Fremont v. Sandown

56 N.H. 300, 1876 N.H. LEXIS 140

• Court: Supreme Court of New Hampshire
• Decided: March 20, 1876
• Status: Published

Opinions

FROM ROCKINGHAM CIRCUIT COURT. The case does not show that Mrs. French and her three children (the oldest five and the youngest three years old) did not constitute one family at the time they were relieved by the overseers of the poor of Fremont, nor that she had other children than the three mentioned in the notice. If inferences were to be drawn, the inference certainly would be that the mother and three young children did constitute one family; and, inasmuch as she was married in 1869, and the oldest child is five years old, there is, to say the least, no ground for inferring that she had other children. In New Boston v. Dunbarton, 12 N.H. 409, the notice was for the support of a parent and her four minor children. It appeared at the trial that she had more than four children who were minors; and the court held the notice insufficient, on the ground that it was left uncertain by the notice which were relieved. No such element of uncertainty was brought into this case at the trial; and I think, upon the authority of this case, and Barnstead v. Strafford, 8 N.H. 142, where it was unnecessary to specify the sums expended for each individual in case several persons constituting one family are supported together, the objections to the notice must be overruled.

The plaintiffs claim that Mrs. French and her children have a settlement in Sandown, derived through Benjamin F. French, the father of the children, from his mother, Polly Jane Hoyt; and the question is, whether, under the statutes in force from 1842 to 1847, — that is, from the time of the marriage to the time when Polly Jane Hoyt attained her majority, — the marriage of a female infant to one who has no settlement in this state precludes her from taking a settlement acquired during that time by her father. The statute was, — "Legitimate children shall have the settlement of their father, if any he has, within this state; otherwise the settlement of their mother, if any she has, until they gain a settlement of their own." Rev. Stats, ch. 65, sec. 1. In Springfield v. Wilbraham, 4 Mass. 495, PARSONS, C. J., says of the Massachusetts statute of 1793, which is identical with our statute above quoted, — "If these words are taken literally, then a son of full age, who had left his father and had become the head and father of his own family, if he had gained no new settlement, would follow any new settlement acquired by his father after the son had left him. This could never have been the intention of the legislature. The object of this provision was to regulate the derivative settlement of legitimate children, who, when emancipated, are no longer in a condition to derive a settlement from their father. It was accordingly held in that state, in Charlestown v. Boston, 13 Mass. 469, that the marriage of a female infant would prevent her taking the after acquired settlement of her mother. The decision is put on the ground that, upon her marriage, the pauper was out of the control of her mother before the settlement of her mother was gained.

I am inclined, though not without some hesitation, to acquiesce in the conclusion of my brethren that this is the right construction of the statute, and that Polly Jane Hoyt did not take the settlement of her father in Sandown, which was not acquired until after her marriage with Edmund M. French.

I cannot say that I should have entertained very much doubt in this case but for the statute of 1868, which provides that a minor, if emancipated, shall not take an after acquired settlement from the parents, and that a minor shall be emancipated, within the meaning of this act, by marriage. Laws of 1868, ch. 1, secs. 16, 17.