53 N.H. 468 | N.H. | 1873
The question is, Where, if anywhere, is the legal settlement of Cynthia Ryan and her minor children, for whom supplies have been furnished by the town of Hopkinton ?
By the statute of 1868,1 Sess. Laws, ch. 1, sec. 23, it is provided that no town shall be liable for the support of any person, unless he, or the person under whom he derives a settlement, shall have wholly gained a settlement therein since the first day of January, 1840.
Cynthia Ryan was the legitimate daughter of John C. Ordway, who lived in Hopkinton, and died there in 1845, — prior to which0tiine, and subsequent to 1840, he had acquired no legal settlement in Hopkinton or elsewhere. Cynthia, therefore, derived no settlement from her father.
By the terms of the Gen. Stats., ch. 73, sec. 1, in case they derive no settlement from their father, legitimate children have the settlement of their mother, if any she has, until they gain a settlement of their own. Such has been the law ever since December, 1828. Laws, ed. of 1830, ch. 3. An exception to this general rule was grafted upon the law at the time of the passage of the General Statutes, applying only to the case of divorced parents; in which condition it is provided that, if after divorce the father retains the custody of such children, they shall
The widow of John C. Ordway, the mother of Cynthia, married Daniel Law in 1848 or 1849, who lived and had a settlement in Warner, acquired since 1840. Cynthia then lived with her mother and step-father, in Warner, until her own marriage with Samuel Ryan, two or three years later.
It would seem to be entirely clear, then, that Cynthia acquired 'the settlement of her mother, which was the settlement in Warner derived from her husband. ■
Rut it is contended by the defendant town that the effect of this subsequent marriage of Mr. Ordway’s widow was to emancipate his daughter ; and that, by reason of such emancipation, she did not take the settlement which her mother thus acquired; and the town of Warner rely upon sections 16 and 17 of chapter 1, Laws of 1868, in support of this position. The law thus invoked provides that “ a minor, if emancipated, shall not take an after acquired settlement from the parents.” And, “ a minor shall be emancipated, within the meaning of this act, by the death of the father * * and the subsequent mamage of the mother.”
This law is not, however, as the defendant town contends, declaratory merely of a former law, common or statutory, but its provisions were first applied to the settlement of paupers by the act of 1868, long after Mrs. Ordway and her daughter Cynthia had acquired the settlement of Daniel Law.
“ The statutes alone regulate and fix. all settlements of paupers, and they are to be construed strictly,” is the language of the defendants’ counsel (and so is Meredith v. Canterbury, 3 N. H. 80, and other cases), and it is a truthful proposition, which destroys the defendants’ case; because, until the statute of 1868, the settlement of legitimate minor children was not lost by any act of emancipation.
That statute cannot have retrospective or retroactive effect.
Prior to the passage of that act, the settlement of a child, entitling it to support from a town, depended not at all upon the fact that the mother, by subsequent marriage, might have lost her ability to support the child, any more than such settlement, and consequent town liability, were affected by the mother’s inabilty from poverty, merely.
The universally recognized principle of the common law, that a husband is not bound to support his wife’s child by a former husband, may practically work the emancipation of the child; and so it may perhaps be said that the 17th section of chapter 1 of the act of 1868 is but declaratory of the common law in that respect; but the trouble with the defendants’ case is the inapplicability of that law to the facts before us.
In the present case, and in others of similar character prior to 1868,
Cynthia Ordway, having, then, acquired the settlement of her mother in Warner, did not lose it by her own subsequent marriage with a man who had no settlement; for the law then (as it is now) was, that “ every settlement shall continue until a new settlement is gained.” Rev. Stats., ch. 65, sec. 4; Gen. Stats., ch. 73, sec. 5. See Merrimack v. Hillsborough, 19 N. H. 552.
In accordance with these views, and by the provisions of the case, there must be Judgment for the plaintiffs.
