The court properly set aside the verdict. 158 Ala. 492, 48 So. 119; 93 Ala. 181, 9 So. 577; 97 Ala. 214, 12 So. 176; 117 N.Y. 131, 22 N.E. 563; 91 Ala. 621, 8 So. 349; 91 Ala. 272, 9 So. 334; 77 Ala. 184; 196 Ala. 66, 71 So. 701. McCLELLAN, J.

The funds of her estate were not in fact applied toward her support, but were used for other purposes, and the claim for maintenance was made only after it appeared that the purposes for which the money had in fact been expended were not legal. The allowance of this claim is not sustained by the authorities. ( Otis v. Hall, 117 N.Y. 131; Clare v. Mutual Life Insurance Co., 201 id. 492; Matter of Wandell, 32 Hun, 545; Shepard v. Stebbins, 48 id. 247; Johnson v. Weir, 72 App. Div. 325; Matter of Grant, 56 id. 176; Matter of Farrell, 123 Misc. 113.) Van Kirk, P.J., Hinman, Davis, Whitmyer and Hill, JJ., concur.

As there is no claim that there was any agreement on the part of Mrs. Grant to pay board for her son, and as it appears that the mother and son lived together with the stepfather as part of his family, there is a serious question whether the appellant here even individually could enforce any claim for the board of the boy. ( Otis v. Hall, 117 N.Y. 131.) But it is sufficient to say that he makes no such claim.

He testifies that a part was charged to him, but how much he does not state. The father was not a party to the proceeding. The item of one hundred and fifty-two dollars allowed for services of plaintiff on the farm from September 1, 1893, to June 16, 1894, was not shown to be a legal claim against the father within the rule laid down in Otis v. Hall ( 117 N.Y. 131). The defendants are, I think, entitled to a new trial not only on the ground that the evidence does not sustain the judgment, but also on the ground that the referee adopted an erroneous rule as to the measure of recovery.

The law is the fact, and that is averred. The case on this head is directly within the rule laid down in Schluter v. Bowery Savings Bank ( 117 N.Y. 131). The allegation there was that the foreign surrogate had jurisdiction "and was duly authorized and empowered by the laws of the State of New Jersey to issue said letters, as aforesaid." Judge EARL, in commenting upon this allegation, said: "We think these allegations were sufficient to authorize proof of the laws of New Jersey, and of the jurisdiction of the surrogate in issuing letters. If the plaintiff desired more specific allegations and was fairly entitled to them, he should have moved to make the answer more specific and definite.

Invasion of the corpus is only warranted when unusual circumstances appear. Although it is within the discretionary power of the court to grant permission to a general guardian to withdraw, from either income or corpus, portions of the infant's funds, this power is to be exercised with due care and only when the facts and circumstances warrant it ( Matter of Russell, 43 N.Y.S.2d 839; Otis v. Hall, 117 N.Y. 131; Matter of Davis, 98 App. Div. 546; Matter of Bihn, 171 Misc. 80; Hyland v. Baxter, 98 N.Y. 610; Matter of Taylor, 153 Misc. 673; Matter of Lapides, 144 Misc. 19, supra; Matter of Farley, 123 Misc. 564). Although the mother of an infant is not required to present as strong a case for invasion of either income or principal of an infant's funds as is required of a father, neither of her petitions sets forth any facts from which the court would be justified in determining that the mother is not of sufficient financial means to bear the cost of maintenance and education of her children imposed on her by law so as to warrant the exercise of the court's discretion to permit invasion of corpus.

In Goodman v. Alexander ( 165 N.Y. 289) the question was not at issue and the only matter determined was whether a complaint was sufficient or not. In Otis v. Hall ( 117 N.Y. 131) it was a guardian and not a parent who was involved. In Beardsley v. Hotchkiss ( 96 N.Y. 201) and Matter of Jeffrey (137 N.Y.S. 168) it was the father whose responsibilities the court was considering.

The allegations of the complaint on this subject are sufficient to authorize proof of all of the statutes of New Jersey applicable to the Elmira company to show that no such authority has been conferred upon it. Schluter v. Bowery Savings Bk., 117 N.Y. 131; Wright v. Chapin, 74 Hun, 526. In the absence of a statutory provision of law reserving such power there can be no issue of preferred stock in a corporation to the prejudice and injury of the owners of the common capital stock without their unanimous consent.