| Vt. | Feb 15, 1833
Lead Opinion
The opinion of the Court was pronounced by
The pauper’s father had a legal settlement in Lunenburgh, where he resided with his family fourteen or fifteen years, and then died.
The pauper’s mother, in 1814 and ’15, after the death of her husband, and during her widowhood, gained a legal settlement in Newbury, by one year’s residence in that town, without being warned out, according to the act of November 6th, 1801.
The pauper, while his mother was gaining her legal settlement in Newbury, resided in the family of his uncle, at Lunenburgh, and was 16 or 17 years of age.
It does not appear from the case, that the pauper, after the death of his father, had any other guardian than his mother, who was his natural guardian.
Neither the act of 1797, nor the act of 1.801, respecting legal settlements, says one word about a legitimate child deriving a settlememt from its father, or mother, or from both of them, in this State. But the act of 1797 did say, that “ every bastard child shall be deemed and adjudged to be settled in the town or place of the last legal settlement of his or her mother.”
The act of 18Í7 says, “legitimate children shall have the settlement of their parents.”
But it is not to be inferred from this, that a legitimate child, before 1817, could not, in this State, derive a settlement from its father or mother, according to the principles of the common law.
I entertain no doubt on this subject. Every legitimate child born after 1797, and before 1817, who was not twenty-one years of age, and was not emancipated, and whose parents had a legal settlement in this State, under the act of 1797, or the act of 1801, did derive a settlement from his parents, according to the common law; that is, from his father; or, if he be dead, then from his mother — she having acquired a new settlement by residence ; and not by marriage.
cf A man settled in St. Katharine’s, married, and had six children born there, and died; after his death, the widow went into the parish of St. George with her six children, and rented a house at £12 a year, and lived in it with her children four months. The single question was, whether the children should be settled where their father was last settled, or have a settlement with the mother in the parish of St. George. And the whole Court were of opinion that the six children were settled in the parish of St. George, where the mother’s last settlement was; and by Parker, C. J. There is no distinction between the settlement of the children with their father or mother; for they are as much her’s as the father’s, and nature obliges her as much as the father to to provide for them — so does the law; and every argument that holds for their settlement with the fa
What is said above, is recognized as law, in the case between the parishes of Paulsbury and Woodon, 2 Strange, 746; though in this case, the Court said, “if it had been res integra, they should have doubted whether a settlement, gained under the head of the family, could be divested by a derivative one from the inferior.”
But in the case of Dedham vs. Natick, 16 Mass. 135" court="Mass." date_filed="1819-10-15" href="https://app.midpage.ai/document/inhabitants-of-dedham-v-inhabitants-of-natick-6404858?utm_source=webapp" opinion_id="6404858">16 Mass. Rep. 135, Wild J. says, “Notwithstanding the doubt expressed by the Court, in the case last referred to, (between Paulsbury and Woodon J I think the English decisions are conformable to the general principle, in respect to derivative settlements. The mother, after the death of the father, remains the head of the family. She has the like control over the minor children, as he had when living. She is bound to support them, if of sufficient ability; and they cannot, by law, be separated from her.
“ These considerations appear to me sufficient to relieve the English decisions from all doubt, and to show that the law here was the same as it was in England. It did not there depend on the provisions of any act of Parliament; but on the principles of the common law.”
In the case between Bozrah and Stonington, 4 Con. Rep. 373, Hosmer, Ch. J. says, “The settlement of the pauper, during his minority, and until he has become emancipated, equally follows that of the father, and that of the mother, acquired in her own right. If of sufficient ability, the obligation of a mother to provide for her children is the same as that of the father; and hence, on the same principles, a settlement is indifferently derived from either.”
