Town of Bethlem v. Town of Roxbury

20 Conn. 298

• Court: Supreme Court of Connecticut
• Decided: July 15, 1850
• Status: Published

Opinions

Ellsworth, J.

The paupers in question are the legitimate children of Sheldon Bishop, and have never had a settlement in this state, in their own right. Their settlement will follow that of their father. Their father was born in Stamford, in the state of New-York, of Esther A. Lucas, an unmarried woman, then living in said town of Stamford; but she had never gained a settlement in that state, and had never lost her settlement by birth, which she had in the town of Rox-bury, in this state.

In the argument of the case, the counsel for both parties have proceeded upon the ground, that in 1811, when Sheldon Bishop was born, the law of New-York was, as to the settlement of a bastard, born in that state, and especially of a mother having no settlement in that state, the same as the common law, viz., that a bastard is settled where born. Several adjudications to this effect were cited from their books, and their correctness was not questioned. No point was made by the counsel but upon this assumption ; so that we have had no occasion to inquire, when, if ever, they have changed the common law, or what construction has been put upon any of their statutes, if they have any, touching the question.

We say then, the bastard child did not take the settlement of its mother, nor did the child, born there, take the settlement of the mother in Connecticut. Had the child been legitimate, it would have been otherwise. This precise question was do adjudged in Wynkoop v. Overseers of Poor, 3 Johns. R. 16. See likewise the other cases cited at the bar. Hence it follows, that Sheldon, when born, was settled in Stamford; and having that settlement, he had no other, at the time of his birth; for he could not have two settlements, one in New-York, and one in Connecticut, at the same time. Within these states, the acquisition of a new settlement in the same or another state, puts an end to a prior one, unless there be some statutory provision to the contrary, as was decided in Middletown v. Lyme, 5 Coon. R. 95. where a settlement in this state was lost, by acquiring a new settlement in New-Hampshire.

So it has been repeatedly held, on the circuit, before and since that case. If a woman settled in Connecticut, marries a man settled in New-York, she loses her settlement here, absolutely ; and so if she acquired a settlement there, in any way, she must re-acquire one here, or she is, if poor, a foreign pauper. The same is true of an illegitimate child. If it is settled by birth in New-York, and comes here, it comes with a settlement, and can be treated like any inhabitant of New-York. And because our law declares that an illegitimate child does not take a settlement by birth ; it has no application where the contrary is true.

It has been urged, that this bastard child, though born in New-York, was born of an inhabitant of Roxbury, and therefore took the mother's settlement in that place. This would be true, had the child been legitimate, as then, it would have had no settlement by birth in Stamford; but being illegitimate, the law of New-York gave it a settlement where born, and having one settlement, it did not then have another; i.e. one by birth in New-York, and one by parentage in Connecticut. This distinction was taken by this court, in Woodstock v. Hooker, 6 Conn. R. 36. where a bastard born in Massachusetts, of a person settled in Woodstock, was held to take the mother’s settlement in Connecticut, because by the statute of Massachusetts, the bastard gained no settlement in Massachusetts by birth.

It has been further said, that at all events, when Sheldvn Bishop returned to Connecticut, the law of Connecticut took effect, and settled him with his mother in Roxbury. For it is said, this would have been the case, if he had been born in Connecticut; and so if the mother should acquire a new settlement, it would be imparted to a minor child ; and therefore her existing settlement in Roxbury should become his, as soon as he comes into the state. But why this? The child comes into Connecticut having a settlement in New-York. When does he throw off that settlement ? He took it by birth, when parentage existed, and in spite of parentage. So long as he lived in New-York, he certainly had no settlement in Connecticut,-not even according to our own law. How then, by passing the line, is the settlement changed ; or is he now settled in Connecticut, ab initio, by parentage ? Had he lived with his mother in Connecticut, he would have taken a new settlement, had she acquired one. But she acquired none ; and no case can be found which has gone beyond the acquisition of a new settlement by the mother.

Our conclusion, therefore, is, that these children have no settlement in the town of Roxbury, but took the settlement of their father in Stamford, where he was born, and has never-gained another settlement.

We advise the superior court, that judgment be rendered for the defendants.

In this opinion Waite, Storrs and Hinman, Js., concurred.