Poland, J.
The only question arising upon the facts found [461]*461by the county court, is whether, the father of the pauper had a settlement in the town of Jericho, by derivation from his father, Samuel Brown.
If the father of the pauper had such derivative settlement, then that was the settlement of the pauper, for the case finds that neither the pauper nor his father ever acquired any settlement in their own right in the State. If the father of the pauper had not a settlement, then by another provision of the statute, the pauper took the maiden settlement of his mother in Essex. Samuel Brown, the pauper’s grandfather, had a settlement in Jericho, but before the birth of the pauper’s father, he removed to the' State of Connecticut, where he continued to reside till his death. Both the pauper’s father, and the pauper himself, were born in Connecticut, but afterwards, during the minority of the pauper, removed into this State.
The counsel for the defendants make a question in the outset, that it is not stated in the exceptions that the pauper’s father was the legitimate son of Samuel Brown, which they say was necessary, at all events, in order for him to take his settlement. This is doubtless true as a legal proposition, but the question is rather one of construction upon the bill of exceptions, than one of law. The exceptions do not say, in terms, that the pauper’s father was the son of Samuel Brown, but that the pauper was the grandson of Samuel Brown, and then go on to state the place of his birth, residence, etc. If the defendants had made any question of that sort in the county court, it would undoubtedly have been ineumbeut on the plaintiffs to give some evidence to satisfy the jury that the relation between the father and grandfather of the pauper was legitimate, though strict proof of a marriage is never required in establishing these relationships in pauper cases.
But no question of this sort appearing to have been made, nor any such proof having been required in the county court; what is the fair and reasonable inference to be drawn from this statement of the relationship in the exceptions ? Exceptions are not to stand upon the footing of pleadings, where no intendment is to be made in favor of the party thus setting up his right, but are to be understood in the usual and ordinary sense of common communication, a [462]*462plain statement of the facts for both parties for the court to apply and declare the law arising upon them. Hence, when this relationship is thus stated, it is to be understood as the usual and common relation of that character, which is legitimate, and not the rare and exceptional one of illegitimacy. This same question was raised in Landaff v. Atkinson, 8 N. H. 582, and received the same determination.
But the important question presented is this: A man having a legal settlement in this State, removes into another State, where he has children born, who afterwards come into this State to reside'. Do such children take the settlement of their father in this State, though the father never returns within the State ?
Our statute provides that legitimate children shall follow and have the settlement of their father, etc., but does not contain any provision as to whether this shall apply to children born in the State, or to children born without the State, of parents who may have a settlement in the State. I do not find that any question was distinctly brought before the courts of the State, whether this provision extended to children born out of the State of parents who had a settlement here and had removed, until the case of Lyndon v. Danville, 28 Vt. 809.
In that case the father of the pauper had a settlement in Dan-ville, but removed into Canada, and resided permanently there till his death. The pauper was born in Canada, but came into this State, and the question was whether he took his father’s settlement in Danville. The case was tried before me in the county court, and as the words of the statute were general and unrestricted, I thought it should properly apply to all children of parents having a settlement in this State, wherever they might be born. The case was taken before the supreme court on exceptions, and twice argued, when the judgment was reversed, but the court were not unanimous in the decision. Ch. J. Redeield sustained the view taken by the county court, while Judges Ishawc and Bennett held that the pauper’s father having removed out of this government, and become permanently domiciled in a foreign country, his children born there were in a legal sense aliens, and that for that reason they could not derive any settlement from their father. Judge ¡Bennett, in his opinion, strongly inti[463]*463mates that the father himself, if he had returned into the State, would not have regained his former settlement. Neither of the judges who made the decision in that case, suggest that the subsequent removal of the father into the State would have given any settlement to the son, and indeed, the grounds of their decision preclude the idea that the father’s return would make any difference.
In the first of the cases thus cited it appears affirmatively, that the father never did return into the State, and in both the others there is nothing said of any return of the father. I think it quite probable that this opinion was affected to some extent, by the fact that the case of Lyndon v. Danville was then before the court, and by the division existing among the members of the court upon the question there involved.
The next year the case of Waterford v. Fayston, 29 Vt. 530, came up. In that case the father of the pauper had a settlement in this State, but removed into the State of New Hampshire, [464]*464where he married, and where the pauper was born. The father then abandoned his wife and child, who returned into this State. Many years after the father returned into this State. The case, as reported, does not say whether it was during the minority of the pauper, but my recollection is, from having tried the case in the county court, that it was not.
