long as he lived, had the absolute right to such support out of such estate, independently of any contract with anyone authorized to represent the estate; and that a third person so supporting the son after the death of his mother is entitled to recover reasonable compensation from the estate. The court says: "His equitable right to the same out of the estate is certainly superior to the rights of those who took the estate subject to such charge."

In Hickman v. Moore (1914) 160 Ky. 474, 169 S. W. 827, where all the real and personal estate was given to the widow for life with power in the executor to sell so much of the land as should be necessary for her proper support, remainder at her death to others, it was held that one who supported and took care of her during her declining years, in consideration of her conveying to him the fee which he in good faith supposed her to have, was in equity entitled to be subrogated to the rights of the widow, as against the remainderman, to the extent he had so provided for her over and above the value of the use of the property, and that to that extent his claim might be adjudged a lien upon the property for such amount as was reasonably necessary for her support.

In Cutter v. Burroughs (1905) 100 Me. 379, 61 Atl. 767, the will directed the executrix to apply all or whatever might be necessary of the rents, profits, and income of testator's real and personal estate to the education and support of his daughter, and to sell at different times all of the real estate, or so much as might prove to be necessary, for the support of said daughter, remainder, upon the daughter's death without issue, to the defendants; the executrix died shortly after qualification, and her account as such was duly settled by her administratrix; later, a guardian was appointed for the life beneficiary, who was then thirteen years of age; from the death of the executrix until the death of the life beneficiary no one was appointed to act as legal representative of the estate; during

that time the guardian acted in precisely the same way as if he had been appointed to carry out the provisions of the testator's will; with the advice of counsel and the sanction of the probate court he sold all the lands of the testator, some to himself, and some to others, and applied the proceeds to the support of the daughter; later it was determined that the guardian had acted without legal authority in making the sales, that the transactions were void, and that upon the death of the beneficiary without issue the title to the lands vested in the remainderman. In the present action it was held that the plaintiffs, who had bought the land from the guardian, supposing in good faith he had authority to sell it, and who by paying for it had expended money for the support and benefit of the beneficiary, with whose support the lands were charged, were entitled to be subrogated to the rights of the beneficiary therein, and that their claims were an equitable lien upon such lands passing to the residuary devisees. The court said: "It may be here said, with respect to the claim of the defendants that the plaintiffs, in whatever they did by way of furnishing money or rendering services for Marie, acted as mere volunteers, is without support. The facts and circumstances connected with the furnishing of such money and services so clearly prove that the plaintiffs did not act as volunteers that we deem further allusion to this phase of the case unnecessary."

But in Bailey v. Worster (1907) 103 Me. 170, 68 Atl. 698, the peculiar provisions of the will influenced the court to take a different view of the question. The will gave one undivided half of the testator's estate to his wife absolutely, while the other undivided half was given in trust for her benefit for life; the trustee was directed to pay to the wife the net income of the trust property; and it was further provided that, should the necessities or comfort of the wife require means beyond the income derived from both the property given her and that held in trust, the corpus

should be sold and used for this purpose, in such a manner as to diminish the two halves of the estate equally, it being the intent and purpose of the testator that at the time of her death the halves should remain equal; under this provision practically all the estate except the homestead, both that which was given directly and that which was given in trust, was sold and used for the wife's support; the homestead, too, would have been sold for that purpose had not the beneficiary objected, on the ground that she desired to make her home there during her remaining days; third persons having assisted in furnishing necessary support, care, and maintenance to her in her last sickness, the trustee filed this bill for a construction of the will, and for instructions. The court held that under the facts of the case the trustee was without authority to sell the trust estate remaining after the death of the beneficiary, to satisfy the claims of those who had furnished the support. Said the court: "As the court will, under proper circumstances, execute a trust which the trustee has neglected or improperly failed to execute, so, on the other hand, we think the court should not interfere to execute a trust which could have been executed in the lifetime of the beneficiary, but which under the circumstances it was not then the duty of the trustee to execute. . . . The trustee . . . was ready and willing to perform his duty, but the beneficiary objected, for reasons which to her were good and sufficient. Her objection created a practical difficulty in the way of the trustee. The trustee's estate in the homestead was held in common and undivided with the beneficiary's own estate, which she took under the will. . She was not compelled by the will to sell her half for the purposes of comfort and support. The trustee could not compel her to sell it. Her objection to selling her own half, therefore, stood in the way of the trustee's execution of his trust. . . . The trust provision was not made for the benefit of creditors of the beneficiary, but in

And

favor of the beneficiary alone. when she prevented its execution in her lifetime, as in this case, no one after her death, claiming under her right, can enforce its execution."

In Clough v. Clough (1902) 71 N. H. 412, 52 Atl. 449, where the testator devised to his widow the use and income of his estate during her life, with authority to use so much of the principal as might be necessary for her support, it was held that as her right to encroach upon the principal did not depend upon her using all means to derive a reasonable income from the property in her possession, her son and coexecutor, whom she had allowed to live in a house covered by her life estate free of charge for rent, was entitled to reimbursement out of the general estate for sums advanced out of his own funds to the widow during her lifetime, for her necessary support, without deduction for rent of the house occupied by him during her lifetime.