We see by the authorities quoted and referred to, that a minor may derive a settlement from the last settlement of
A child is not emancipated by separation from his parent, and therefore follows the parent’s settlement, as part of his family, until it — 1, is of age — 2, has married — -3, has gained a settlement for himself — 4, or has contracted a relation inconsistent with the relation of parent and child ; and by which, therefore, the parent loses all authority over him. — Rex vs. The Inhabitants of Edgworth, 3 T, R. 353.— Rex vs. Inhabitants of Wetton cum Twambrooks, Id. 355(See 14 Petersdorff, 441, n.)
A boy was hired by the week, and served as a weekly servant for two years, after which he obtained his own living by mole-catching, and occasionally visited, but never resided with his father’s family; nor did his father exercise any control over him. He was held not to be emancipated, but to follow his father’s settlement, acquired during his minority. — Rex vs. Wilmington, 5 B. & A. 523.
A daughter was separated from her father at the age of four years; she lived with, and was maintained by her grandfather, and entirely supported by him until his death, when she was seventeen. The grandfather devised the residue of his estate in trust, to pay the interest to his wife for life, who was thereout to maintain and educate this girl; and after the wife’s decease, if during the girl’s minority, the interest was to be applied to maintain and educate her; and upon her attaining twenty-one, the principal to be paid to her; or, in case of her death, to her issue. The Court held her not to be emancipated during her minority by these circumstances; for this separate provision could not deprive the parent of the right to the care and custody of his child, nor could it relieve him from the duty of maintaining her; and there can be no doubt, that while under twenty-one, she would follow her father’s settlement.—Rex vs. Uckfield, 5 M. &. S. 214.—(See 14 Petersd. 318.)
In the above case, 4 Con. Rep. 373, Hosmer Ch. J. says,
The pauper in this case was only 16 or 17 years of age, when his mother gained her new settlement in Newbury; and he was not married till a number of years afterwards. And before his mother’s new settlement, he had gained no settlement for himself, nor contracted any relation inconsistent with the relation of parent and child, by which hi's mother lost her parental control over him.
This being true, it cannot be said he was emancipated, and could not derive a settlement from the new settlement of his mother. His being married a number of years af-terwards, could not have a retroactive operation, and deprive him of his newly acquired settlement. His living with Iris uncle, while his mother was gaining her new settlement, and several years afterwards, is no evidence to show that he was emancipated. It is not necessary to decide, what would be the effect, if the pauper was under guardianship, when his mother was gaining her new settlement ; for the case does not show that there was any guardian appointed.
On.the whole, I am satisfied, that the pauper, mentioned in this case, was never emancipated, before his mother acquired her new settlement in Newbury, by residing there one year without being warned out of town; and that he derived a settlement from that new settlement of his mother in said Newbury in the year 1815, which appears to be his last legal settlement in this State, to which he ought to have been removed. The said order removing him from Bradford to Lunenburgh is erroneous, and must be quashed.
Dissenting Opinion
dissented. — I cannot view this decision as correct, either by the authorities in England, or the rights and powers which our law seems to establish.
The first settlement of the pauper, who is the subject of this controversy, was clearly in Lunenburgh, and so continued to be, till after the decease of his father, and till after he, the pauper, arrived at the age of fourteen years; the age at which he had a right to choose his own guardian.
The question now is, Did he lose that settlement, and become settled in Newbury, by his mother’s leaving him at Lunenburgh, and going to Newbury, and residing there a full year, without being warned to depart according to the provision of the statute then in force?
This leads to the consideration of derivative settlements.
In one state of things, applicable to these, all the authorities agree. That is, children, moving with the father, and living as a part of his family, where he gains a new settlement, take that new settlement with the father. So, if they do not live with the father, but are under his control, and are living where, and as he directs, and do not become emancipated from him, it is considered the same as living with him. But, if they gain settlements for themselves, which they may do in various ways after they are seven years of age, in England, by this they lose their primitive settlement, and do not take the newly acquired settlement of the father. So far is this carried in England,
The authorities seem to suppose, that emancipation may take place by the minor’s living away from the control of the father; but I recollect no decision to that effect.— And, on the other hand, a man, coming of age, and moving with’his father, and forming a part of his father’s family while he acquires a new settlement, takes that settlement ; and is not considered as emancipated. But, when of age, he is considered emancipated of course, unless he does continue to be a part of his father’s family. — See 2d Bott, p. 42.
