Brower v. Smith

Supreme Court of New Jersey

Brower v. Smith

46 N.J.L. 72

DecidedFebruary 15, 1884

StatusPublished

This text of 46 N.J.L. 72 (Brower v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brower v. Smith, 46 N.J.L. 72 (N.J. 1884).

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Opinion

The opinion of the court was delivered by

Dixon, J.

The orders brought up for review in this case are right. The general rule is that the settlement of minor children follows that of their father. Shrewsbury v. Holmdel, 13 Vroom 373. The application of this rule is not prevented by the fact that the minor is separated from its parents’ household, (Alexandria v. Bethlehem, 1 Harr. 119, 122, 123; Adams v. Foster, 20 Johns. 452,) nor by its residing in another state from that in which its parent lives and is legally settled, (Great Barrington v. Tyringham, 18 Pick. 264;) and on this subject foreign countries stand in the same relation to us as sister states. Alexandria v. Kingwood, 3 Halst. 370. This pauper, therefore, being only eleven years old in 1869,. when her father gained a settlement in Marlboro, that township became then also the place of her legal settlement.

But if it were held that by being left in Ireland when her parents came to this country, she ceased to be a member of their family, and for that reason their settlement in 1869 was not then communicated to her, yet when, in 1872, her father brought her to his home in Marlboro, and she remained there “ as one of his ■ family,” according to the agreed case, no circumstance was wanting, the lack of which might throw doubt upon the application of the general rule. She was a minor, unemaucipated, and a member of her father’s household.' [75]*75Save by derivation, she then had, in the eye of our law, no settlement anywhere, for her former settlement in Ireland was deemed no settlement at all. Alexandria v. Kingwood, supra. Nothing, therefore, existed which could possibly interfere with the communication to her of her father’s settlement.

It remains to inquire whether she has since gained any other settlement.

The only law under which it is claimed she could have done so is the last clause in the first section of our “Act for the settlement and relief of the poor,” (Rev.,p. 834,) originally passed March 11th, 1774, (Pat., p. 26,) which provides “ that all mariners coming into this state, and having no settlement in this nor any of the neighboring states, and every other healthy person, directly coming from Europe into this state, shall be legally settled in the township in which he or she shall first settle and reside for the space of one year.” If it be conceded that Delia Gil martin was a healthy person, directly coming from Europe into this state, and that she first settled and resided for the space of a year in Raritan township, and so, by the strict letter of this statute, would gain a. settlement there, still I think she is not within the spirit of the law. The law does not appear to me to have been designed to embrace persons having a legal settlement in New Jersey before the occurrence of the facts which, by this provision, would give a settlement. If the statute were literally enforced, Jerseymen temporarily visiting Europe would, on their return thence, obtain a new settlement in the township where they first happened to live a year. This was not tlie purpose of the law. Its design was to indicate how immigrants not otherwise settled might become so. This interpretation is indeed opposed by the circumstance that the same clause, in referring to mariners, expressly limits its own operation to those having no settlement in this or any neighboring state, and such express limitation being omitted as to immigrants, a limitation of similar effect ought not ordinarily to be implied; but since the opposite interpretation leads to results so inadmissible, I think this rule of construction must,. [76]*76pro hao vice, be disregarded. In the poor law of 1758, (Allinson, p. 222,) where, I believe, mariners and other healthy persons arriving from beyond sea are first mentioned together as a special class, they are all placed upon the same footing, and probably it was only because mariners coming into this state often had already a legal settlement here or in some neighboring state, and European immigrants very rarely had such a settlement, that any difference in express provisions ■concerning them was suggested. Notwithstanding this difference, immigrants settled here without recourse to this enactment are not included within its spirit and operation.

The pauper’s derivative settlement in Marlboro township therefore remains, and the orders brought up should be affirmed.

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The opinion of the court was delivered by

Dixon, J.

The orders brought up for review in this case are right. The general rule is that the settlement of minor children follows that of their father. Shrewsbury v. Holmdel, 13 Vroom 373. The application of this rule is not prevented by the fact that the minor is separated from its parents’ household, (Alexandria v. Bethlehem, 1 Harr. 119, 122, 123; Adams v. Foster, 20 Johns. 452,) nor by its residing in another state from that in which its parent lives and is legally settled, (Great Barrington v. Tyringham, 18 Pick. 264;) and on this subject foreign countries stand in the same relation to us as sister states. Alexandria v. Kingwood, 3 Halst. 370. This pauper, therefore, being only eleven years old in 1869,. when her father gained a settlement in Marlboro, that township became then also the place of her legal settlement.

But if it were held that by being left in Ireland when her parents came to this country, she ceased to be a member of their family, and for that reason their settlement in 1869 was not then communicated to her, yet when, in 1872, her father brought her to his home in Marlboro, and she remained there “ as one of his ■ family,” according to the agreed case, no circumstance was wanting, the lack of which might throw doubt upon the application of the general rule. She was a minor, unemaucipated, and a member of her father’s household.' [75]*75Save by derivation, she then had, in the eye of our law, no settlement anywhere, for her former settlement in Ireland was deemed no settlement at all. Alexandria v. Kingwood, supra. Nothing, therefore, existed which could possibly interfere with the communication to her of her father’s settlement.

It remains to inquire whether she has since gained any other settlement.

The only law under which it is claimed she could have done so is the last clause in the first section of our “Act for the settlement and relief of the poor,” (Rev.,p. 834,) originally passed March 11th, 1774, (Pat., p. 26,) which provides “ that all mariners coming into this state, and having no settlement in this nor any of the neighboring states, and every other healthy person, directly coming from Europe into this state, shall be legally settled in the township in which he or she shall first settle and reside for the space of one year.” If it be conceded that Delia Gil martin was a healthy person, directly coming from Europe into this state, and that she first settled and resided for the space of a year in Raritan township, and so, by the strict letter of this statute, would gain a. settlement there, still I think she is not within the spirit of the law. The law does not appear to me to have been designed to embrace persons having a legal settlement in New Jersey before the occurrence of the facts which, by this provision, would give a settlement. If the statute were literally enforced, Jerseymen temporarily visiting Europe would, on their return thence, obtain a new settlement in the township where they first happened to live a year. This was not tlie purpose of the law. Its design was to indicate how immigrants not otherwise settled might become so. This interpretation is indeed opposed by the circumstance that the same clause, in referring to mariners, expressly limits its own operation to those having no settlement in this or any neighboring state, and such express limitation being omitted as to immigrants, a limitation of similar effect ought not ordinarily to be implied; but since the opposite interpretation leads to results so inadmissible, I think this rule of construction must,. [76]*76pro hao vice, be disregarded. In the poor law of 1758, (Allinson, p. 222,) where, I believe, mariners and other healthy persons arriving from beyond sea are first mentioned together as a special class, they are all placed upon the same footing, and probably it was only because mariners coming into this state often had already a legal settlement here or in some neighboring state, and European immigrants very rarely had such a settlement, that any difference in express provisions ■concerning them was suggested. Notwithstanding this difference, immigrants settled here without recourse to this enactment are not included within its spirit and operation.

The pauper’s derivative settlement in Marlboro township therefore remains, and the orders brought up should be affirmed.

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Bluebook (online)

46 N.J.L. 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brower-v-smith-nj-1884.

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