23 Vt. 328 | Vt. | 1851
The opinion of the court was delivered by
That the father of the pauper, by his continued residence in Glover from February, 1838, to June, 1845, acquired for him self and his minor children a settlement in that town is not controverted. But it is denied, that the pauper took a derivative settlement from the settlement of the father, thus acquired in Glover, inasmuch as he became of agelong before the father acquired his settlement. Upon the pauper becoming of age, he was capable of acquiring a settlement in his own right; but his continuance in Glover, after his arriving at majority, was not of sufficient duration to give him a settlement there sui juris. For he could not connect this latter residence with that during his minority, so as to gain a settlement in his own right, by residence. This principle is settled by the case of Brook
It is, however, said, that the doctrine of emancipation should be repudiated, and that, under our statute, children of full age, as well as minors, should be held to take derivatively the settlement of the father, until they have acquired one in their own right, whether, or not, they continue members of the father’s family and under his control. No authorities are produced to sustain this proposition, and it is believed, none are to be found, which go to that extent. If the court sustain this proposition, it must be upon the ground, that it is required by the language of the statute. But we are inclined to think, that the statute requires no such construction ; and in this opinion we are sustained by the case of Springfield v. Wilbraham, 4 Mass. 493, which was founded upon a statute precisely like our statute of 1817. It fully recognizes the common law doctrine of emancipation, and that doctine was applied to the case.. And in a recent case, which came before this court in the county of Franklin, but not yet reported, it was held, in the case of a female pauper of full age, who had resided mainly with her father, as a part of his family, but who had, during the time, labored some for others and on her own account, that she was emancipated and consequently did not take a derivative settlement from her father. We cannot believe, it was the intention of the legislature, that the statute should receive the construction contended for by the plaintiff.
This brings us to the question, was the pauper emancipated, before his father acquired a settlement in Glover 1 and if so, at what time ? for if it was immediately after the pauper’s removal from B arton, and prior to June, 1838, his subsequent residence in Glover was sufficient to give him a settlement there. Hence it is urged by the plaintiff, that, if the pauper was emancipated at all, it was by his marriage, and that this might have been prior to June, 1838. It is a sufficient answer to this suggestion, that the time of his marriage does not appear; and if the marriage were as early as June, 1838, and the party would avail himself of that fact, he should have brought it upon the record, that it might clearly appear, that there was error
But it is claimed, on the part of the defendant, that the pauper, on his arriving at full age, which was in December, 1839, became emancipated in fact and in law. This, we think, does not necessarily follow. We are, however, inclined to hold, that the pauper, upon coming of age, was, prima facie, emancipated. This, presumption is always liable to be rebutted, by showing that the child was not in fact emancipated, but continued to reside in the family of the parent upon the same terms as during his minority. The case does not disclose the terms, upon which the pauper, after his majority, continued to reside with his father; but we must presume, that the county court found the fact, that the pauper was emancipated, before his father gained a settlement in Glover, and upon such finding, the judgment of the county court was fully warranted. Prima facie, the pauper was emancipated upon becoming of full age; and there is nothing in the case to rebut that presumption. He did not reside in Glover long enough after his emancipation, to acquire a settlement in his own right; and he could not, after his emancipation, take derivatively from a settlement subsequently acquired by his father.
The judgment of the county court is affirmed.
