The civil law at first prohibited the husband and wife from making valid gifts to each other causa mortis; yet the rigor of the law was afterwards done away, and donations between huslaw was gifte to cling offers while mordentlit the river of the band and wife were good if they were not revoked in the lifetime of the parties; and Justinian abolished the distinction between donations inter vivos ante nuptias et post nuptias, and he allowed donations propter nuptias as well after as before marriage. (a) The wife could bind herself by her contracts without charging her husband. She was competent to sue and be sued without him. They could sue each other, and, in respect to the property, were considered as distinct persons, and the contracts of the one were not binding on the other. (b) Whatever doubts may arise in the mind of a person educated in the school of the common law, as to the wisdom or policy of the powers which, by the civil law and the law of those modern nations which have adopted it, are conceded to the wife in matters of property, yet, it cannot be denied, that the preeminence of the Christian nations of Europe, and of their descendants and colonists in every other quarter of the globe, is most strikingly displayed in the equality and dignity which their institutions confer upon the female character. than that which exists in the continental nations, and does not extend to real property or subjects which produce annual profits. The effect of marriage on the property of the husband and wife in Scotland, is largely and learnedly considered in Burge's Com. vol. i. pp. 423-462. (a) Inst. 2, 7, 3. Bynk. Opera, tom. i. p. 166. Observ. Jur. Rom. lib. 5, ch. 18. (b) A summary of the rules of the civil law on the rights and powers of the husband and wife, in relation to their property, is given in Burge's Com. on Colonial and Foreign Laws, vol. i. 262–275. The law concerning the conjugal obligations under the Scotch law is fully stated and condensed in Lord Stair's Institutions, by More, vol. i. note b. See, also, a learned note of John George Phillimore, Esq., annexed to his translation of the celebrated case of Manby v. Scott, from 1 Siderfin, 109, on the early periods of the Roman law in respect to conjugal rights and duties. LECTURE XXIX. OF PARENT AND CHILD. THE next domestic relation which we are to consider, is that of parent and child. The duties that reciprocally result from this connection are prescribed, as well by those feelings of parental love and filial reverence which Providence has implanted in the human breast, as by the positive precepts of religion, and of our municipal law. I. Of the duties of parents. The duties of parents to their children, as being their natural guardians, consist in maintaining and educating them during the season of infancy and youth, and in making reasonable provision for their future usefulness and happiness in life, by a situation suited to their habits, and a competent provision for the exigencies of that situation. (a) (1.) Of maintaining children. The wants and weaknesses of children render it necessary that some person maintains them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law. (b) The Athenian and the Roman laws were so strict in enforcing the performance of this natural obli gation of the parent, that they would not allow the father *190 *to disinherit the child from passion or prejudice, but only for substantial reasons, to be approved of in a court of justice. (c) The obligation on the part of the parent to maintain the (a) Paley's Moral Philosophy, p 233. Taylor's Elements of the Civil Law, p. 383. Puffendorf's Droit de la Nature, b. 4, ch. 11, sec. 4 and 5. (b) Grotius, b. 2, ch. 7, sec. 4. (c) Potter's Greek Antiq. vol. ii. p. 351. Dig. 28, 2, 30. Novel, 115, ch. 3. child, continues until the latter is in a condition to provide for its own maintenance, and it extends no further than to a necessary support. The obligation of parental duty is so well secured by the strength of natural affection, that it seldom requires to be enforced by human laws. According to the language of Lord Coke, it is "nature's profession to assist, maintain, and console the child." A father's house is always open to his children. The best feelings of our nature establish and consecrate this asylum. Under the thousand pains and perils of human life, the home of the parents is to the children a sure refuge from evil, and a consolation in distress. In the intenseness, the lively touches and unsubdued nature of parental affection, we discern the wisdom and goodness of the great Author of our being, and Father of Mercies. All the provision that the statute law of New York has made on this subject, applies to the case of necessary maintenance; and as the provision was borrowed from the English statutes of 43 Eliz. and 5 Geo. I., and is dictated by feelings inherent in the human breast, it has probably been followed, to the extent at least of the English statutes, throughout this country. The father and mother being of sufficient ability, of any poor, blind, lame, old, or decrepit person whomsoever, not being able to maintain himself, and becoming chargeable to any city or town, are bound, at their own charge and expense, to relieve and maintain every such person, in such manner as the overseers of the poor of the town shall approve of, and the court of general sessions shall order and direct. If the father, or if the mother, being a widow, shall abscond and leave their children a * public charge, their estate is liable to be sequestered, *191 and the proceeds applied to the maintenance of the chil dren. (a) The statute imposes a similar obligation upon the children, under like circumstances. This feeble and scanty statute provision was intended for the indemnity of the public against the maintenance of paupers, and it is all the injunction