¶1delivered the opinion of the court.
¶2This was an action in the nature of a bill in chancery to compel the guardian of three minor children, who are made defendants, to pay plaintiffs out of their estate, in his hands, a sum of money alleged to be due for past maintenance.
¶3The leading facts are that John Spotts, the father of said minors, died on the 8th of June, 1863, whilst he was a soldier in the United States Army, and as such entitled to a pension. Ilis wife received the pension after his death up to 1865, when she forfeited it by marrying the plaintiff John Otte, and the children became entitled to the pension, which amounted to about eleven hundred dollars when this suit was commenced, and is held by their guardian for them.
¶4The widow maintained the children, who were infants, the oldest being only six years of age, up to her inter-marriage with the plaintiff, and then she and her present husband since that time. They claim that it was worth twenty one hundred dollars to maintain the children up to the bringing of this suit, and they ask a judgment ordering that amount to be paid out of the funds in hind, and out of what may accumulate, each child being entitled to eight dollars per month till they arrive at sixteen years of age. It is alleged, that the mother and step-father are-poor and not able to support the children.
¶5*101The law seems to be well settled, that where the father or mother, of a -step-father, maintain infant children, they have no legal right to recover for past maintenance in an action at law, unless it be upon an express promise to pay the same after their arrival at years of maturity. But a court of chancery may allow it out of their estate, where the parents aré poor, and the infants are entitled to estate large enough to admit of it and leave enough for their future education and maintenance. Each case -must depend on its own facts. Here are three infant children to be educated out of this fund, and it is not more than sufficient for that purpose. The guardian has the right to appropriate it towards their education and future support, and he ought to do so with the approbation of the Probate Court having jurisdiction over him. We do not feel at liberty on the facts of this case to order anything to be paid to the plaintiffs. (See matter of Bostwick, 4 Johns. Ch. 100; Guion vs. Guion’s, Adm’r, 16 Mo., 48; Gillett vs. Camp, 27 Mo., 541.)
¶6The Circuit Court dismissed the plaintiffs-' petition on technical grounds. But under the view we take, the plaintiffs have no merits at all; and on this-ground the judgment dismissing the petition is affirmed.