20 Conn. 298 | Conn. | 1850
Lead Opinion
The paupers in question are the legitimate children of Sheldon Bishop, and have never had a settlement in this state, in their own right. Their settlement will follow that of their father. Their father was born in Stamford, in the state of New-York, of Esther A. Lucas, an unmarried woman, then living in said town of Stamford; but she had never gained a settlement in that state, and had never lost her settlement by birth, which she had in the town of Rox-bury, in this state.
In the argument of the case, the counsel for both parties have proceeded upon the ground, that in 1811, when Sheldon Bishop was born, the law of New-York was, as to the settlement of a bastard, born in that state, and especially of a mother having no settlement in that state, the same as the common law, viz., that a bastard is settled where born. Several adjudications to this effect were cited from their books, and their correctness was not questioned. No point was made by the counsel but upon this assumption ; so that we have had
We say then, the bastard child did not take the settlement of its mother, nor did the child, born there, take the settlement of the mother in Connecticut. Had the child been legitimate, it would have been otherwise. This precise question was do adjudged in Wynkoop v. Overseers of Poor, 3 Johns. R. 16. See likewise the other cases cited at the bar. Hence it follows, that Sheldon, when born, was settled in Stamford; and having that settlement, he had no other, at the time of his birth; for he could not have two settlements, one in New-York, and one in Connecticut, at the same time. Within these states, the acquisition of a new settlement in the same or another state, puts an end to a prior one, unless there be some statutory provision to the contrary, as was decided in Middletown v. Lyme, 5 Coon. R. 95. where a settlement in this state was lost, by acquiring a new settlement in New-Hampshire.
So it has been repeatedly held, on the circuit, before and since that case. If a woman settled in Connecticut, marries a man settled in New-York, she loses her settlement here, absolutely ; and so if she acquired a settlement there, in any way, she must re-acquire one here, or she is, if poor, a foreign pauper. The same is true of an illegitimate child. If it is settled by birth in New-York, and comes here, it comes with a settlement, and can be treated like any inhabitant of New-York. And because our law declares that an illegitimate child does not take a settlement by birth ; it has no application where the contrary is true.
It has been urged, that this bastard child, though born in New-York, was born of an inhabitant of Roxbury, and therefore took the mother's settlement in that place. This would be true, had the child been legitimate, as then, it would have had no settlement by birth in Stamford; but being illegitimate, the law of New-York gave it a settlement where born, and having one settlement, it did not then have another; i.e. one by birth in New-York, and one by parentage in Connecticut. This distinction was taken by this court, in Woodstock v. Hooker, 6 Conn. R. 36. where a bastard born in Massachusetts, of a person settled in Woodstock, was held to take the
It has been further said, that at all events, when Sheldvn Bishop returned to Connecticut, the law of Connecticut took effect, and settled him with his mother in Roxbury. For it is said, this would have been the case, if he had been born in Connecticut; and so if the mother should acquire a new settlement, it would be imparted to a minor child ; and therefore her existing settlement in Roxbury should become his, as soon as he comes into the state. But why this? The child comes into Connecticut having a settlement in New-York. When does he throw off that settlement ? He took it by birth, when parentage existed, and in spite of parentage. So long as he lived in New-York, he certainly had no settlement in Connecticut,-not even according to our own law. How then, by passing the line, is the settlement changed ; or is he now settled in Connecticut, ab initio, by parentage ? Had he lived with his mother in Connecticut, he would have taken a new settlement, had she acquired one. But she acquired none ; and no case can be found which has gone beyond the acquisition of a new settlement by the mother.
Our conclusion, therefore, is, that these children have no settlement in the town of Roxbury, but took the settlement of their father in Stamford, where he was born, and has never-gained another settlement.
We advise the superior court, that judgment be rendered for the defendants.
Dissenting Opinion
dissented, remarking to the following effect.
The decision of this case, if I understand it, is predicated entirely upon the assumption that when Sheldon Bishop, the father of the paupers in question, was born, the law of the state of New-York was so, that a bastard child was legally settled in the town wherein he was born, and not in the place of its mother’s settlement. Such was not proved not admitted to have been the law of that state, as I believe. The\
We were referred, on the argument, to be sure, to what was said by Kent, Ch. J., in the case of Wynkoop v. The Overseers of New-York, 3 Johns. R. 15. But that distinguished judge cannot be understood, I think, to have meant, in face of the statute above recited, that the law of the state of New-York did not recognize a bastard’s settlement by parentage, as recognized in this state ; but only, that, as the mother had no settlement there, the courts in that state, in a bastardy prosecution, would not regard either a foreign settlement or the laws of another state, but would treat the bastard as settled where born, pro hac vice, so as to enable that town or city, to procure an order of filiation upon the putative father. Unless this was so, there could be no order of filiation at all, and no remedy at all. If then, the law of this state is to be our rule of judgment, or if the law of the state of New-York, where the bastard was born, was not in conflict with it, I am sure that the decision of this court, in the case of Woodstock v. Hooker, 6. Conn. R. 35. is decisive of this. It was there holden, that a bastard born in Massachusetts, of a mother having a settlement in this state, takes the settlement of the mother.
But if the law of the state of New-York on this subject was, as it was assumed to have been, still I am persuaded, that when the mother of Sheldon Bishop returned, with her illegitimate child, into this state, he became settled with her in the town of Roxbury, which was her place of settlement. I
date relied upon in support of a contrary doctrine, is that of Middletown v. Lyme, 5 Conn. R. 95. If that case affects this, it is only by a very loose analogy. The person whose settlement was there in question, had vol- untarily renounced his domicil and his settlement in this state, and by his own agency, had acquired another in New-Hamp- shire. It stands alone ; and moreover, I think, the authority of it has been repealed, by sec. 20. ch. 2. of our Revised Statutes, entitled, “ An act providing for the support of pau- pers by which, it is now provided, in opposition to the doc- trine of that case, that a person returning into this state from another, where he has gained a settlement, shall be chargea- ble to the town in this state, where he had his last legal settle- ment. The feudal and repulsive doctrine
of the common law, that a bastard child has no parent, no protector, not even a mother, has never found favour in this state. Here, an illegitimate child has a settlement by parentage, and may inherit its mother’s estate; and it is an established rule of our law, founded upon the natural relationship of parent and child, that Litchfield, July, 1830. Beihiem V.
Although the place of birth is, in all cases, prima facie, the place of a child’s settlement, whether it be legitimate or illegitimate, yet the place of the parent’s settlement, when discovered, will always supersede it; and I have not discovered any plausible reason why the present case should be made an exception to this rule. Newtown v. Stratford, 3 Conn. R. 600. Woodstock v. Hooker, 6 Conn. R. 35. If the mother would have communicated to this child, Sheldon Bishop, a new settlement, which she might have gained in Roxbury, after her return to this state, it seems to me, that it must be true that she communicated to him the settlement which she already had in that town.
Judgment for defendants.
