Mrs. Anna C. Wegmann vs. Peter Wegmann, Dative Tutor in Succession of Joseph Wegmann

The opinion of the court was delivered by

Monroe, J.

As appears from the statement of this case, as reported (ante p. 947), two judgments were rendered in the court a qua, upon the same day; the one upon an opposition, filed by Peter Wegmann, dative tutor, to the final account of Mrs. A. C. Wegmann, who had been destituted of the administrative tutorship of her minor children; and the other, upon the rule, taken by the said Mrs. Wegmann, to require said dative tutor to pay over to her, from the income o.f the minors, of whom she retained the personal custody, a certain alimony, for their support.

From these two judgments, appeals were prayed for by the dative tutor, by means of one petition, and were allowed by one order, and one appeal bond was filed. A motion was made in this court to dismiss the appeal from the judgment on the opposition, and said appeal was dismissed because it was considered that the amount involved was less than $2,000.00. The matter is now before us on the appeal from the judgment on the rule for alimony, and it is argued, on behalf of the appellee, that said appeal should also be dismissed, on the ground that there was but one appeal, and that the only bond given was to sustain the appeal from the judgment on the opposition.

No motion has been made to dismiss this appeal, and we do not feel called upon to dismiss it for the reasons suggested in the brief filed by the counsel for the appellee.

Upon the Merits.

As we understand the testimony and admissions, the total income accruing to the. minors is $912.00 per annum, of which $756.00, or $63.00 per month, is derived from the rental of a number of tenements, which must -be kept repaired and insured, and on which the taxes are to be paid; and $156.00 per annum is derived as interest upon certain mortgage notes. In addition to which, there are a few hundred dollars belonging to the minors which had not been invested, and, in fact, had not come into possession of the dative tutor at the time the judgment for alimony was rendered. By that judgment, the dative tutor was directed to pay from the revenues of the minors, seventy dollars per month, or a total of $840.00 per annum, leaving but $72.00 per annum, with which to pay the expenses mentioned above, not in- eluding the commission of the dative tutor, and taking no account of possible loss from bad tenants, and other causes.

We think, that, under the circumstances, the amount allowed should be reduced to $60.00 per month, reserving to the parties in interest, the right to airply for such other and further relief as changed conditions may, from time to time, require.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by reducing the amount of alimony allowed for the support of the minors from $10.00 to $60.00 per month, reserving to the mother and natural tutrix, having the custody of the persons of said minors, and to the dative tutor, having the administration of their property, alike, the right to apply for such other and further relief in the premises, as may, from time to time, be required. It is further ordered, that, as thus amended, the judgment appealed from be affirmed, the costs of the appeal to be paid from the funds of the minors in the hands of the dative tutor.