Andover v. Merrimack County

| N.H. | Jan 15, 1859

Bell, J.

By the Revised Statutes, chap. 65, sec. 3, “ no town shall be liable for the support of any person, unless he, or the person under whom he derives his settlement, shall have gained a settlement therein under some law passed since the 31st of December, A. D. 1795and by chap. 67, “ when any poor person, for whose support no person or town in this State is chargeable, shall be relieved,” the account “shall be paid out of the treasury of the county.”

Under these statutes it becomes a question whether a person who had a settlement in a town by virtue of the laws in force before 1796, and who has continued to reside in the same town afterwards, can be deemed to have acquired a settlement in that town in any of the modes prescribed by the statute, while his original settlement remained. And we understand that, in determining the question of the liability of a town for the support of a pauper, it has always been deemed sufficient to show that such facts had occurred as were required to create the liability on the part of the town, at any time before the relief was furnished. It has never been deemed material whether or not a similar state of facts had existed at a previous time; so that, in effect, the pauper was regarded as continually gaining a settlement so long as the necessary conditions continued, or as soon as new facts occurred sufficient by law to render the town liable. We are, therefore, of opinion that it is immaterial whether a person had a settlement before 1796 or not. A person, already having a settlement in a town before that time, would gain a new settlement there as often as the state of facts occurred which would confer a settlement upon a person recently arrived. Any facts occurring before 1796 are to be regarded as entirely immaterial. Gilford’s Petition, Belknap, December, 1849; Barnstead v. Alton, 32 N. H. 245.

J. Searles, the grandfather of the pauper in this case, was taxed in Salisbury from 1796 to 1801, for real estate exceeding §150 in value, and after be became insane bis guardian was taxed for bim, in 1802 and 1808, for more than tbat amount of real estate. Nothing is said in tbe case of tbe payment of these taxes; but, as it was tbe duty of tbe officers of tbe town to collect them, we think tbat, in tbe absence of all proof to tbe contrary, it should be presumed by a court or jury, after tbe lapse of twenty-years, tbat they were duly paid. Hopkinton v. Springfield, 12 N. H. 328; Colebrook v. Stewartstown, 8 N. H. 75.

Tbe taxation of tbe property to tbe guardian is sufficient to give a settlement to tbe ward. It has been held here, tbat, for tbe purpose of gaining a settlement, an equitable title is sufficient, as a right of redemption, or tbe estate of a cestui que trust. Hebron v. Center-Harbor, 11 N. H. 573; Poplin v. Hawke, 8 N. H. 124; New-London v. Sutton, 2 N. H. 401; Pembroke v. Allenstown, 21 N. H. (1 Foster) 107. If tbe guardian was a trustee for his ward, tbe latter would gain a settlement, but tbe ward, notwithstanding tbe appointment of a guardian, still remains tbe legal owner. Tbe law vests in tbe guardian not tbe property, but tbe care of it. “ He shall take care as well of tbe person as of tbe estate of bis ward,” &c. Rev. Stat., chap. 150, sec. 17; Comp. Stat. 386.

Tbe facts stated are sufficient to give a settlement to Mr. Searles in Salisbury; but it is contended tbat bis daughter, E. F. Searles, did not derive a settlement from bim, under tbe settlement thus gained, because she arrived to the age of twenty-one years in 1799, before tbe term of four years was completed. Tbe argument is tbat, upon her arrival to tbe age of twenty-one years, she became emancipated, unless she was disabled to take care of herself, of which tbe case furnishes no evidence; and tbat after emancipation she no longer follows tbe settlement which her father may afterwards gain, but retains tbe settlement she had at twenty-one, till she gains a new one for herself. The cases cited, Orford v. Rumney, 8 N. H. 382; Wakefield v. Alton, 3 N. H. 380, and Fitwilliam v. Troy, 6 N. H. 166, fully sustain these positions.

The mere fact that the daughter remained a member of her father’s family, after she arrived at twenty-one, till his settlement became fixed, is, under the decisions here, merely immaterial. Ve must, therefore, hold that she derived no settlement in Salisbury, from her father, which can be regarded in this ease.

By the death of her mother, in 1837, as the case states, E. E. Searles came into possession of some property. This property was admitted by the selectmen of Salisbury to be in the hands of the town in February, 1840. At that time a guardian was appointed for her as a non compos. In June, 1840, her property, by the inventory of her guardian, was in personal estate, $1,462. She died, and administration was granted on her estate in June, 1842, which amounted by the inventory to $1,255. The amount of property thus shown, by any reasonable intendment, was sufficient to give a settlement, and it continued to be owned by her long enough for that purpose; but the case only furnishes the means of forming a conjectural opinion. If the death of the mother occurred in 1839, as suggested in the argument, the time would be insufficient.

