Adams v. Inhabitants of Swansea

116 Mass. 591 | Mass. | 1875

Colt, J.

The plaintiff claims that Mary Handy, to recover for whose board at the lunatic hospital this action is brought, had her legal settlement in the present town of Swansea, acquired through the birth of her grandfather Russell Handy, the son of Robert, in that town in the year 1759. The present adjoining town of Somerset was incorporated in 1790, and embraces territory which till then had been part of Swansea. It was provided in the act of incorporation of Somerset, that those born in the limits of that town, who should thereafter become chargeable for support, and had not gained a legal settlement in any other town, should be the poor thereof; and, by the act of 1793, a. 9, that those who, before the passage of the prior act, had gained their settlement by birth or otherwise in that part of Swansea which now constitutes the town of Somerset, in case they had already, or should thereafter, become chargeable for support, should be considered the proper poor of the latter town. The burden of proof was therefore upon the plaintiff to show that the settlement of Russell was acquired within the present limits of Swansea. The case was tried without a jury, and the findings of the judge are conclusive as to all facts, where there is competent evidence to warrant the result. It is not a question of the weight or sufficiency of the evidence. The difficulty is that there was in this case no competent evidence that the birth of Russell, if allowed to be sufficient at that time to give him a settlement, was within the present limits of Swansea.

The only evidence relied on was that of an aged witness who testified that he knew of a lot of land, near the town line, which in his youth was spoken of and pointed out to him. by the people of the town as the Robert Handy lot, and the lot where he lived. This was hearsay evidence, which comes within none of the exceptions to the general rule for its exclusion. The question was not one of pedigree; nor was it one of boundary, which, if public, or in its nature public, may be proved by reputation, or, if private, by the declarations of deceased owners, accompanying the act of pointing out a line. Its sole purpose was to fix the location of the lot where Robert Handy, the father of Russell, lived at some period in his life. If competent for such purpose, it is difficult to see how, with the aid of any known legal presumption, it tended to fix the birthplace of Russell on that lot, or that Robert lived there at the time. It is settled that hearsay is not admissible to prove the place of a person’s birth; Wilmington v. Burlington, 4 Pick. 174; that the declaration of a pauper as to where he was born, or that he was warned out of town, cannot be admitted; Braintree v. Hingham, 1 Pick. 245; and that family tradition or statements on the land as to the place where a house formerly stood, to which reference was made in a deed, for the purpose of locating a line, are not competent evidence. Hall v. Mayo, 97 Mass. 416. Long v. Colton, ante, 414.

Unless the settlement of Russell can be established within the present limits of the defendant town, this action fails, and it is unnecessary to consider the other questions raised by the defendant’s exceptions. Exceptions sustained.