Inhabitants of Taunton v. Inhabitants of Middleborough

53 Mass. 35

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1846
• Status: Published

Opinion

Hubbard, J.

*

In this case it is agreed that the original settlement of the father of the pauper, and of the son, was in the town of Taunton. The settlement of a son is derivative, and follows that of his father, until he gains a settlement of his own. Rev. Sts. c. 45, $ 1, art. 2. And the pauper son, for whose support this action is brought, was an idiot, and therefore not competent, though of age, to gain a settlement for himself, because incapable of volition, of exercising the power of choice ; and not having estate of his own upon which any question can arise, it is clear that his settlement follows that of his father. Upton v. Northbridge, 15 Mass. 237. Therefore the only question is, whether the father gained a settlement in Middleborough ; and this depends upon the single point, whether moneys paid by the town of Taunton to the father, to aid him in support of this child, will prevent his having gained such settlement. The father resided in Middleborough from 1829 till 1844, and during that time paid taxes for ten years. But he likewise, during twelve years of the time, received moneys from the town of Taunton to assist him in supporting his son.

If the father had received the assistance for his own personal relief, the case would come directly within the letter of the decisions in the cases of East Sudbury v. Waltham, 13 Mass. 460; East Sudbury v. Sudbury, 12 Pick. 1; Brewster v. Dennis, 21 Pick. 233; and West Newbury v. Bradford, 3 Met. 428; which give a construction to St. 1793, c. 34, § 1, art. 12.

Does the fact, then, that the aid was furnished to assist the father in the support of the son, present a different case in principle from that where the aid is given for the personal relief of the party applying ? We are of opinion that it does not. The parent is bound to support the son, in whole or in part, according to his ability. Rev. Sts. e. 46, § 5. The son was a member of the family, entirely dependent on the father; and the father was unable to maintain him without assistance; and that assistance was furnished by the plaintiffs. But if the father had applied to Middleborough for aid, when he applied to Taunton, and it had been furnished by Middleborough, Taunton would have been obliged to refund it; the father having gained no settlement in Middleborough. And we are clearly of opinion that aid furnished to the father and intended for him to aid in the support of the son, is, within the spirit of the decisions, and within the meaning of the law, aid furnished to himself. By reason of his own poverty, be could not support his helpless son. He applied for relief. It was a relief to himself; for if he had applied his own means to support his son, then the needed aid must have been applied to himself; and the difference is in the name merely. In Berkeley v. Taunton, 19 Pick. 480, which was assumpsit for expenses incurred in the support of a female pauper m Berkeley, whose husband had gained a legal settlement in Taunton by ten years’ residence, and five years’ payment of taxes, unless the assistance rendered to his wife, (who had continued to reside in Berkeley, after her husband removed to Taunton,) prevented him from gaining such settlement, the court, for the reasons stated, from the facts proved, held that it did not; for the relief was furnished without any application of his, and he was never applied to for payment, nor did it appear that he knew of her being supported as a pauper, or that he was not of sufficient ability to maintain her. But the court add, “ had the support been furnished at his request, it might have presented a quite different question.” Here the son resided with the father, helpless and dependent; the father, not being of sufficient ability, applied for assistance, which he needed. He was, therefore, within the meaning of the law, so far supported by the town of Taunton, while living in the town of Middleborough, as to prevent his gaining a seAlement in Middleborough.

Judgment for the defendants.

In this and the four following cases, the decision was made at April term 1817, at Taunton.