also Jo-assign to the said Mary Wilkes her-dower in the real estate, specified for that purpose in the report.
Spencer, J.
The object of the bill filed by the re-» spondents, was for the purpose of settling the accounts between the parties, in relation to the management, by Mrs. Wilkes, of the estate, real and personal, of the intestate John Rogers; for a division of the property, after all just, allowances, according to the respective rights of the parties; and for the assignment of dower to Mrs. Wilkes. The bill, so far from charging Mrs. W. with improper management of the estate, explicitly admits that she has conducted herself so as to promote the interest of all concerned.
The answer admits the allegations of the bill, and joins in the prayer for the settlement of accounts, and the assignment of dower. After several former references, a new reference was directed by the. court of chancery, ort the 14th of December, 1808.
[591]*591On the coining in of the report of the master, under ■¿his last reference, each party took exceptions ; and on a hearing, the chancellor disallowed the report of the master, rejected all allowance for the maintenance, by the mother, during her widowhood, and for the education of the respondents, and directed a new reference. On this last order, the appellants have appealed to this court.
Before the merits of the case are considered, it seems to me proper to examine whether the court of chancery could set aside the report of the master, except for the r.auses set forth in the exceptions filed by the parties; for by a reference to the new order, referring the case back to the master, it will be seen that all the exceptions, except the second, on the part of the complainants, which relate to the allowance to Mrs. Wilkes for the maintenance and education of the respondents, prior to her intermarriage witfi John Wilkes, have been disregarded by" the court of chancery. This inquiry becomes the more necessary, because the first ground on which the new reference has been made, is, “ that the report does not contain a particular specification of the improvements, repairs, and expenditures, distinguishing the nature thereof, and whether advantageous or not, which have been made of the real estate of the intestate,” Sic. and the master, in his report, states, “ that schedule A. contains the estimate of the value of the improvements and repairs made on the real estate, as far as the same could be ascertained from the testimony and estimates of the witnesses.” We see, then, that the new order refers the matter back for a discrimination, which the master says cannot be made, and for a matter not excepted to by the respondents.
It appears to me that exceptions pat take of the nature of special demurrers; and if reports are erroneous, the party must put his finger on the error. When fee does so, the paría not excepted to are admitted to be correct, not only as it regards the principles, but as relates to [592]*592the evidence on which they are founded. It is my opithat the court of chancery cannot set aside a rePort upon exceptions not taken, and require further proof, when the parties whose interests would excite them to make every possible objection, are satisfied-It was suggested, that this being the case of infant respondents, the chancellor, as their guardian, was bound to see that justice was done to them; and that in this case he might refer a case back to the master, if he was dissatisfied. I cannot assent to this proposition •; the chancellor, it is true, has a right to appoint guardians of the persons and estates of infants ; and he is to see that justice be done them. But when he has committed the guardianship, and a suit arises in relation to the estate of an infant, his judicial functions, in the progress of that suit, are to be exercised in the same manner as if it were a suit between adults. He cannot act as judge and guardian at one and the same time. I am, for these reasons, perfectly satisfied, that the report of the master of the 28th of August, 1809, must stand, unless the exceptions taken to it by the respondents are valid.
The first is, that the appellants have had credit for 3,500 dollars, the amount of Titus’s bond and mortgage to Mrs. Withes, when the bond and mortgage have, since they were delivered up to the respondents’ guardian, been converted into real estate, for the general benefit of the respondents and appellants. This objection will appear frivolous, when it is recollected that Mrs. Withes stands debited with all the money she ever received, out of which she lent Titus this 3,500 dollars. When, then, she gave up the security for this money, and devested herself of it, she was entitled to a credit for it. The change of the security, effected by a foreclosure of the mortgage, does not alter the rights of the parties 5 she is entitled to her one third of the estate, and the respondents to their two thirds. The subsequent proceedings leave the rights of the partie^'unimpaired.
[593]*593The second exception is against the allowance made by the master for the maintenance and education of the children, during the time of Mrs. Wilkes's widowhood, on the ground that she is entitled to no allowance; and on the ground also, that interest has been calculated on the allowance, and that it is too high. The chancellor has sanetioned" the validity of the exception, and has refused any allowance for the support and education of the children.
I have examined the cases cited by the chancellor, and by the counsel, and am perfectly satisfied that they do not warrant the rejection of this allowance.