But in Luckenbach's Estate (1895) 170 Pa. 586, 33 Atl. 121, where the testator bequeathed to his wife the life use and occupation of a dwelling house, with power in his executor to sell the house and use so much of the proceeds as should be necessary for her support in case of her need, remainder to his children, it was held that a person furnishing support to the widow, whatever his remedy might be, was not subrogated to the rights of such legatee to the extent of being entitled to exercise the right given by statute to the legatee to enforce the charge by a proceeding for the sale of the property; and the fact that he had obtained judgment against the deceased legatee, and also judgment against the executor as garnishee, did not entitle him to this position, the residuary legatees not having been parties to the proceedings against the executor.

In Worcester v. Chapin (1845) 10 Met. (Mass.) 188, where testatrix bequeathed property to one in trust for the necessary support of her son, to be furnished from the income and profits of the estate, with power

to expend so much of the property itself as might prove necessary for the proper support of the son, remainder upon the son's death to others, it was held that, as against the trustee and residuary legatees, a town furnishing support to the son during the latter's confinement in a jail or house of correction for his misconduct could not recover for the support so furnished, as it could not materially affect the son's comfort whether he was supported there from the trust fund or at the public expense.

In Fellows v. Fellows (1898) 69 N. H. 339, 46 Atl. 474, where mortgaged lands were devised to the testatrix's husband for his sole use and benefit during his life, so much as might remain at his death to be divided among their children, and the husband married again, and his second wife supported him from her own funds upon his representation that the debt should be a lien therefor upon the lands devised, and such second wife purchased the outstanding mortgage, it was held that she could not, as against the remainderman, hold the mortgage as security for the support so furnished the husband, or retain possession of the lands upon that ground.

Where property is merely charged with support for life.

In Thurber v. Chambers (1876) 66 N. Y. 42, it was held that, where third persons furnished support to another, relying for their compensation on a charge made on certain real estate for the support of such person during her lifetime, equity will enforce in their behalf an equitable lien of the legatee upon the devised real estate, to the extent of the value of the support furnished, even though the devise lapsed and the lands subject to the charge passed to the testator's heirs.

In Huffmond v. Bence (1891) 128 Ind. 131, 27 N. E. 347, where the owner of land conveyed it in consideration that the grantee should board, nurse, and care for him the remainder of his life, reserving to

himself the life possession and control of the land, it was held that, the grantee having failed and refused to provide necessary medical aid as an item of proper care and support, so that grantor was himself compelled to call a physician, the latter, upon the death of the grantor, would be subrogated to the rights of the decedent, and for his services might enforce a lien upon the land conveyed, just as the decedent might have done if alive.

In Linzy v. Whitney (1906) 110 App. Div. 462, 96 N. Y. Supp. 1075, the testator devised to his wife one third of his estate in fee and the life use of the remaining two thirds, subject to a charge in favor of his mother that she should have "a home at the house which shall be my residence at the time of my death, consisting of board, rooms, lodging, and proper care ...; but in case she resides or stays elsewhere than at the house where I shall live up to the time of my death, then she is not entitled to any support or maintenance from my estate;" it was further provided that in case of the widow's remarriage the whole estate should be sold, she taking one third of the proceeds, the remainder to be distributed among other devisees; the mother lived in the house on the farm until it was burned, when she went to live with a son; the widow remarried a few days following the fire. It was held that the son furnishing the mother with support after the fire was entitled to compensation for her care out of the testator's estate, and that an aliquot portion of the burden should fall on the widow, on the sale of the land after her remarriage.

In Henry v. Knight (1921) 74 Ind. App. 562, 122 N. E. 675, where a mother conveyed land to her son in consideration of his supporting his imbecile sister, and the son not only failed to support such sister, but subjected her to brutal treatment and placed her in an asylum for the poor, it was held that a niece of the sister, who removed her from the poorhouse and provided for her, could not be treated as a volunteer, as she was act

ing under a strong moral obligation, and, in a sense, under a form of compulsion, which equity would recognize as a basis for subrogation in her favor to the rights of the imbecile sister against the grantee son; therefore, for the support furnished, she was entitled to a personal judgment against the son for the amount, the same to be declared a lien upon the land conveyed. It was further held that the son would not be allowed to plead by way of defense that the deed contemplated that such support was to be rendered on the farm conveyed to him by his mother.

In Re Stewart (1887) 15 N. Y. S. R. 420, where the testator directed his executors to pay to a certain asylum its charges for the care of the testator's insane brother for the remainder of the latter's life, said expenses to be a charge upon testator's residuary estate, it was held that, so long as the asylum was able and willing to care for and support the brother, it was entitled to receive a reasonable compensation therefor.

In Halstead v. Westervelt (1886) 41 N. J. Eq. 100, 3 Atl. 270, it was held, however, that where real estate is charged with the maintenance and support of one for life, a mere volunteer who furnishes such support, nothing appearing to show that the devisee refused or neglected to do so, cannot enforce a charge for support against the estate charged therewith, on the principle of equitable subrogation to the rights of the legatee; neither is he entitled to have a judgment previously rendered in his favor against the legatee, for the value of the support rendered him, declared a lien upon the land.

