Town of Danville v. Town of Wheelock

The opinion of the court was delivered by Redfield, J. This was an appeal from an order of removal of “ Israel P. Magoon and family,” as likely to become chargeable to the plaintiff town. The order was made March 20, 1873, and the issue is as to the status of Magoon and family at that time. In the spring of 1871, Magoon and wife, by mutual agreement, separated — she, with the youngest boy, living with her father, and supporting herself and child by her work, and the husband and elder boy gained subsistence by peddling. The wife continued to aid the husband by mending his clothes and baking his bread. They lived apart, but in friendly relations, and in the [61] same town. The wife earned from 11.50 to $7.00 per week ; and “ it was not claimed that she, or the youngest boy, were likely to become chargeable, of themselves, at the time the order was made.” I. Walter Morse, the wife’s father, was allowed to testify, against the defendant’s exceptions, that “just before'Magoon and wife arranged to live separate, he went to the overseer of the poor of Danville, and told him that Magoon’s family needed help from the town ; that said overseer came and inquired into their circumstances and settlement; that the overseer informed Mrs. Magoon that, if aided by the town, she would have to go to the poor-house, and probably have to be removed to Ludlow, where he thought her legal settlement was; that she declined to receive aid ; and Magoon insisted he did not want aid.” The witness does not state the fact that Magoon was poor and in need of relief in the spring of 1871; but that he so informed the overseer. The fact, if it were true, that Magoon was likely to become chargeable to Dan-ville in March 1871, does not prove or tend to prove, that he was in that condition two years afterward. Besides, notice to the overseer of such condition, is not attesting that such, in fact, was his condition, and that he personally knew the fact. We think this evidence, as the matter is stated in the exceptions, is not admissible. II. The court were requested by the defendant to charge, “ that if the wife of Magoon was not likely to become chargeable, the husband was not liable to be removed to Wheelock, the wife remaining in Danville.” To this request the court made no response, and in no way defined what should be considered the family of said Magoon. The family of Magoon was his wife and two minor children; and if the family was self-supporting, it was not liable to an order of removal. There are many cases where the husband and father is imbecile, and utterly unable to contribute to his own support, but the wife and children maintain and support the family. In that case, the husband is not “ likely to become chargeable,” or subject to an order of removal. Every member of this family were bound in moral and legal duty, individually and collectively, to contribute to the support of the [62] family; and if their joint efforts were sufficient to that end, that duty could not lawfully be cast upon any town. The mutual arrangement that the wife, with the youngest boy, should go to her father’s, while the husband, with the elder boy, should essay to gain support by peddling Yankee notions, as promising the better return for their labor, was not an abandonment of the wife by the husband, or legal separation. The laiv does not allow the husband and wife to be separated by an order of removal, while the family relations subsist. In Dummerston v. Neufane, 37 Vt. 12, the court, Kellogg, J., says : “ The law recognizes no coercive separation of either from the other, except for crime. If, therefore, the wife was, at the time of making the order of removal, irremovoable from the town of Dummerston, it follows, by a logical necessity, that the husband was also then irremoveable from said town.” See Hartland v. Pomfret, 11 Vt. 440; Northfield v. Roxbury, 15 Vt. 622; Rupert v. Winhall, 29 Vt. 245; Hartland v. Windsor, Ib. 354. We think the court were called upon properly to explain the law upon this subject, and that the omission to do so was error. Judgment reversed and cause remanded.