Inhabitants of Lee v. Inhabitants of Lenox , 81 Mass. 496 ( 1860 )

Metcalf, J.

The single question in this case is, whether Isaac Newbury, father of the pauper, James Newbury, had a legal settlement in Lenox on the 23d day of May 1838. The court are of opinion that he had, and that he acquired it in the twelfth mode provided in St. 1793, c. 34, § 2, Rev. Sts. c. 45, § 1, and Gen. Sts. c. 69, § 1, which is this: “ Any person of the age of twenty one years, being a citizen of this or any other of the United States, who shall reside in any town within this state for the space of ten years together, and pay all state, county, or town taxes, duly assessed on his poll or estate, for any five years within said time, shall thereby gain a settlement in such town.”

Isaac Newbury moved into Lenox, with his family, in May 1823; and the defendants do not deny that he was then a citizen of this or of some other of the United States, and was twenty-one years old. He subsequently resided there ten years together, and more, unless the continuity of his residence was broken by his leaving the town some time in the summer of 1828, and remaining absent therefrom till the latter part of May 1829, when he returned. He left his wife and children together in a house which he had hired; he went away for a temporary purpose only, with no intention of abandoning his residence, but intending to continue and retain it; he returned with the same intention, and afterwards resided in the town until May 23d 1838 — how much longer, we are not informed. .

On these facts, the continuity of his residence in Lenox was not interrupted. He had resided there ten years together, within the meaning of the word “reside” in the statutes above cited, before May 23d 1838, to wit, in May 1833; and he acquired a settlement there when he paid his tax for the year 1835, he then having done all that the law required of him to acquire it. The movements of his wife, in his absence, and without his consent or knowledge, could not change nor interrupt his legal residence.

This question of residence has been recently discussed in Warren v. Thomaston, 43 Maine, 406, and Worcester v. Wilbraham, 13 Gray, 586, and we need not refer to any other cases.

Exceptions overruled.