It was held in that case, that the pauper took a derivative settlement from her father in this State.
Free access — add to your briefcase to read the full text and ask questions with AI
Poland, J.
The only question arising upon the facts found [461]*461by the county court, is whether, the father of the pauper had a settlement in the town of Jericho, by derivation from his father, Samuel Brown.
If the father of the pauper had such derivative settlement, then that was the settlement of the pauper, for the case finds that neither the pauper nor his father ever acquired any settlement in their own right in the State. If the father of the pauper had not a settlement, then by another provision of the statute, the pauper took the maiden settlement of his mother in Essex. Samuel Brown, the pauper’s grandfather, had a settlement in Jericho, but before the birth of the pauper’s father, he removed to the' State of Connecticut, where he continued to reside till his death. Both the pauper’s father, and the pauper himself, were born in Connecticut, but afterwards, during the minority of the pauper, removed into this State.
The counsel for the defendants make a question in the outset, that it is not stated in the exceptions that the pauper’s father was the legitimate son of Samuel Brown, which they say was necessary, at all events, in order for him to take his settlement. This is doubtless true as a legal proposition, but the question is rather one of construction upon the bill of exceptions, than one of law. The exceptions do not say, in terms, that the pauper’s father was the son of Samuel Brown, but that the pauper was the grandson of Samuel Brown, and then go on to state the place of his birth, residence, etc. If the defendants had made any question of that sort in the county court, it would undoubtedly have been ineumbeut on the plaintiffs to give some evidence to satisfy the jury that the relation between the father and grandfather of the pauper was legitimate, though strict proof of a marriage is never required in establishing these relationships in pauper cases.
But no question of this sort appearing to have been made, nor any such proof having been required in the county court; what is the fair and reasonable inference to be drawn from this statement of the relationship in the exceptions ? Exceptions are not to stand upon the footing of pleadings, where no intendment is to be made in favor of the party thus setting up his right, but are to be understood in the usual and ordinary sense of common communication, a [462]*462plain statement of the facts for both parties for the court to apply and declare the law arising upon them. Hence, when this relationship is thus stated, it is to be understood as the usual and common relation of that character, which is legitimate, and not the rare and exceptional one of illegitimacy. This same question was raised in Landaff v. Atkinson, 8 N. H. 582, and received the same determination.
But the important question presented is this: A man having a legal settlement in this State, removes into another State, where he has children born, who afterwards come into this State to reside'. Do such children take the settlement of their father in this State, though the father never returns within the State ?
Our statute provides that legitimate children shall follow and have the settlement of their father, etc., but does not contain any provision as to whether this shall apply to children born in the State, or to children born without the State, of parents who may have a settlement in the State. I do not find that any question was distinctly brought before the courts of the State, whether this provision extended to children born out of the State of parents who had a settlement here and had removed, until the case of Lyndon v. Danville, 28 Vt. 809.
In that case the father of the pauper had a settlement in Dan-ville, but removed into Canada, and resided permanently there till his death. The pauper was born in Canada, but came into this State, and the question was whether he took his father’s settlement in Danville. The case was tried before me in the county court, and as the words of the statute were general and unrestricted, I thought it should properly apply to all children of parents having a settlement in this State, wherever they might be born. The case was taken before the supreme court on exceptions, and twice argued, when the judgment was reversed, but the court were not unanimous in the decision. Ch. J. Redeield sustained the view taken by the county court, while Judges Ishawc and Bennett held that the pauper’s father having removed out of this government, and become permanently domiciled in a foreign country, his children born there were in a legal sense aliens, and that for that reason they could not derive any settlement from their father. Judge ¡Bennett, in his opinion, strongly inti[463]*463mates that the father himself, if he had returned into the State, would not have regained his former settlement. Neither of the judges who made the decision in that case, suggest that the subsequent removal of the father into the State would have given any settlement to the son, and indeed, the grounds of their decision preclude the idea that the father’s return would make any difference.
In the first of the cases thus cited it appears affirmatively, that the father never did return into the State, and in both the others there is nothing said of any return of the father. I think it quite probable that this opinion was affected to some extent, by the fact that the case of Lyndon v. Danville was then before the court, and by the division existing among the members of the court upon the question there involved.
