This application, as stated in the opinion of my brother DaNiels, is for the payment of a portion of the principal of a legacy of $6,000, which was to be invested and the income paid to the petitioner during his life, and after his death to be divided among his children in equal shares, the issue of any deceased child to take the share its parents would have taken if then living.
The father applied upon the ground that, through divers mishaps and misfortunes, he has for a year past been wholly unable to "provide for himself and family; that he is a house painter by trade, and if well, could earn in ordinary times from two to three dollars a day in good seasons; that in September, 1881, he was seized with an attack of malarial intermittent fever which unfitted him for work, and which continued to the time of signing the petition, rendering him wholly unable to provide for his family; and further, that his wife was similarly affected and had been sick and unable to provide for the family for the last seven months; that one of his children became unruly and was placed in the juvenile asylum where he now is; that the other children have been seized with the complaint affecting himself and his wife, from two to between five and seven months at a time, during the year last fast, and that the *420whole family have been supported from time to time by the charity of divers friends and upon the credit of the petitioner in the hope that he might regain his health and repay them hereafter; that on the 15th of August, 1882, he was' dispossessed from his home for the non-payment of rent, and that he was unable at the time of signing his petition to pay his rent then due, amounting to sixteen dollars, without assistance from friends or upon credit. And he further states that his credit is exhausted and, with the exception of the fund mentioned, neither he nor his children have any property or estate of any kind, except a small amount of household furniture, not exceeding in value $100, and some clothing for himself and his wife; that he owes to divers persons about $500, which has been borrowed for the support and maintenance of his family, exclusive of doctors’ bills, and that his wife and children are destitute of all means of support unless the legacy mentioned be apportioned and divided.
The application is made on behalf of all the children by their next friend, the father, and by him individually. The answer of the executors is simply to the effect that they have paid the interest on the $6,000 mentioned whenever the estate has produced any income. There is no denial of any of the facts alleged on behalf of the petitioner from any source.
The power of this court to make an appropriation of the legacy undoubtedly exists, as shown by Justice Daniels and from the cases cited by him. It is true, as suggested by him, that this is never done unless a case of extreme urgency is established by the papers. Such a case seems to be established by these papers, for, assuming the petitioner’s statement to be true, it is quite clear that he has not the means to sustain his children; that he is disabled from working; that his wife is also disabled from working by illness, and that for some time past he has been living substantially upon charity, his friends having assisted him, and upon a certain amount of credit, which is exhausted. There is no evidence, as already suggested, to gainsay this statement of the extremity to which the petitioner is reduced, and therefore a case is made out which is clearly within the rule stated. The emergency exists and there ought to be an appropriation made of a portion of the fund to relieve his present distress.
*421We should hesitate very much to interfere with the legacy if 'there was any doubt about the statement made by the petitioner on his own behalf and on behalf of his family. JBut we see no reason to doubt it, and there is nothing before us to justify the suspicion that the statement is not honestly and truly made in all respects. In consideration of the whole subject it is thought proper to direct an appropriation of $600, to be paid to the petitioner by the executors in the following manner: One hundred dollars upon the entry and presentation of this order, or as soon as the money can be obtained by the executors, and thereafter fifty dollars a month, the payment continuing until the sum named is exhausted, unless in the meantime the petitioner recovered his health and is able to work. In which case, on presentation of the fact to the court by the executors on behalf of the infants, a further order may be made in the premises modifying the order hereby authorized.
Davis, P. J., concurred.