The cases cited are principally where the father has applied for an allowance out of the estate of his children, for their maintenance and education, and where they had estates given them from another quarter; and even in those cases, allowances have been made, if the circumstances of the father were such as seemed to require it. There is no case like the present, where the father has died intestate, and where the fortune of the mother and children is derived to them from the same soured and at the same time.
In the present case, the yearly income of the estate of the infants is more than adequate to support them, without breaking in on the principal; and it appears that the income of the mother is not sufficient to support herself and her children in the manner which their fortunes entitle them to be supported and educated. Hence it follows, that to oblige her to maintain and educate her children out of her own estate, would be to de* stroy the very fund which the law has given her for her own separate use, and to leave that of the children not only untouched, but rapidly accumulating. The law cannot coerce a parent to do more than to keep his or her child from becoming a charge on the town. An unmarried mother can be obliged, if of competent ability, to save the town from supporting her children; but beyond this the law does not go. This case affords the strongest [594]*594argument for saying that the mother who has only taken out of the fund which the father held for his wife an¿ children, the part allotted by law to her, shall not have that fund burthened with the maintenance and eduallotted by the law to them, and which is abundantly sufficient. It is impossible to lay down any general rules upon this subject; and I content myself with saying that, in this case, the rules of equity require, that the mother should be compensated. cation of her children, who have also received the part
I perceive no objection to the allowance of interest to the mother. It operates, in this case, as an offset; the mother being charged with interest for what she has received. I am satisfied too, that the amount allowed is reasonable, under the circumstances of the case; but if the respondents wish a further investigation on that point, I am content to leave the sum to be liquidated by the court of chancery. It is admitted that the master has included a period from the 12th of November, 1806, to 1st of May, 1807, for which Mrs. Wilkes had been allowed maintenance. This is a mistake, and must be rectified. As to the objection that an allowance cannot be made for past time, the respondent’s counsel appeared to abandon it. The decisions are, conclusively, that an allowance may retrospect. Lord Thurlow, who first laid down the rule that allowances should not be for time past, stands alone. Those who went before, and came after him, upon solid and just principles, made no distinction between the time past and the time to come.
The third exception relates to the interest. Both parties have objected to the mode of computing it. The respondents, if I understand their counsel, suppose that Mrs. Wilkes should be charged with interest, not on two thirds of what she received, but on the whole amount; because she had no right in the fund until it was distributed.- This objection is a two-edged sword; and if [595]*595there is any justice in it, it would excuse her from any Interest. If she is chargeable with interest, it must be for the benefit of the children; and their right to exact interest stands on the same footing as her’s to resist it. On the one third, their right in the fund is as incomplete as her’s. The objection is a subtle one, unfounded in principle, and unjust in the extreme.
My opinion is, that the order appealed from be reversed ; and that the master’s report, of the 28th of August, 1809, stand confirmed, except so far as relates to the period, for which the appellants have been allowed, for the support and maintenance of the respondents, from the 12th of November, 1806, to the 1st of May, 1807; and that the allowance, for that period, be deducted.
I have not noticed the exceptions to the master’s report, filed by the appellants, because they were lightly urged, and are, I think, untenable.
The rest of the court being of the same opinion, it was, therefore, ordered, adjudged, and decreed, that the order of the court of chancery be reversed; and that the report of the master, of the 28th of August, 1809, stand confirmed, except, that the allowance for the maintenance and education of the respondents, John Rogers, George P. Rogers, and Mary Rogers, from the intermarriage of the appellants, on the 12th of November, 1806, be rejected, inasmuch, as that allowance was admitted by the appellants to have been made by mistake; and, except the interest account between Alary Wilkes and the respondents, John Rogers, George P. Rogers, and Alary Rogers, in relation to the personal estate: and it is further ordered, adjudged, and decreed, that his honour the chancellor, after such modifications of the master’s report, shall decree an account, and distribution between the appellants and the respondents, according to the said report so modified; and shall [596]*596also assign, to the said Mary Wilkes, her dower, on real estate, specified for that purpose in the report. And it is further ordered, adjudged, and decreed, that the appellants convey to the said respondents one undivided fourth part of the farm at Croton, mentioned in the master’s report to have been purchased by the e r r , J said Mary Wilkes, with the moneys belonging to the estate of John Rogers, deceased, since his death, free from any acts done, or suffered, by the appellants, or either of them, to defeat or encumber the title; and that the proceedings, in this cause, be remitted, &c.
Judgment of reversal.