Dodge v. Benedict

The opinion of the court was delivered by Ross, J. The only question in this court is whether the defendant should be allowed, in set-off, his claim for taking-care of Lattis Gourley during her last sickness. The plaintiff’s intestate, by the terms of the deed from Gurdon Gourley, was bound to support her on the farm where he deceased. After the decease of Gurdon, she did not live continuously upon the farm. In the fall of 1882 she was taken sick in Moretown.- While she was there sick, the intestate deceased. Very soon after his decease, Lattis was able to have been moved to the farm, was moved to the defendant’s near the [653] farm, remained there until her decease, and was cared for by the defendant. The result of the findings of the referee is, that there was no contract between the plaintiff and defendant with reference to the care and support of Lattis during this period. She had the right to be supported during this period at the expense of the estate represented by the plaintiff, upon the farm. When she was taken to the defendant’s home, she could have been taken to the farm, but at her request was taken to the defendant’s home and there supported, without any contract or agreement, until her decease. The defendant was her son-in-law. After the decease of her son, it was natural that she should desire to reside with her daughter, the defendant’s wife. But such support by the defendant would, without contract, give him no legal claim against her or her estate or the. farm of the intestate. The intestate’s obligation -was not for her support at any other place than on the farm. We need not consider whether he or his estate would be holden for her support if taken sick while on a proper visit away from the farm, and rendered unable to be removed to the farm. The facts found by the referee • do not present such a case for consideration. The only question presented for decision is, whether, where the contract is for support at a particular place, and that place is continuously open to receive and support, and the person is able to bo carried there and supported, the support at some other place can be charged upon the person bound to support at the particular place, without any contract therefor. We do not think that it can. The contract, under such circumstances, does not provide for the support of Lattis at any other place. • To hold that it did would be to disregard if and make a new contract for the parties. It is the duty of the court only to enforce the contract as made. The defendant has no contract rights in regard to the support of Lattis. He can only at most be substituted to the rights of Lattis. By the contract evidenced by the deed, the intestate was bound to support her only on the farm certainly, so long as she was able to be carried to the farm for support.' When [654] she was voluntarily and purposely absent from the farm, without any contract or arrangement with the intestate in regard to her support, and without the default of the intestate, she could not charge the intestate for her support; neither, under such circumstances, could the defendant furnish her support and legally charge it to the intestate. The contract evidenced by the deed does not obligate the intestate to furnish support at another place under such circumstances. The judgment is affirmed..