Wendell v. Pierce

Parker, C. J.

It has been contended that the agent cannot be charged as trustee in this case, because he is a public officer. There are authorities in support of this objection, and reasons of a public nature which fully sustain them, but this case is not within the principle. Treadwell is here merely the agent of the town, to do a certain service, and the town itself is a corporation liable to be summoned as trustee, and actually summoned in this action. The agent is not a public officer within the meaning of the rule, and an agent can have no greater exemption from the operation of this process than is granted to his principal. For these reasons this objection must be overruled.

*505 The main question is, whether the principal debtor had any interest in this money. It appears that this is part of the money deposited with the state by the United States, under the act of Congress passed June 23, 1836. The legislature of this stale, by an act of January 13, 1837, directed the money thus deposited with the state to be deposited with the several towns which should vote to receive it, in a certain ratio therein prescribed, the towns pledging their faith for its safe keeping, and re-payment to the state treasurer, whenever called for by him, upon the requisition of the United States. By the terms of that act, the towns were forbidden to appropriate or expend the principal sum, but were authorized to appropriate the interest to such objects as they should deem expedient.

By a subsequent act, passed July 2, 1841, it was made lawful for any town to make such disposition of the money, as, by a major vote, the town should determine. This must be regarded as a gift of the money to the town, or as an authority to treat it as if it were the property of the inhabitants, to be disposed of at their pleasure.

The inhabitants of Portsmouth having this plenary power over the money in their possession, voted to divide it among themselves, as set forth in the disclosure. It thus became the property of the several inhabitants, in their corporate possession, and was placed in the hands of Treadwell, as an agent to carry the distribution into effect.

The vote distributes it, not as a gift from the town to the several inhabitants, but as a sum belonging to the town. It is divided among themselves ; distributed to the inhabitants. They cannot be regarded as having made a gift to themselves. By the vote, they became entitled to receive from the agent, as a matter of right, what the legislature had authorized them to exercise absolute dominion over, and thus to treat as their own. Whether it became such a vested right that the town could not have annulled the vote of distribution, and revoked *506 the authority of the agent, before payment, we need not en-quire, If they might do so, it stands good until revoked.

Such being the nature of the interest in this property, after the passage of the act of 1841, and the vote of the town, it is clear that the share of the principal debtor is liable to this process.

Respecting the share of the wife we have had more doubt, but have come to the conclusion that, under the view we have taken, this, in the hands of the agent, belonged to the husband, and is within the scope of the process. The husband it is said is entitled, absolutely, to all sums of money received by a third person, on account of the wife, during the marriage ; and if he should join her with him, in an action for the recovery, it would be error. Clancy’s Rights, &c. of Husband and Wife 3; Cro. Jac. 644, Abbot Wife vs. Blofield.

As the property of the inhabitants in possession, divided among themselves, and placed in the hands of an agent to pay over, it must be regarded as the property of the wife in possession, and thus belonging absolutely to the husband.

If the law of 1841 were regarded but as a donation by the legislature, with a power of appointment, it was a general one, which the town exercised by appointing the several inhabitants. In this view, also, the share of the husband would be held. But there might be more doubt as to that of the wife. It is not clear, however, that, regarded in that light, her share could be held to be a chose in action. But for the reasons before suggested, we think that this is not the true character of the case.

For the shares of the children, there is no pretence for charging the trustee. They take in their own right, and not through their father, or in any way which can subject their property to the payment of his debts.