City of Barre v. Town of Bethel

• Decision Date: 13 March 1929
• Parties: CITY OF BARRE v. TOWN OF BETHEL
• Court: Vermont Supreme Court

145 A. 410

102 Vt. 22

CITY OF BARRE v. TOWN OF BETHEL

Supreme Court of Vermont

March 13, 1929

November Term, 1928.

Agreed Statement of Facts---Domicile---Husband and Wife---Rights of Husband in Wife's Property---Acts 1919, No 90---Paupers---Insufficiency of Agreed Facts To Justify Inference Income Insufficient for Support.

1. Where case is submitted on an agreed statement of facts, such facts and the necessary inferences from such facts may be drawn, or considered.

2. Where residence is established in certain town presumption is that it continued to be at same place until a change was shown, and burden is on party asserting such change to prove it.

3. Where husband had residence with wife in town, fact that on same day when he had disagreement with her, he transferred to her his interest in his store property in such town and insurance thereon, she continuing to remain there as his wife, and retaining interest in such property, while he went to another town and lived there and paid poll tax therein and subsequently lived and worked in certain other towns, but eventually returning and living with wife, held not to show change of residence, when it appeared that within the period he was working in these other towns he returned to his home at least four times, on such occasions occupying same room with his wife, and that during all that period household goods and furniture previously used by him and wife remained in her possession.

4. There cannot be a permanent change of domicile, unless fact of removal and the intent to change domicile concur..

5. After husband, owner of store property, transferred such property to his wife, he had at least a freehold interest therein by virtue of his marital rights, it not being her separate property, and such freehold interest therein was not taken away by Acts 1919, No. 90.

6. On question whether husband and wife were self-supporting while residing in certain town so as to establish residence therein under pauper law, where agreed statement of facts showed that husband, who was self-supporting prior to temporary absence therefrom while working in other towns, had transferred to his wife his store property, in town where they had resided in which under law he continued to have a freehold interest by virtue of his marital rights, but did not show of what the store property consisted, or the annual income therefrom, Supreme Court could not say that income therefrom was insufficient to support wife, hence agreed facts showed that husband and wife were self-supporting during time in question.

ACTION under G. L. 4219 to recover for care of a pauper. heard by the city court of Barre, Fred L. Laird, Acting City Judge, presiding, on an agreed statement of facts. Judgment for the defendant. The plaintiff excepted. The opinion states the case. Reversed, and judgment for the plaintiff.

Judgment reversed, and judgment for the plaintiff to recover the sum of $ 51.71 with interest from February 9, 1926, and costs.

Deane C. Davis, city attorney of Barre, for the plaintiff.

John J. Wilson for the defendant.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, ^[1] and CHASE, JJ.

OPINION

WATSON C. J.

This case stands on an agreed statement of facts. It is said in Mathie v. Hancock, 78 Vt. 414, 63 A. 143, and in Chittenden County Trust Co. v. Hurd, Jr. et al., 93 Vt. 71, 106 A. 564, and in City of Barre v. Barre & Chelsea R. R. Co., 97 Vt. 398, 123 A. 427, 37 A.L.R. 207, that in such circumstances the case must be determined on the facts appearing as so established, for no inference can be drawn by the court from any of such facts. Lest the legal effect of the rule as stated above may be misunderstood, we state it with greater precision in Hooper, Trustee v. Kennedy, 100 Vt. 314, 137 A. 194, where it is given in substance that when the facts are agreed, such facts and the necessary inferences from such facts may be drawn, or considered. This is so for the necessary inferences are, in legal effect, a part of the facts agreed. To this effect is Old Colony R. R. Co. v. Wilder, 137 Mass. 536, 538.

It appears from the agreed facts that Henry W. Adams acquired property in a certain restaurant in defendant town on approximately August 14, 1919, and that he and his wife Odell Adams, then, for the first time became residents of that town and commenced living therein. Later in the year 1919 he exchanged his interest in said property for an interest in the so-called Buck store in East Bethel Village, in the same town, in which town he continued to reside. The residence of Henry W. Adams, having been established in the town of Bethel on approximately August 14, 1919, the presumption is that it continued to be at the same place until a change was shown, and the burden was on the party asserting such change to prove it. Sowles v. Carr, 69 Vt. 414, 38 A. 77; Rixford v. Miller et al., 49 Vt. 319; State, ex rel. Phelps v. Jackson, 79 Vt. 504, 65 A. 657, 8 L.R.A. (N.S.) 1245; Mitchell v. United States, 88 U.S. (21 Wall.) 350, 22 L.Ed. 584; 9 R. C. L. 567. The fact that on January 14, 1920, the same day on which he had a disagreement with his wife, he transferred to her his interest...