Lead Opinion

The opinion of the Court was drawn up by

Barrows, J.

It has been repeatedly decided, in this State, that persons absolutely non compos mentis may acquire a settlement in their own right by a five years’ residence, that is to say, according to rule YI, § 1, c. 24, R. S., 1857, and corresponding provisions in previous enactments. Augusta v. Turner, 24 Maine, 112; New Vineyard v. Harpswell, 33 Maine, 193; Gardiner v. Farmingdale, 45 Maine, 537; Auburn v. Hebron, 48 Maine, 332.

*542No sufficient reason is perceived for departing from these decisions, or for so refining upon them as to make them dif•ficult and uncertain in their application by common minds, or so as to open the way for much manoeuvering and innumerable conflicts of testimony as to petty details in these questions of settlement. The decisions are intelligible as they stand, and afford a convenient rule for determining the questions that may arise. It may, not unfrequently, be easy to ascertain what town has been the home of any given individual for the space of five years continuously,- when it would be difficult, if not impossible, satisfactorily to determine whether the person had been bodily present in such town every day or hour of the period.

Another class of cases, like Wiscasset v. Waldoborough, 3 Maine, 388, and Tremont v. Mt. Desert, 36 Maine, 390, decide that a person non compos mentis, who continues to reside with, and be dependent upon his father, after he arrives at the age of 21 years, is not thereby emancipated; and it may be well enough, on the principle of humanity, so strenuously contended for by the plaintiffs’ counsel here, to hold that where mutual care and dependence indicate that the ties of nature are warmly regarded, parties thus nearly related shall not be subjected to separate settlements. But the widest range in the realms of sentiment or imagination would fail to detect, in the circumstances of this case, any reason to suppose that the condition of this pauper or his friends would be in the least ameliorated by fixing his settlement in the same town with a father from whose control and care he had been so long emancipated and turned adrift.

When the father of the pauper acquired a settlement in the defendant town, in 1834, the pauper was more than thirty years of age, a resident of another town, not supported directly or indirectly by his father, and whether non compos or not, had long been free from-parental control,1 and his settlement could in no way depend upon that of his father • then gained.

*543The instructions in this case, so far as the plaintiffs’ rights were affected by them, were carefully guarded, and they certainly furnish ‘the plaintiffs with no rightful cause of exception.

The pauper was a witness in the case. The jury could judge of his capacity, and, to a cci’tain extent, the instructions required them to do so, and they appear to have found, under those instructions, that he has had his homo and residence ' in the plaintiff town for twenty-five or thirty years last past, laboring there for such compensation as he could get, and, when temporarily absent, always retaining the intention, subsequently uniformly executed, to return there as his permanent home and abiding place.

It is perhaps seldom that the unfortunate subjects of this class of suits are possessed of intellectual abilities of the highest order, but the mental power of Socrates could hardly have enabled him to gain a settlement under our pauper laws more effectually. Exceptions overruled.

Appleton, C. J., Cutting, Kent and Walton, JJ., concurred.

Concurrence Opinion

Kent, J.

I concur in the opinion. The presiding Judge did not rule, as the plaintiffs’ counsel in his ingenious argument seems to assume that he did, — that an insane or non compos person, who was incapable of forming an intention by reason of mental alienation or imbecility, could retain a home, when absent by reason of an intention to return. But he did say, in substance, that if the pauper had sufficient intelligence to form and retain the intention of leaving and returning, and did so return, such temporary absence would not prevent his gaining a settlement.

There are degrees in insanity and in mental imbecility. In this case, the jury could not answer the question whether the pauper was or not, non compos. But they did find, under the instructions, that he had sufficient intelligence to form an intention, and that he did form such an intention. The instruction, thus guarded, was correct, and does not involve the broad proposition stated by the counsel.