Town of Winhall v. Estate of Sawyer

The opinion of the court was delivered by Ross, J. The plaintiff appealed from the disallowance by the commissioners on the estate of Francis D. Sawyer, of a claim presented by it against said estate. In the county court, it filed a declaration in two counts. The first count alleges that the intestate brought one Lucy Cook, a poor and indigent person, who had not her legal settlement in Winhall, to Winhall, with the intent to charge that town with her support, without any order of removal therefor, by means of which, the town had been compelled to expend the sum of five hundred dollars for the support of said Lucy. The second count is like the first, except that it charges that the intestate aided and assisted in bringing said Lucy to Winhall with like intent. . The county court, on the motion of the administratrix, held, pro forma, that the action did not survive, and dismissed the same. The only question presented is in regard to the correctness of this ruling of the county court. By § 12 of ch. 52, Gen. Stat., actions which survive in favor of an estate, survive against an estate. This action is for a tort, and would, at common law, have died with the intestate. If this action survives, it is by force of that part of § 10, [469] of ch. 62 of Gen Statutes, by which executors and administrators are allowed to maintain “ actions of trespass and trespass on the case for damages done to real or personal estate,” in connection with § 12 of the same chapter, allowing the same actions to be prosecuted against executors and administrators, or by presenting the claim before commissioners. Was the alleged injury one done to the personal estate of the plaintiff, within the meaning of the statute ? The bringing of the pauper into the town of Winhall, wrongfully, and with the intent to charge that town with the support of the pauper, did not injure or destroy any specific article of personal property belonging to the town, nor did it take away or lessen any right to any personal property vested in the town. It added one to the number of paupers which the town must support, and caused the town to take money by taxation from the citizens, that it might appropriate it for the support of the pauper. If the claim made by the plaintiff, that the personal estate of the citizens of the town is, when taken by taxation for the use of the town, the personal estate or property of the town, is admitted, the plaintiff would not stand any better than an individual, who, by the like wrongful act of the intestate, should be obliged to take some portion of his personal property and expend it for the support of the pauper. Could such an individual, under the circumstances stated, maintain an action by force of the statute against the intestate’s estate ? We think not. The statute under consideration has been before this court on several occasions. In Adm’r of Barrett v. Copeland, 20 Vt. 244, the court held the action did not survive. The facts in that case were these ; Copeland was constable of Middletown, in the county of Rutland, and had an execution in his hands against the body of Barrett. He made a return upon the execution, that he arrested Barrett at Middletown, that Barrett escaped, and he retook him at Bennington, on fresh pursuit, where he would have had no authority to have made the arrest. Barrett brought an actir n against him for an assault committed at Bennington. On the trial, Copeland introduced the execution and his return,' which the county court held to be conclusive evidence in his favor, and he obtained a verdict, which however [470] was set aside by the supreme court. Before another trial, Barrett died and the suit abated. The administrator of Barrett then brought an action on the case against Copeland for having made a false return on the execution, alleging that, by Copeland’s use of his false return in the action of assault, the intestate had been defeated in that action, and had thereby been put to expense and damage. The gravamen of the action was that the intestate had been compelled to use some portion of his estate in paying the expenses in that action, by reason of Copeland’s having made the false return, and that thereby the estate of the intestate had been lessened- It is difficult to distinguish in principle that case from the case at bar. In that case, the intestate had been compelled to pay out money and thereby lessen his estate, by the making of the false return, the wrongful act set up in that case. In the case at bar, the plaintiff has been obliged to raise money by taxation, from its citizens, and pay out the same for the-support of the pauper, by the wrongful act of the intestate, in bringing, or aiding in bringing, the pauper into -Winhall without an order of removal. The correctness of the decision on the facts in Adm’r of Barrett v. Copeland, has never been questioned by this court that we are aware of.. Poland, J., in delivering the opinion of the court in Dana, Adm’r, v. Lull, 21 Vt. 383, while he criticises the reasoning of Judge Bennett in Adm’r of Barrett v. Copeland, by which Judge Bennett held that our statute was not to receive the same liberal construction as obtained under the statute of 4 Edw. III., says: “The decision of the court in that case we have no doubt was entirely correct, though some of the expressions used by the judge in' giving the opinion, if they are to be understood in the most extended signification, would narrow and limit the survivorship of action beyond what-we should be disposed at this time to hold. The action in that case was, not only in form, but in reality, for a tort; and although it was against the defendant as an officer, still, we think the case a very different one from a case like the present where the action is ex delicto in form merely. Indeed,, we think the cause of action in the case of Adm’r of Barrett v. Copeland, could not have been holdeu to survive under the enlarged and liberal rule which obtained .under the statute [471] of 4 Edw. III., which was, that all actions for injuries or wrongs, which were directly detrimental to the assets of the deceased, survived to his representative.” Judge Hall, in giving the opinion of the court in Bellows v. Adm’r of Allen, 22 Vt. 108, says: “ Having been present at the hearing of Barrett v. Copeland, I wish to say a few words further in regard to that case. I concurred in the decision, without reference to any supposed distinction applicable to that case, between our statute and that of 4 Edward III. I thought that action did not survive under the English statute, and think so now.” These two later cases, instead of revoking the authority of Adm’r of Barrett v. Copeland, on the facts in that case, recognize that case as having been correctly decided, and confirm it as the law applicable to such cases. The only question these later cases raise in regard to the decision in that case, is, as to the correctness of the doctrine announced by Judge Bennett in delivering the opinion, that, in order for a tortious action to survive under the statute, it must be brought “ to recover for damages done to some specific property.” The two later cases hold that in the words, “ personal estate,” as used in the statute, is included every description of property not coming under the denomination of real estate, so that the statute applies and furnishes a remedy for injuries done to the rights and credits of a testator or intestate, as well as to his specific goods and chattels ; bu¡ these cases hold, with the case Adm’r of Barrett v. Copeland, that the statute applies and keeps alive an action only for injuries done directly to the personal estate of a testator or intestate, giving to the words, “ personal estate,” this enlarged signification. Where the tortious act simply affects the personal estate indirectly,'for instance, by inducing a testator or intestate to pay money, or to sell goods to a person unworthy of credit, whereby his goods are lost, although his estate is thereby lessened, the action does not survive by force of the statute. This is in conformity with the decisions in Massachusetts under a similar statute. Read v. Hatch, 19 Pick. 47. Judgment of the county court dismissing, the appeal for the reason the action does not survive, is affirmed, and the same is to be certified to the probate court.