Inhabitants of Parsonsfield v. Inhabitants of Kennebunkport

4 Me. 47

• Court: Supreme Judicial Court of Maine
• Decided: April 15, 1826
• Status: Published

Opinion

Mellen C. J.

delivered the opinion of the court at the ensuing November term in Cumberland, as follows:

By the second marriage of the pauper’s mother in 1811, she lost her original settlement in Parsonsfield and gained a new one in Kennebunkport; the pauper being, then about five years of age. The first question is whether she thereby gained a derivative settlement in that town also under the mother; and if she did, second, whether she ever lost it by gaining another. Prior to the statute of 1793, ch. 34, minor children, having the settlement of their mother, did not acquire a new settlement gained by her marriage,.although they removed with her. to the place of such new settlement. Such was the common law. See Freetown v. Taunton 16 Mass. 52, and cases there cited. But that statute altered the common law in this respect, and provided that “legit- “ imate children shall follow and have the settlement of their “ father, if he shall have any within the commonwealth, until "they gain a settlemeijt of their own; but if he shall have none, "they shall in like manner follow and have the settlement of their “ mother, if slie shall have any.” The decision in the case of Plymouth v. Freetown 1 Pick. 197 recognizes, and is founded on this distinction, it is said that that case was submitted without - rgumeut, and that the opinion of the court is briefly given. Still facts of that case are similar to those of the present; and Creasons of the opinion are clearly stated. There seems to lu no reason for questioning its correctness. We do not perceive bow the case of Springfield vs. Willraham, cited by the defendant’s counsel, can have any bearing on this cause. The point there decided was that, upon a father’s gaining a new settlement, a child of full age, voluntarily living with him, does not gain a new settlement within the abovementioned statute of 1793. The case at bar presents no question resembling this in any degree. . We are therefore satisfied that the pauper gained a settlement in Kennehunkport in virtue of her mother’s second marriage. The second question is whether the pauper has lost this settlement by gaining one in Parsonsjield or Cornish in virtue of the statute of 1821, ch. 122. She was at that time about fifteen years of age ; but in the year 1816, she left Keunebunkport and had continued to reside in Parsonsjield and Cornish, “ working out by the week. , In one “ of these towns she resided when the act was passed, engaged in “her usual employment, and continued so to reside until the supplies were furnished.” From the time of her mother’s marriage she continued to live in the family of her father-in-law, and under her mother’s care, till 1816 ; and the case presents no facts shewing the reasons of her leaving this family and going to Par-sonsjield or Cornish, and working out, as mentioned in the statement. Such a practice is very common in all parts of the country. It is true, her father in law was not bound to maintain her ; but no facts appear shewing that his house was not a home for her, so long as she inclined to remain in his family. So that when she went into the country she seems to have, had a home to which she was welcome’, as well as a legal settlement, in Kennebunkport„ The case gives us no grounds on which we are to construe her residence in Parsonsjield and Cornish as any thing more than a temporary one, for purposes of personal convenience or advent-age ; she having the liberty to return to the family of her father in law at her pleasure. Not a fact in the case forbids this conclusion, or even renders it improbable. See St. George v. Deer Isle 3 Greenl. 390. We cannot consider the pauper as having-resided, dwelt and had her homé either in Parsonsfield or Cornish on the 21st oí March 1821, according to the true intent and meaning of the statute before mentioned, passed on that day j and on these grounds the defence fails. It is not necessary to decide whether, upon the facts before us,- the pauper was emancipated by her mother’s second marriage, because, if she was, it is of no importance in this case, unless she gained a settlement in Par-sonsfield or Cornish under the act of 1821 ; and as she did not, her capacity to gain one, could not alter the case. According to the agreement of the parties a default must be entered.