Drake v. Town of Sharon

40 Vt. 35 | Vt. | 1867

The opinion of the court was delivered by

Kellogg, J.

The question in this case is, to whom does the money belong which was paid by Pierce, the father of the illegitimate child of the feme plaintiff, in settlement of a prosecution for bastardy commenced in her name, and prosecuted or controlled by the overseer of the poor of the town of Sharon. The sum of one hundred and seventy-five dollars, being the money in controversy, was paid by Pierce to the overseer on this settlement, and was by the overseer paid into the treasury of the town, on the 15th March, 1845. The child was a male child, and was born on the 23d of October, 1844, and he was supported by his mother until he was old enough to support himself, and he is now living. The town never incurred any expenses on account of his support, nor contributed any assistance to his mother towards it, except the sum of ten dollars paid to her when he was about one year and a half old. The prosecution, in settlement of which this money was paid, was commenced under statute provisions in respect to the maintenance of illegitimate children, which, in all essential particulars, were the same as those now in force. Gen. Stat., chap. 74, p. 491, et seq. The mother is authorized to commence a prosecution for bastardy, or it may be commenced, controlled and managed, under certain conditions, by the overseer of the poor. In either case, when an order of affiliation is made, the father is, in the language of the statute, “ charged with the support of the child, with the assistance of the mother, in such manner, and in such proportion, as the court shall judge proper, and for such time as the child is likely to he unable to support itself, and no longer, and also ordered to pay to the mother such proportion of the expenses already accrued in the premises as the court shall deem just, and all costs at such time as the court shall direct.” Gen. Stat., p. 492, § 7. The prosecution is allowed for the benefit of the mother, and its object is to compel the father to contribute to the payment of her lying-in expenses, and to assist her in providing for the child’s support; and it is provided by the statute that if she will give sufficient security to indemnify the town for the support of the child, then the power granted to the overseer to commence, or to control and manage, the prosecution shall cease, (G. S. p. 493, § 14,) and it is also provided that when the prosecution is controlled and managed by the overseer, he shall apply any money received under the order of affiliation, or on any compromise made with the father by the consent and approbation of the mother, exclusive of all costs, “ solely for the support of the child,” (§ 13.) From this statement of the statute provisions, it is manifest that the right which the town of Sharon had to the money received on the settlement of the prosecution against Pierce, was only the same right which it would have had to the same money if it had been received by its overseer under an ’order of affiliation made on that prosecution, and paid by the overseer intoits treasury.

The mother, having supported the child through the age of nurture and until he was able to support himself, is entitled to the benefit of tlie money received by the town for the purpose of being applied to that support, unless the town is entitled to retain it for some purpose authorized by the statute. It is claimed on the part of the town that the money was received as an indemnity against the support of the child, and that, as such, the town is entitled to retain it until all possible liability for his support has ceased, and that this can only be when he dies without issue, or obtains a legal settlement in some other town in this state. This claim, as we think, magnifies the right of the town to an indemnity for the support of the child far beyond the limits contemplated by the statute. The order of affiliation is intended to provide for the support of the child only for such time as he is likely to be unable to support himself, and no longer ; and the provision under which the powers of the overseer to commence or control and manage the prosecution are to cease if the mother will give sufficient security to indemnify the town for the support of the child refers to the child alone, and to its support for- the same period which would be provided for in the order of affiliation. This provision would be wholly defeated by a construction which would require the mother to give security to indemnify the town for the support both of the child and its posterity.

The town was trustee of the money in controversy for the specific purpose of applying it to the support of the child and the benefit of the mother, and we find no satisfactory ground upon which we can hold that it can now retain the money as against her claim. As the money was applied by the town to its own .uses at the time when it was paid into its treasury, we think that the town should be charged with interest upon the money from that time.

Judgment of the county court for the plaintiffs affirmed.