Many cases are cited by the counsel, where it is decided, that children derive from their mother the settlement acquired by her, in her own right, after the decease of her husband.— See 2d Bott, p. 29, and to 33. On the thirty-first page the Court say, “ There is no distinction between the settlement of children with the father or mother; far they are as much her’s as the father’s; and nature obliges her as much as the father to provide for them; so does the law; and every argument that holds for their settlement with the father, holds as to their settlement with the mother.” Something like (his is also expressed in some of the other cases. Yet I find no case, in which it was decided, that children thus take the settlement acquired by the mother, after the father’s death, where the facts are stated at all, but what the facts were, that the children went and resided with the mother as a part of her family, or were in every sense under her control. Where the children had a legal settlement in England at the decease of their father, whether acquired by birth, the parents having no settlement; or whether by taking their father’s settlement; or by taking that of tho mother before her marriage, the father having no settlement; wherever such settlement is lost by their having taken that of their mother, acquired after the decease of the father, it is wheré they remain a
If the reasons, before recited, for children’s taking the after settlement of the mother, are given only in the cases where they remain under her control, and usually remain a part of her family, is it not fairly to be inferred, that, when they do not make a part of her family, and are not under her control, they are considered as emancipated, and do not take her newly acquired settlement ? I must consider this a fair inference, till I discover some one case, in which the children have been adjudged to take the newly acquired settlement of the mother, though they were not a part of her family, nor under her control, when she acquired it, nor afterwards.
We may consider, for a moment, how that reasoning, thus adopted by the Courts in England, applies in this State. Our Probate Act is very particular in its provisions for the settlement of estates. It provides for the appointment of guardians over children till they are fourteen years of age: for the support of children till they are respectively seven years of age, from the estate of the deceas-, ed; and for minors, over fourteen years of age to make choice of their guardians, before the Judge of Probate can make any appointment. When these guardians are appointed, they have the control of the ward ; and must take care of the property, if any: and all the earnings belong, not to the mother, but to the ward. Unless she is appointed guardian, she has no control, against the guardian, either of the person or the property. If she is appointed guardian, she must account for the earnings of the ward the same as if she was not his mother.
The mother of this pauper was never appointed his guardian. She went to Newbury to live among her relations, and carried one or two other children with her. These she had under her control, though she made no attempt to keep house by herself and children. The pauper remained
Now, in what class of cases should this pauper be considered ? Surely not as belonging to his mother’s family, when she gained her settlement in Newbury: for he was in no sense whatever a part of her family ; nor in any degree under her control. — She had no right to such control: She made no attempt to exercise it. He was most clearly emancipated : as much so, as any man, at the age of twenty-one years, becomes emancipated by living no more with, or under the control of his father. The rule is, that a person, having a legal settlement, loses it only by gaining or deriving a new ono. He takes a newly acquired settlement of the father, if not emancipated, and if he has gained none for himself. But, if either emancipated, or acquiring a settlement for himself, he does not take the new settlement of his father. This pauper’s settlement was in Lunenburgh. He does not appear to have gained any other for himself. He became as fully emancipated from his mother, from and after her leaving him at Lunenburgh, and going herself to Newbury, as if he had then been twenty-one years of age. He was as far removed from her legal and actual control.His legal settlement remains at Lunenburgh. This appears to me as plain as any cause we have ever decided. When it first came up in the County Court, we considered it by no means free from difficulty. But I devoted much thought to it there, and came to the result I have now suggested ; and have discovered no view of the case, nor any new authorities, which vary my opinion at all. Yet I must suppose my brethren more correct. They are well agreed in the decision they have made.