Town of Oxford v. Town of Bethany ( 1848 )

Waite, J.

The only question in this case, is, whether the pauper, at her birth, took the settlement of her father, or that of her mother. f^The rule upon this subject, is, that a"' legitimate child takes the settlement of the father, if he have one; and, in this state, an illegitimate child takes that of the mother,^)

Hosmer, Ch. J.,

in delivering the opinion of the court, in the case of Newtown v. Stratford, says: IjJThe first enquiry is for the place of the father’s settlement, which, by operation of law, is the settlement of the child j| but if the father have no settlement, then that of the mother is communicated ; and this is a rule of law, undisputed, and established by repeated decisions.” 3 Conn. R. 601. And again, in Sterling'v. Plain-field: “ By the English law, as well as our own, the child acquires, by parentage, a settlement with its father.” 4 Conn. R. 116.

Here, the jury have found, that the pauper was the legitimate child of Zebulon Lines; and it is admitted, that the latter was settled in the town of Oxford. It follows, of course, that his child is settled there also, unless there is something in the present case to deliver it from the ordinary operation of the rule.

The circumstance that this was a posthumous child, in our opinion, makes no difference. “ If,” says Burns, “ the father dies before the child is born, yet the child shall be settled where the father was settled, before his death.” 3 Burn’s Just. 27.

But the circumstance mainly relied upon, by the counsel for the defendants, is, the marriage of the mother, after the death of her first husband, by which she acquired a new settlement; and it is insisted, that that settlement was communicated to her child. This would have been undoubtedly so, had the settlement been acquired in her own right, and not by marriage.

The case of New-Haven v. Newtown is relied upon, as showing, that, in this particular, there is no difference. It was, indeed, there holden, that by the law of this state, an illegitimate child takes the settlement of the mother, acquired by marriage.

That decision was founded upon what was considered, by a majority of the court, as a peculiarity in our law, as applicable to the settlement of illegitimate children. In our opinion, the rule does not apply, nor was it intended to apply, to the case of legitimate children.

The late Chief Justice, in delivering the opinion of the court in that case, remarks, that “ as it is now settled in England, that a settlement of the mother, acquired by marriage, will not confer a settlement upon her children born before in lawful wedlock, we do not mean to be understood to say, that we should hold otherwise.” 12 Conn. R. 170. He then proceeded to notice the difference between our law and the common law of England, in relation to illegitimate children, and came to the conclusion, that by the former, an illegitimate child took the settlement of the mother acquired by marriage, as well as one acquired in her own right.

The distinction here made, is substantially the same as now exists in England, by force of a recent statute. 4 & 5 W. 4. c. 76. s. 71. Bv that, it seems, the settlement of illegitimate children under the age of sixteen years, born after the passing of the act, follows the mother’s settlement, acquired by marriage after their birth. But the settlement of the legitimate children of a widow, is not changed, by her second marriage. The Queen v. St. Mary, 4 Adol. & Ellis, N. S. 581. (45 E. C. L. 581.) The King v. Walthamstow, 6 Adol. & Ellis, 301. (33 E. C. L. 84.)

Perhaps the reason for making the distinction may he, that, as illegitimate children can, by the common law, inherit no property, and have no father bound to provide for them, they are necessarily dependent upon their mother alone for support and protection ; and therefore, a man, by marrying her, shall not deprive them of their only protector, and throw them upon the parish for support. If he choose to take her, thus situated, he must take with her the responsibilities resting upon her. But in the case of legitimate children, they are not ordinarily in the same destitute condition ; and therefore, the statute is not made to apply to them.

We are therefore of opinion, that the court below did not err in neglecting to give the instruction to the jury, as claimed by the defendants ; and consequently, we do not advise a new trial.

In this opinion the other Judges concurred, except Ells-worth, J., who was absent.

New trial not to be granted.