The next year the case of Waterford v. Fayston, 29 Vt. 530, came up. In that case the father of the pauper had a settlement in this State, but removed into the State of New Hampshire, [464]*464where he married, and where the pauper was born. The father then abandoned his wife and child, who returned into this State. Many years after the father returned into this State. The case, as reported, does not say whether it was during the minority of the pauper, but my recollection is, from having tried the case in the county court, that it was not.
It was held in that case, that the pauper took a derivative settlement from her father in this State.
The opinion was pronounced by the Chief Justice, but it is very evident that he was not prepared to acquiesce in the ground upon which Lyndon v. Danville had been decided by the other members of the court, and instead of distinguishing the cases upon the ground that the pauper in the one case was born in one of the States of the Union, and in the other in a foreign country, and therefore an alien, he repudiated that distinction, and thought the cases should stand alike in that respect. But he put the case upon the ground, that where the father removed from the State, whether to another State or a foreign country, his settlement was suspended thereby and would not revive, or be communicated to his children, unless he should subsequently return into the State, and that if he did return into the State, it would have the same effect in both cases.
The same year of this decision arose the case of Albany v. Derby, in Orleans County. In that case the pauper’s father had a settlement in this State, and removed into Canada, where he married, and where the pauper was born, and subsequently both the father and the pauper came into this State to reside. This case was also tried before me in the county court, and relying upon the opinion of the Chief Justice in Waterford v. Fayston, and perhaps with some lingering attachment to my own original opinion in Lyndon v. Danville, it was decided in the county court that the pauper took the settlement of her father in this State.
This case was taken to the supreme court and decided on the last circuit.* The judgment of the county court was reversed, and it was decided upon the ^authority of Lyndon v. Danville, that the pauper being an alien born, could derive no settlement from her father in this State, and that the case was not altered by the [465]*465fact that her father had returned into the State. This was held, not so much upon the ground of the inherent soundness of that decision, as that upon a branch of the law so purely artificial and arbitrary as the settlement of paupers, stability and uniformity of decision were more to be desired than anything else.
Taken in connection with the decision and the opinions of the judges in Lyndon v. Danville, it is quite manifest that the peculiar grounds on which the judgment in Waterford v. Fayston was placed by the Chief Justice, were not the views of a majority of the court as then constituted, though the decision itself was fully concurred in by all. The case of Albany v. Derby seems also to have wholly negated the idea, that the derivative settlement of the child here depends wholly upon the return of the father into the State.
I do not find that the doctrine of a suspension of the settlement so that it could not be communicated to the child until the return of the father into the State, was ever sanctioned by any judicial decision, or ever advanced from the bench in any case, till stated in Londonderry v. Andover by Judge Isham, and more distinctly laid down by the Chief Justice in Fayston v. Waterford. What is said in both of those eases on that subject was not necessary to the decision of those cases, and we think is not to be regarded as the basis of the judgment of the court, and both eases were undoubtedly correctly decided. This notion of suspension is wholly in conflict with the cases cited above from Massachusetts, and several other cases in that State.
In the case of Landaff v. Atkinson, 8 N. H. 532, above cited, the very point of such a suspension was made, and the remarks of Upham, J., who gave the judgment of the court in that case, are so appropriate that I quote them at- length. “A farther objection taken is, that while the father was without the State his residence was suspended, so that during such period he could not communicate a settlement to his children. Were tho settlement suspended it would perhaps be attended with this effect; but we do not conceive the settlement to be suspended. The individual is placed merely under such circumstances that he and his children born to him without the State, can not enforce a claim for support while absent. The fact of their settlement is in np [466]*466way altered by their absence, or any consequences arising from it, except the want of means .to enforce their claim. The right exists, not as a question of jurisdiction, but is a mere fact of descent, and avails to the pauper and his children on their return to the State, precisely as though they had never left it.”
We fully concur in the views of the New Hampshire court in that case.
We think it may now be regarded as fully settled, that children born in other States, of parents who have a settlement in this State, on coming into this State take such settlement themselves by derivation, whether the parent whose settlement they thus take ever returns into the State or not. And that it is also now settled in this State, that a child born in any foreign State, of a parent who has removed from this State, and becomes permanently domiciled in such foreign State, having a settlement in this State at the time of removal, will not, on coming into this State, take the settlement of such parent, even if the parent also returns. *
The decision below, being in accordance with what we deem the correct rule of law upon the facts, is affirmed.
See 30 Vt. 718.