Inhabitants of Dover v. Inhabitants of Brighton , 68 Mass. 482 ( 1854 )

Metcalf, J.

The question in this case arises upon St. 1793, c. 34, § 2, and Rev. Sts. c. 45, § 1, cl. 5, which provide that a citizen of the age of twenty one years, having an estate, the principal of which shall be set at $200, or the income at $12, in the valuation of estates made by assessors, and being assessed for the same for five years successively in the town where he dwells and has his home, shall thereby gain a settlement therein. Under this provision, it has been decided that a citizen cannot acquire a settlement by having an estate, as tenant at sufferance or as tenant at will, of the required value or income, and being assessed therefor five successive years. Templeton v. Sterling, 15 Mass. 253. Southbridge v. Warren, 12 Cush. 292.

It is agreed that the pauper’s father once had a settlement in Brighton, and that the pauper’s settlement is now there, unless his father gained a new one in the town of Newton, by being taxed there five years or more successively for real estate, the principal of which was set in the valuation of estates, made by the assessors of that town, at more than two hundred dollars. But the defendants have not shown by what tenure such estate was held by the pauper’s father, except for one of the years, when he held it under a lease by indenture. We are asked to presume that he held it by a like tenure during the other years of his occupation. This we cannot do, consistently with the rules of evidence. A settlement in Brighton being shown, the legal presumption is, till the contrary is shown, that it continued there. And it is incumbent on the defendants to prove a change of settlement. Oakham v. Sutton, 13 Met. 195. This they have not done ; inasmuch as they have not exhibited any facts from which the court can infer that the father of the pauper held an estate in Newton, more than one year, by a higher tenure than by sufferance or at will.

We expressed no opinion, in Southbridge v. Warren, and we express none now, whether being assessed five years successively for an estate for years would, if duly proved, suffice to confer a settlement. Judgment for the plaintiffs.