that the statute law pronounces in support of the duty of parents to maintain their adult children. (b) During the minority (a) N. Y. Revised Statutes, vol. i. p. 614. (b) See infra, p. 208, n. f. The statute law of New York, prior to the Revised of the child, the case is different, and the parent is absolutely bound to provide reasonably for his maintenance and education; and he may be sued for necessaries furnished, and schooling given to a child, under just and reasonable circumstances. (a) 1 The father is bound to support his minor children, if he be of ability, even though they have property of their own; but this obligation in such a case does not extend to the mother, (b) and the rule, as to the father, has become relaxed. (c) The courts now look with great liberality to the circumstances of each particular case, and to the respective estates of the father and children; and in one case, where the father had a large income, he was allowed for the maintenance of his infant children, who had a still larger income. (d)2 The legal obligation of Statutes, which went into operation in January, 1830, extended this legal duty of necessary maintenance to grandparents and grandchildren, reciprocally. This is the provision in the statute of 43 Eliz., and it has probably been followed, generally, in the other states. See, to this purpose, 4 N. H. Rep. 162. Statute Laws of Connecticut, 1784, p. 98, and of 1838, p. 363. Act of South Carolina, 1712. 2 Bailey's Rep. 320. The Revised Statutes of Massachusetts of 1836, speak, on this point, only of parents and children. (a) Simpson v. Robertson, 1 Esp. Cas. 17. Ford v. Fothergill, Ibid. 211. Stanton v. Willson, 3 Day's Rep. 37. Van Valkenburgh v. Watson, 13 Johns. Rep. 480. (b) Hughes v. Hughes, 1 Bro. Rep. 387. Pulsford v. Hunter, 3 Id. 416. Haley v. Bannister, 4 Madd. Ch. Rep. 275. Whipple v. Dow, 2 Mass. Rep. 415. Dawes v. Howard, 4 Mass. Rep. 97. (c) If the father be without means to maintain and educate his children according to their future expectations in life, courts of equity will interpose and make an allowance out of the estate of the children, and in an urgent case will even break into the principal of a vested legacy, for the purpose of educating an infant legatee. Newport v. Cook, 2 Ashmead, 332. (d) Jervoise v. Silk, Cooper's Eq. Rep. 52. See, also, Maberly v. Turton, 14 Vesey, 499. Massachusetts Revised Statutes, 1836, part 2, tit. 7, ch. 78, are to the same effect. If an infant becomes entitled to a sum of money during infancy, the Court of Chancery, on the application of the father, will order a reference in respect to the future maintenance of the child out of the fund; but it is not usual to make such an allowance retrospectively. 1 Tamlyn, 22. 1 If the parent be of sufficient ability to furnish his children with the necessaries of life, it seems that a neglect to do so is an indictable offence. In the matter of Ryder, 11 Paige, R. 185. Rex v. Friend, Russ. & Ry. C. C. 20. 2 Watts v. Steele, 19 Ala. 656. 4 Sandf. Ch. 617. Osborne v. Van Horn, 2 Flor. 360. Matter of Burke, 3 If a father is of sufficient ability to maintain his children, a court will not order any allowance to the parent from the child's separate estate; but, in other cases, the rule with respect to retrospective allowances is not so strict as formerly. In the matter of Kane, the father to maintain his child ceases as soon as the (a) Parish of St. Andrew v. Mendez de Breta, 1 Lord Raym. 699. (b) Tubb v. Harrison, 4 Term Rep. 118. Gay v. Ballou, 4 Wendell's Rep. 403. But now, by the English statute of 4 & 5 Wm. IV. c. 76, sec. 57, the person who marries a woman, the mother of legitimate or illegitimate children, becomes liable to maintain them as part of his family, until the age of sixteen years, or until the death of the mother. (c) Rex v. Munden, 1 Str. 190. Anon. 3 N. Y. Legal Observer, 354. (d) Stone v. Carr, 3 Esp. 1. Lord Ellenborough, in Cooper v. Martin, 4 East, 82. 2 Barb. Ch. R. 375. On a petition for an allowance to the parent from the child's separate estate, the father must show affirmatively, that he is, in point of means, unable to perform the duty of supporting and educating his children. Haase v. Roehrschied, 6 Ind. 67. A third person, who supplies an infant with necessaries, cannot maintain an action against the parent therefor, unless the latter has, expressly or impliedly, agreed to pay the amount. Raymond v. Loyl, 10 Barb. R. 483. Chilcott v. Trimble, 13 Barb. R. 502, S. P. Shelton v. Springett, 20 Eng. L. & Eq. R. 281. Contra, Dennis v. Clark, 2 Cushing, R. 353. State v. Cook, 12 Ired. R. 67. Weeks v. Merrow, 40 Maine, 151. Townsend v. Burnham, 33 N. H. 270. Clinton v. Rowland, 24 Barb. (N. Y.) 634. Keaton v. Davis, 18 Geo. 457. It was intimated in Van Valkenburgh v. Watson, 13 Johnson, (N. Y.) 480, that if a parent neglects his duty to furnish necessaries to his infant children, the law will imply an agreement to pay whoever supplies such necessaries. The court will not, except under very special circumstances, make an allowance out of the infant's estate to his father for past maintenance. For a case in which such allowance was made, see Carmichael v. Hughes, 6 Eng. L. & Eq. 71, and see Presley v. Davis, 7 Rich. Eq. 105. 1 And the relation which in such case he sustains to the child, will defeat any presumption which might otherwise arise, of a promise to pay the child for his services. Williams v. Hutchinson, 5 Barb. S. C. Rep. 122. S. C. 3 Comst. R. 312. Lantz v. Frey, 14 Penn. 201, S. C. 19 Penn. 366. And e converso, the step-son is not liable, on an express or implied promise, during minority, to pay for necessaries furnished by his step-father. The case of Gay v. Ballou (4 Wendell, R. 403) is so far overruled. Sharp v. Cropsey, 11 Barb. R. 224. Hussey v. Roundtree, Busbee, 110. And, generally, the law will imply no contract for |