Epperson v. Nugent

Campbell, J., delivered the opinion of the court. The liability of an infant for necessaries is based on the necessity of his situation. As he must live, the law allows to any one supplying his wants a reasonable compensation. The law implies the promise to pay from the necessity of his situation. What are “ necessaries ” cannot be determined by any arbitrary and inflexible rule. It depends on circumstances, and each case must be governed by its own. It is stated in the books that the wants supplied must be personal to the infant, either for the body or the mind, in order to come within the description of necessaries, and that counsel fees and expenditures in a lawsuit are generally excluded. This is, no doubt, the general rule, and for an obvious reason. Usually an infant who has an estate has a guardian, who may and should engage and pay counsel, where the interests of the infant committed to his guardianship require it. When an infant has no guardian, but has rights involved in litigation, and a lawyer has espoused the cause of the infant and devoted his services to the protection of the interests of the infant in such litigation, and as the result of the litigation an estate has been secured to the infant, it is just and proper, and within the principle on which an infant is held liable for necessaries, that the reasonable fees of such counsel should be paid out of the estate thus obtained^ If the infant had had a guardian who had employed and paid counsel, he would have [48] been entitled to reimbursement out of the estate of his ward for the reasonable fees so paid, to be allowed on settlement by the Chancery Court. Shall the fact that the infant had no guardian, until the acquisition of the estate involved in the litigation in which the services of counsel were rendered made one necessary, deprive counsel of just compensation ? We say, no! It will operate for the benefit of infants to allow just compensation for counsel fees and expenditures in their behalf in maintaining their rights in litigation which results in securing to them the means of supplying their wants. In Pugh v. Dorsey, 8 S. & M. 379, the jurisdiction of the Chancery Court to decree compensation to a lawyer who had rendered his services, as such, to minors was denied, on the ground that his remedy, if any, was at law. At that time the Probate Court had exclusive jurisdiction of minors’ business, and the Chancery Court had nothing to do with minors as such. Now the Chancery Courts have jurisdiction of minors’ business, and “ of all demands against the same.” Const, art. 6, § 16; Code 1871, § 976. The petition prays that the court shall ascertain what is a proper compensation for the services of the petitioner, and direct its payment by the guardian out of the estate of the minor, which the services of the petitioner contributed to secure. The court to which this application is made has jurisdiction of the person and estate of the minor, and is the appropriate tribunal to determine the matter brought before it by the petition. The case made by it commends itself to favorable consideration from the exceptional circumstances it presents. Decree affirmed.