Inhabitants of Augusta v. Inhabitants of Kingfield , 36 Me. 235 ( 1853 )

Howard, J. —

It is admitted that the father of the pauper never had a settlement within this State. The pauper would, therefore, “follow and have the settlement” of his mother, if she had any. Statute, 1821, c. 122, § 2, mode 2.

It is admitted that the mother resided with her father, when she was married, in 1815, and that he then had a settlement in Kingfield. But it is not admitted, or proved, that she had a derivative settlement from him; nor does it appear that she acquired a settlement in that town, unless it was gained subsequently to her marriage. It is not material in this case, to inquire where her settlement was, if it were not in the town of Kingfield.

The pauper was born in 1816, and before that time, his father had left the mother and the State. The settlement of the mother, if she had any, at the time, of the marriage, would not be lost or suspended by her marrying one having no settlement in the State ; but she could not gain a settlement in her own right, after marriage, and independent of her husband, while he was living, and the marital relation subsisted. She would be restricted in this respect, by the general legal disabilities of a feme covert. His absence from her, and from the State, and neglect to contribute to her support, would not restore her to the rights of a feme sole; for, as agreed, she often heard from him through others, and as late as in the year 1842, as living in the Province of New Brunswick. His death could not, therefore, be presumed from his absence, nor was the marriage thereby dissolved.

Where the husband has voluntarily, and absolutely deserted the wife, with intention to renounce the marital rights and duties, and has gone out of the State to remain, or was never an inhabitant of the State; or where he compelled her to leave, and continue separated from him, in another State, the general rule of the common law imposing upon her the disabilities of a married woman, has been relaxed, and she has been allowed to act as a feme sole, so far as to contract debts, and transact business in her own name, and to sue and be sued. In such cases she is partially relieved from her legal incapacity, from necessity, and in reference to her security and protection; but the relief extends no further than the objects to be attained. She is not wholly absolved from the general obligations, duties and disabilities of a married woman. She cannot marry again during the life of the husband; nor can she acquire any rights, independent of him, not specially authorized by law, which conflict with the matrimonial relation. The law favors the continuance of that relation, and countenances no act of either party tending to its dissolution, without sufficient cause; and therefore, the gaining of a separate settlement by either, during marriage, is unauthorized, and not warranted by law. Hallowell v. Gardiner, 1 Maine, 93; Jefferson v. Litchfield, 1 Maine, 196 ; Gregory v. Pierce, 4 Met. 478; See Co. Lit. 132, b. 133, a; De Gaillon v. L'Aigle, 1 B. & P. 357; Stratton v. Bushnach, 1 Bing. N. C. 139.

The second marriage of the pauper’s mother, “in 1821 or 1822,” was unlawful, and she acquired no rights by residence under that association. It therefore appearing that the father of the pauper had no settlement in this State, and not appearing that the mother had any in Kingfield, the pauper could not have a derivative settlement from either in that town. Before he was of age, he was not competent, upon the facts stated, to gain a settlement in his own right, and it is admitted, that since that time, none has been acquired.

Plaintiffs nonsuit.

Shepley, C. J., and Wells and Hathaway, J. J., concurred.