Marden v. City of Boston , 155 Mass. 359 ( 1892 )

Knowlton, J.

The evidence in regard to Michael Callahan was sufficient to warrant a finding that he was dead. In 1867 he went away from Boston, where his wife and children and others of his relatives lived, and, although they have made efforts to learn his whereabouts, they have not heard from him since that time. He had previously made an application to the United States government for a pension, and a pension was granted to him; but the authorities in charge of the Pension Department at Washington have been unable to ascertain where he is, or whether he is dead or alive. These facts, with nothing to control the inferences naturally to be drawn from them, point to his death, and warrant a finding in favor of the plaintiff on this part of the case. Loring v. Steineman, 1 Met. 204, 211. Flynn v. Coffee, 12 Allen, 133. Bowditch v. Jordan, 131 Mass. 321, 323. Stockbridge, petitioner, 145 Mass. 517.

His widow, Catherine Callahan, continued to reside in Boston until October, 1887, and gained a settlement there by virtue of the Pub. Sts. c. 83, § 1, els. 6 and 7. The first part of the seventh clause is as follows: “The provisions of the preceding clause shall apply to married women who have not a settlement derived by marriage under the provisions of the first clause, and to widows.” The argument of the defendant, that widows who have a settlement derived from their former husbands, are not included, is untenable. They were included in the St. of 1874, c. 274, § 1, which is now the sixth clause above quoted, before the passage of the St. of 1879, c. 242, § 2, which is embodied in' the seventh clause.

This last statute was passed after the decision in Somerville v. Boston, 120 Mass. 574, in which it was held that the St. of 1874, c. 274, § 2, did not apply to married women; and the purpose of it was to change the law in regard to married women, and to place them on the same footing in respect to the acquisition of a settlement as widows and unmarried women. It did not take away from widows any rights which had before been given them.

No other questions were raised at the trial, and it follows that the jury were rightly permitted to find that the husband of the pauper went away in 1867 and died; that his wife, Catherine Callahan, having become a widow, gained a settlement in Boston by five years’ residence there, and that the defendant is liable for her support. Exceptions overruled.