The opinion of the Court was drawn up by
Rice, J.Chapter 32 of R. S. of 1841, § 1, clause 4, makes general provision for the settlement of paupers in case of division of towns, or the incorporation of new towns from part or parts of one or more old towns.
The Act incorporating the town of Sebasticook modified the general statute so far as the support of the paupers then actually chargeable on the town of Clinton was concerned, by providing that each town should contribute to the support of such paupers in the proportion to their polls and estates, as ascertained at the valuation of the town of Clinton then last taken.
*554By a contract entered into between the authorized agents of the two towns, dated April 8, 1842, the future support of the existing, paupers, for which they were jointly liable,. was provided for by a division of the persons .then chargeable, and an assignment thereof to the respective towns. By this arrangement, David Goodale, with the family he then had, was to be supported, or provided for, by the town of Sebasticook, and Goodale has been a recognized pauper of the town of Sebasticook, from that time to the present, having received supplies as a pauper every year. His original settlement, however, had been gained in that part of Clinton which was not included in the new town. The four children, whose settlement is now the subject of contest, have been born since the incorporation of Sebasticook, and since the date of the contract between the towns already referred to.
The Act incorporating Sebasticook, so far as it modified the'general statute in relation to paupers, and the contract between the towns, refers only and in terms to paupers actually chargeable upon the town of Clinton at the time of ■the passage of the Act of division. All other questions of .■settlement must be determined by the general law. West Boylston v. Boylston, 15 Mass., 261.
It appearing that the legal settlement of David Goodale was in Clinton, and there being no*evidence that he had obtained a settlement elsewhere, he having been supported by Sebasticook only by virtue of the contract of April 8, 1842, his minor children, born since that time, obtained a derivative settlement from him in the town of Clinton.
Overseers are to relieve persons destitute, found in their towns and having no settlement therein. R. S., c. 24, § 24. To authorize such relief, the persons relieved must be destitute ; and the relief furnished must also be reasonable and proper. The statute does not prescribe the manner in which this relief shall be administered, whether personally by the overseers, or by contract with other parties. This must be left, in the first instance, to the sound discretion of the *555overseers, who are bound to act reasonably and in good faith.
It was the duty of Goodale to support not only himself and wife, but his minor children also, if of sufficient ability. If, however, he was unable to support his minor children, they not being emancipated, and they became chargeable, he thereby became a pauper. Garland v. Dover, 19 Maine, 441.
Independent of the contract, the whole family would have been chargeable upon the town of Clinton, Sebasticook (now Benton) being liable, under the Act, to contribute its proportion, if anything, to the support of Goodale and his wife. Under the contract, the minor children, only, are chargeable to Clinton, and to their support Benton is not bound to contribute.
Towns are entitled to the avails of the industry of their paupers, and are required to contribute only when that industry or other means of the pauper fail to afford a comfortable support. Sebasticook was, therefore, entitled to the avails of the industry of Goodale and his wife for their support, and it was oidy when there was a surplus of avails, or when Goodale ceased to bo a pauper on his own account or that of his wife, that such surplus could be appropriated to relieve the town of Clinton from the support of the minor children.
The evidence proposed, tends to show that without the children the parents would be able to support themselves, and that the supplies furnished were, in this instance, rendered necessary, wholly for the relief of the children.
Assuming such to be the fact, no reason is perceived why the town of Clinton should not be chargeable for those supplies which were actually furnished, and which were necessary for the relief of the children. If Goodale, after supporting himself and wife, contributed in part to the support of his children, by his surplus earnings, he did no more than his duty; and, for such surplus, neither he nor Sebasticook are entitled to recover. It is only*for the supplies which *556were necessary, and which were furnished by the town, beyond what the father was able to furnish, that the defendants are liable. This would seem to be the sum of $32,16, as per bill of items rendered. For that sum, the original plaintiffs are entitled to judgment, with interest from date of demand, and costs.
Tenney, C. J., May, Goodenow and Kent, JJ., concurred.