During part of the time, the property must have been in the hands of an administrator duly appointed, or of. one or more executors de son tort, and for the residue, in the hands of the guardian; and it is contended that no settlement can be gained by reason of a right to a distributive share of property under administration, until after a decree of distribution. It seems to have been held, in England, that a party entitled to a distributive share of a leasehold estate, not administered, does not gain a settlement by residence upon the property. South Sydonham v. Lamerton, cited 3D. & E. 117; S. C., 1 Stra. 57; Rex v. Widworthy, Burr. S. C. 109 ; Rex v. Lower Sevill, Burr. S. C. 436; Rex v. North Carry, 2 Doug. 770 ; Rex v. Canford Magna, 6 M. & S. 355; unless the parly is sole next of Mn, Rex v. Horseley, 8 East 405. The reasons, however, on which these decisions are founded are connected with the law of removals, and have no application here.

In equity, the interest of the administrator is deemed but a trust; 1 Story’s Eq. 506; and the next of kin are deemed equitably entitled to their shares of the residue; and it is but an application of the general principle, before stated, that an equitable estate, or interest, is sufficient to give a settlement, to hold, that if a party is shown to have a right in the estate of a person deceased, of the requisite value and for the required time, he thereby gains a settlement. Parsons v. Parsons, 9 N. H. 309.

But it is contended that, admitting that E. E. Searles gained a settlement in her own right, it is not material here, because her daughter, Mary Heath, the pauper, was over twenty-one years of age, and had been married several years before. She was, therefore, emancipated, and could derive no settlement at that time from her mother; and this is doubtless correct.

Mary Heath’s mother died before June, 1842, and in March and July, 1844, six hundred dollars were paid over to her husband’s guardian. In October, 1845, there remained of this estate in the guardian’s hands, $278.09, but in October, 1846, the balance was reduced to $223.54, and nothing further is stated in relation to the situation of this property. It seems a jury would be warranted in finding that $250 remained till the end of four years from the mother’s decease, but the fact is not so stated. "We infer, too, that during these four years E. Heath and his wife resided in Salisbury, but that fact is not so stated.

In the argument it is suggested that the four years, required by the statute to gain a settlement by the possession of property and the payment of taxes, must be calendar years, or political years; but we think there is no foundation for this idea. A settlement is gained, if the party has the requisite property in town, and pays his taxes for four years in succession, though his residence or his ownership may have commenced at any season of the year, and either may have terminated at the end of four years from that time. The ownership and the residence must both have continued together for four yeai-s, and the owner must have paid all taxes assessed on him, or his estate, during that time; and by those facts a settlement is gained. Wakefield v. Alton, 3 N. H. 380. It is not material whether the property is taxed, but it must appear that all taxes duly assessed were paid.

It is contended that the distributive share of the wife does not vest absolutely in the husband, but, if he so chooses, he may make it his own by reducing it to his possession. Here, the husband, being under guardianship as an insane person, could make no election; that the election, being in its nature one personal to'the husband, the exercise of a marital right could not be made by a guardian, and this we regard as the true view of the case. Parsons v. Parsons, 9 N. H. 321; Manston v. Carter, 12 N. H. 164; Wheeler v. Moore, 13 N. H. 481; Coffin v. Morrill, 22 N. H. (2 Foster) 352. The husband, therefore, could have acquired no settlement by reason of the estate which his wife derived from her mother, and which still continued her separate estate. The pauper consequently could have derived no settlement from her husband.

By the statute, Rev. Stat., ch. 65, sec. 1, cl. 1, “ a married woman shall have the settlement of her husband, if he has or shall acquire any within this State, otherwise her settlement at the time of her marriage shall continue.” It is therefore inferred, that in such a ease the wife can gain no settlement in her own right; but we think that the wife’s settlement at the time of her marriage, in case her husband has non e, is to continue, in the language of the 4th section, of the same statute, “ until a new settlement is gained in this State, and upon gaining such new settlement any former settlement shall be lost.” See Act of 1796 ; Laws of 1815, 362 ; Act of 1828; Laws of 1830, 300.

The language of the 4th clause of the first section of this act, “ any person of the age of twenty-one years, having real estate,” &c., is sufficiently broad to include the case of a married woman, having property, and whose husband has no settlement; and we see no reason why such married woman may not gain a settlement. It is, therefore, immaterial in this case whether the property is regarded as the husband’s or the wife’s.

As it does not appear that either Heath or his wife had, for four years, property of the value $250, or that either of them resided in Salisbury four years, while they owned that property, no reason appears why the account in question should not be paid by the county.

Exceptions sustained.