In McQuerry v. Wilson (1899) 21 Ky. L. Rep. 112, 50 S. W. 1099, under a will devising land to the testator's son, "provided he takes proper care of his mother" during her life, it was held that one furnishing support to the widow is a mere volunteer, and cannot assert a lien upon the land devised, or hold the devisee personally liable for the value thereof, though the mother could not live in peace with the son because of his

ill treatment, and though he failed to make provision for her elsewhere, and though the support was furnished at the request of the mother and with full knowledge and acquiescence of the son, and assuming that the property devised was subject to a lien in favor of the mother to secure a comfortable support to her. The court says: "We are not to be understood as deciding that Mrs. Wilson [the mother] or her administrator had not the right, if appellee refused to provide proper care' for her, to recover such sum as might be reasonable to supply such proper care, and to subject the property devised to its payment. What we intend to decide is that appellant, being a mere volunteer in furnishing a support to Mrs. Wilson, could not bring suit directly against appellee, or to subject the land to the payment of his claim, but must look alone to Mrs. Wilson or her estate for the payment of the amount due him under his contract with her, if he had a contract."

In Eastern State Hospital v. Goodman (1913) 155 Ky. 628, 160 S. W. 171, a father conveyed land to his son in consideration of the latter's agreement to support him the remainder of his life, reserving a lien upon the land to

secure the performance of the agreement; later the father was adjudged insane and taken to the state asylum by the state authorities; the son was at all times ready and willing to support the father at his home; by statute, in such case, authority was given the hospital authorities to recover for the patient's board where he had any estate which could be subjected to debt. It was held that the asylum could not claim subrogation to the father's lien upon the land for his support, where the son had willingly assumed the burden until his removal to the asylum, as the contract to support was personal to the son, and did not contemplate the support of the father elsewhere than at the son's home, in the absence of fault on the part of the son.

In Isner v. Kelley (1902) 51 W. Va. 82, 41 S. E. 158, where lands were devised to J. and H., charged with

the support of their mother during her lifetime, "provided she resides with them," it was held that it was a voluntary matter with the mother whether she resided with the one or the other of her said sons; that her residing with the one or the other was a condition precedent to his taking care of and providing for her wants, and, until he should refuse so to care and provide for her, she had no cause of action against him; that, there being no provision in the will for either of them to provide for her away from his home, neither could be compelled to contribute to her support elsewhere, as long as he was ready and willing to take and care for her, it being a matter of choice with her as to where she should reside; and that where one of the devisees took care of her and kept her at his home, she having elected to make that her residence, he had no right against the other, or the latter's interest in the devised land, for contribution to the expense of the support furnished, in the absence of contract or mutual agreement between them.

In Wadsworth's Estate (1916) 64 Pa. Super. Ct. 604, where the testator devised lands to his wife for life, directing that at her death "the family is to live on the farm," and that his two imbecile daughters should "have a living off the farm as long as they both shall live, and at the death of both of them the farm may be sold and the money equally divided among the heirs," it was held that a third daughter, who was executrix of the estate, but in no way authorized to make expenditures for their support, and who took her sisters into her own separate home after the death of the widow, and there maintained and supported them, was a mere volunteer, as it was the intention of the testator that they should live on the farm and derive their support therefrom, and she could not claim reimbursement from the general funds of the estate; and it mattered not that their support might have been a charge upon the farm, and that under the statute they themselves were given a remedy to

enforce the charge, should the living to be obtained from the farm fail.

In Sayres v. Johannes (1921) 116 Misc. 497, 190 N. Y. Supp. 247, where land was devised charged with the expense of furnishing the testator's daughter with a home, food, clothing, and medical care and attention during her life, it was held that, upon the death of the daughter, her administratrix was the proper person to enforce the charge against the land for medical attention furnished the beneficiary; but that, where the administratrix had herself become the owner of the land, the person furnishing said medical attention might himself sue to enforce the charge without any previous demand upon the administratrix, it being sufficient that the latter was made a party to the action.

In Pinkerton v. Sargent (1873) 112 Mass. 110, the testator devised lands to the defendant charged with a trust binding him to pay for the support of the testator's wife during her insanity, she being confined in an asylum for the insane, and gave to the defendant as residuary devisee and legatee all the income from the estate not needed for the support of the wife; after the death of the testator, the plaintiff was appointed guardian for the wife, and for the remainder of the wife's life paid from his own funds all the expenses incident to her support at the asylum, the defendant contributing nothing to her support, and no demand being made upon him to do so; after the death of the wife, plaintiff was appointed her administrator, and as such brought an action at law for the amount which he had expended for her support. It was held that the plaintiff, as administrator, was entitled to maintain the action. It is plain that the theory on which the decision rests is that the plaintiff, in his representative capacity, was entitled to the arrears of the bequest, regardless of whether or not he himself had provided the support. Whether he could have recovered directly against the defendant in his capacity as guardian, or as an indi vidual, is not decided. As bearing