144 Mass. 25 | Mass. | 1887
It is to be considered whether Mary A. Harrington, the mother of Daniel Harrington, for whom support has been furnished by the Commonwealth, had herself acquired a settlement in the city of Boston. She was a-married woman, having no settlement of her own, and none derived from her husband elsewhere in the Commonwealth. She acquired one by residence in the defendant city for five years consecutively from February 14, 1877, to February 14, 1882, unless it shall be held that she received relief as a pauper during this period, by reason that, on her application, the sum of three dollars was given to her on February 11, 1882, by the overseers of the poor of Boston, to be used for the board of her child, who was then boarded out, she being then unemployed and unable to pay its board. Pub. Sts. c. 83, § 1, cl. 6, 7, and § 2. Taunton v. Middleborough, 12 Met. 35.
The husband of Mrs. Harrington was living in the Commonwealth, and on February 14, 1877, and on February 11, 1882, was serving terms of imprisonment in the house of correction. Whether, in the interval between these terms, if there was any, he resided with his wife, does not appear by the report or agreed facts, but it is found that during the whole period he contributed nothing to the support of his family, and was without means, owing to his intemperate habits.
If, under the circumstances, Mrs. Harrington was not under a legal obligation to support her child, then no relief was furnished her, and, although a married woman, she acquired a settlement in the defendant city by her residence of five years therein.
By the common law, as it exists in Massachusetts, the father is bound to support his minor children, and this even if he deserts them. Dennis v. Clark, 2 Cush. 347. Where the wife leaves the husband, having proper cause to do so, taking her
As the personal property of the wife passed to the husband upon her marriage, at common law, she was necessarily deprived of this means of supporting her children, and all legal duties growing out of the marriage were imposed upon him. Even where the wife possesses separate property, it has been held, independently of statutory obligation, that she is not compelled to support the children of the marriage. Thus, it is said by Lord Cottenham, in Hodgens v. Hodgens, 4 Cl. & Fin. 322, 374, “ The children may want even the necessaries of life; they may want the means of proper education; the law does not throw on the mother the duty, the legal obligation (the moral obligation we have nothing to do with here) of maintaining, educating, or providing for the children.”
The Pub. Sts. c. 84, § 6, are relied on as establishing that the mother, equally with the father, is under a legal obligation to support their children. This section enacts that the kindred of poor persons “in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, living in this State and of sufficient ability, shall be bound to support such paupers, in proportion to their respective ability.” It was founded on the St. of 1793, e. 59, § 3, which itself was based upon the St. of 43 Eliz. e. 2, § 7. This statute was in 1651 construed as not applying to femes covert. Custados v. Jinkes, Style, 283. Apart from the principle that the adjudged construction of the terms of a statute must be deemed tó be enacted as well as the terms themselves, when an act which has been passed by the Legislature of one State or country is afterwards adopted by another, Commonwealth v. Hartnett,
Nor, if we assume that the husband entirely abandoned the wife during the five years’ residence, which is the aspect of the case most favorable to the defendant, was the legal duty of supporting the child imposed upon the wife. That still remained upon the husband, and he could not extricate himself from it by abandoning his family, or so conducting himself that his means' of performing it were necessarily curtailed during his lawful imprisonment. Those who furnished support to his children had a lawful claim against him for the expenses. It was not intended that the father and mother should be jointly responsible; she becomes so only when he has ceased to be so. While the mother has greater rights over the child when she and it have been abandoned by the father, and while he will not be allowed to interfere with any reasonable contract made by her for the nurture or the employment of the child, this is upon the ground that he has authorized such contracts by his relinquishment of control over it, and not because he is no longer liable for its support. Wodell v. Coggeshall, 2 Met. 89. Dumain v. Gwynne, 10 Allen, 270. No facts here exist such as are found in Brow v. Brightman, ubi supra, where, the care and custody of the child having been given to the mother by a decree of this court, it was held that the father was not liable for its support. No contract could be implied against the husband, as he had ceased to have any control over the child, or any right to make any provision for it, except with the mother’s consent. The only remedy to obtain such provision for the child as the father might be able to furnish would be under the decree. In the case at bar, the
The wife having acquired a settlement in Boston, and the husband having none in the Commonwealth, the child follows and takes the settlement thus acquired by its mother. Pub. Sts. o. 83, § 1, cl. 2. The plaintiff is therefore entitled to recover.
Judgment for the plaintiff.