Bell, J.
This case raises the inquiry whether the rule, heretofore laid down by this court, in relation to the liability of persons in moderate circumstances, for the support of their poor relations, standing in need of support, requires to be modified.
In Dover v. Murphy, 4 N.H. 158" court="None" date_filed="1827-09-15" href="https://app.midpage.ai/document/town-of-dover-v-mcmurphy-8503582?utm_source=webapp" opinion_id="8503582">4 N. H. Rep. 158, the court, upon consideration, sustained the charge of the court to the jury, “ that unless they were satisfied that the income of the defendant’s property, with his own labor, was sufficient for the comfortable support of himself ¡and his family, to pay the interest of the money he owed beyond what was due to him, and maintain the pauper, he had not that sufficient ability which the statute intended, and was not liable; that a person thus owning a farm, and not having more income than what was necessary for the maintenance of himself and family, is not bound to dispose of any part of his real or personal estate for the support of his poor relations. The *13question was not whether the defendant could pay the sum -demanded, or support the pauper any particular portion of time, without immediate injury to himself and family, but whether his income was such as to enable him to furnish such support, at any and all times, when the necessities of the pauper required it, without embarrassing him, or affecting the comfortable subsistence of his family.” And see Hillsborough v. Deering, 4 N. H. Rep. 94, and Newport v. Eastman, there cited.
The charge to the jury, in the present ease, presents a somewhat different view of what is to be regarded as sufficient ability, within the meaning of the law.
After stating that the same general principle runs through all the cases, that the burthen of supporting p mr relations is not to be imposed when it /would be not unlikely to reduce those upon whom it is thrown, to poverty and want, it is added: “ The court do not say to you that, in no case, is the relation reliable, unless he can support himself and family and the paupers from his annual income, for a man may have reached that time of life, and be in such circumstances, that it might not be unreasonable to require him, if necessary, to trench upon his capital. * * * * If, to give such assistance, so long as their circumstances and his should remain substantially the same, would endanger their own support, he was not bound to render it, not if the danger be such as a reasonable man ought to fear and guard against; but if, on the other hand, the question was whether, in all probability, a considerable portion of his property should go to his heirs, after the decease of himself a/nd his wife, or a part of it be applied, in his lifetime, for the benefit of this family, in their need, he was thus bound to apply it.”
The rule is well laid down by the learned judge in the court below, that the jury need not be satisfied of the ability of the relative proposed to be charged, to maintain the poor relation under all the contingencies which may happen, because the ability of the relative may become less, or the *14wants of the pauper may become greater. The question is to be decided with reference to the existing state of things. The ability of the relative is to be considered with reference to the present state of his property and his present indebtedness, his present income and his present reasonable expenses, the present number and condition of his family, and their health and ability to labor. The condition of the person requiring relief is to be judged of in the same way, by his age, state of health, ability to labor, or if there is a family, by their ages, health, &c., as they noware, having reasonable reference, in all these cases,to the nature of the disabilities which deprive them of the power of maintaining themselves. If, then, in the present state of his family and means, and in the present state of destitution of his relatives, and their inability to support themselves, he cannot afford the assistance their situation calls for, without reducing his property below the amount required, with his labor, to afford a comfortable support to his family, and thus hazarding their comfortable support in future, he is not to be deemed a person of sufficient ability, within the meaning of the statute. This is believed to be a correct statement of the principle, as laid down and acted upon by our courts for many years, and it approves itself to our judgment as a sound and reasonable rule.
But the charge, in this case, lays down a further principle, namely, that where a man has arrived at a certain time of life, so that the question may fairly be considered to be whether a considerable portion of his estate shall go to his heirs, after his death and that of his wife, or a part of it shall be applied, in his lifetime, to the benefit of his destitute relations, in their need, he shall be held chargeable, though at the expense of his capital.
This view was taken, in argument, by very distinguished counsel, in Dover v. McMurphy, 4 N. H. Rep. 158, and considered by the court, and deliberately overruled. “We cannot accede,” say the court, “ to the rule proposed by the *15plaintiffs’ counsel, to subject to this liability all a man’s estate, except what may be sufficient for his support during life, because that would be still more severe than the rule laid down in this ease, and would, in our opinion, tend to increase the burdens thrown upon towns rather than relieve them, and because it would be impracticable to apply such a rule with any certainty. There are no data by which it can be estimated how much a man may want to support himself and those who depend upon him through life. It must be all vague and uncertain conjecture.” These views seem to us to be sound and reasonable. The ordinary rule of the court seems to us to border on harshness and severity. It tends to destroy one of the most powerful inducements to industry, prudence and economy in those who have the misfortune to have needy relations, the hope of improving their condition, and of leaving their children to commence life under better advantages ; because it devotes all a man’s net earnings, beyond a limited amount, to the support of his needy and, perhaps, undeserving relations. Itis hard enough to say to a man, as the law, in effect, now says, “ All you have earned and laid aside, in the hope of fitting out your daughters respectably on their marriage, or of aiding your sons to buy their farms, or to procure the means of commencing business in their trades, must be devoted to maintain your relations;” especially where, as is too often the case, the misconduct of those relations has been a great obstacle to a man’s own success in life, without adding that even the property which has been earned and saved to secure himself from the almshouse, must all be applied to the same purpose, so soon as, from the approach of age, it becomes more and more certain that it will not be required for his own support; so that when he dies he will have nothing to leave to his heirs, or to reward the kindness of those who have cared for him in his declining years.
Such a result seems to us so unjust and cruel, that it could not have been intended by any legislative body. And *16so far from a more severe rule being adopted than that heretofore practised upon, we have the impression that when poverty and suffering become more common among those who shall come after us, as must unavoidably happen from a more crowded population, a more liberal rule may, perhaps, be adopted. And it seems to us that it will not be unreasonable to hold that the earnings of the man of labor, by means of the capital of others, in ordinary cases, are not to be taken from him for the support of poor relatives, until he has had opportunity to accumulate sufficient capital to give employment to his own industry. And that the accumulations designed to establish a man’s family in life, in a style suitable to enable them to acquire a decent and comfortable living, by the aid of their personal industry, are sacredly due to them, and ought not to be taken from him or from them by claims of an inferior character. However these impressions may be regarded, we are satisfied that the charge of the court below is not in conformity to the law, and there must, therefore, be
A new trial.