Wells v. Westhaven

5 Vt. 322 | Vt. | 1833

The opinion of the Court was pronounced by

Williams, J.

—

The pauper was removed from Wells to Westhaven: it was therefore incumbent on the former ¡town to show a settlement in the latter: for that purpose, •they-rely on the fact that her mother acquired a settlement in the town of Westhaven, (by he.r marriage with Mitchell, in the year 1814; and that her daughter derived a settlement from her in the same town. It appears that the father of the person removed, after the passing of the statute of 1801., in relation to settlements, resided in the town of Middle-bury more than a year, .and that .the pauper was born in that town in the year 180.2- There was no proof that he was warned out, during that residence. This of course gave him a settlement in that town, which was also the settlement of his daughter, unless she acquired a settlement in Westhaven. In the enquiry whether she had thus gained a settlement, we must be governed by the law as it existed previous to the passing of the statute of 1817, as it is not contended ¡that she has acquired any settlement since. Previous to the passing of the latter statute, there was no statute of this.State which directly gave the wife the settlement of her hnsband., or children the settlement of their parents; but a settlement was gained by marriage by construction of law, independent of any statute. Although no provision upon this subject was expressly enacted, yet the principles of the common law, in relation to derivative settlements, were adhered to in this State. The wife and children being incapable of gaining a settlement for themselves, and being dependent for support on the husband and father, who has the control both of their persons and personal services, derive from him his settlement, which they retain until they gain a settlement for themselves in their own right. As the law in relation to derivative settlements depended upon the principles of the common law, and not on any statute regulations, the decisions which have been had in the Courts of common law in England, are authorities on any question upon this subject arising anterior to the session of the Legislature in 1817, the same as upon any other question arising out of the com-1 J ° mon law.

Upon examining these authorities, it will be found that the decisions have been uniform — that although where a father gains a settlement for himself, it is communicated to his minor children, whether living with him or not; and after his death, when the mother, a widow, acquires a new settlement in her own right, this is also communicated to her minor chi[dren; yet a settlement which she acquires by marriage is not communicated to her children by a former husband, but they still retain the settlement of their father. Probably the reason for this distinction was, that the second husband has no legal control over the children of the first husband, is not bound to support them, nor entitled to their services. But whatever may be the reason, the law is so settled, both in England and this country.— Cumner vs. Milton, 2 Salk. 528.—Woodend vs. Paulspury, 2 Ld. Ray. 1473.—Freetown vs. Taunton, 16 Mass. 52.—Dedham vs. Natick, do. 135.

Judge Reeve, to whose memory and whose worth, a just and elegant tribute has been paid by one of my brethren, (4 Vt. Rep. 347) states the law to be the same in Connecticut. — Reeve’s Dom. Rel. 298. Nor is the principle impugned by the decision in the case of Danbury vs. New-Haven, 5 Con. 585, which was so much relied on by the counsel for Wells.

These authorities are decisive of the case before us, unless it should be considered that the pauper gained a settlement in Westhaven by her residence there for more than a year without being warned out. This will depend upon the decision of the question whether she was liable to be warned out by virtue of the statute of 1801. It appears that she went with her mother to Westhaven, to reside in the family of her step-father, Mitchell, being then only twelve years of age; and may be considered as going there for education.

An infant gains no settlement in his own right, until emancipated from the family of the father or mother.— Emancipation is defined to be contracting a new relation inconsistent with being part of the family. There is nothing in the case which shows that the pauper was thus emancipated. The statute which provided for warning out persons moving into and residing in any town, could have contemplated only those who were at liberty to act for themselves, or were emancipated from the family of their father or mother, and never was intended to apply to infants, who, though destitute of parents, went into a town for education, or those who went for the same purpose under the care & protection of a parent of friend. The pauper, under the circumstances in which she went to Westhaven, was not liable to be warned out of town, nor did she acquire a settlement by her residence there without being warned. She was living with Mr. Mitchell, who was quasi a guardian, for the purpose of education only.

Harmon & Royce, for Wells. Kellogg & Ormsbee, for Westhaven.

There was formerly a statute in Massachusetts similar to our statute of 1801, and it has been decided in that State, that it was not necessary to warn out slaves, servants, or minors, to prevent their gaining a settlement, or an illegitimate child, who, at the age of eleven years, was abandoned by her mother, and left her, and resided in another town until long after she was of age, but that the child retained the settlement of her mother.—Winchendon vs. Hatfield, 4 Mass. 123.—Somerset vs. Dighton, 12 Mass. 383.

The result to which we have arrived, from a consideration of the case, is, that the pauper has gained no settlement in Westhaven, and was unduly removed.

The judgement of the County Court is therefore affirmed.