Inhabitants of Portland v. Inhabitants of New-Gloucester , 16 Me. 427 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

'The jury have found, that the pauper resided, on the twenty-first of March, 1821, in the family of Solomon Sanborn, at his house in New-Gloueester. That before he was two years old, the father of the pauper had relinquished to Sanborn his parental rights over the child.. That he had accepted him, and that from that period, Sanborn’s house was regarded by him, the father and the child, as his home. That thereafter, he received no maintenance or assistance from the father, who practically divested himself of all care or control over the child, the duties belonging to the parental relation, so far as they were fulfilled, being assumed and discharged by Sanborn.

If a minor cannot, by any voluntary act of his own, change his domicil or acquire a new one, without the consent of his father, or bis mother, if she be the surviving parent, there seems no good reason why this may not be done, by the appointment of bis father and the free consent of all, whose interest may thereby be affected. And in the case before us, it does appear, that Sanborn’s house, under the circumstances, became the pauper’s home. This however is not necessarily or uniformly coincident with settlement. It was made so, at the period referred to by the literal terms of the statute, upon which the plaintiffs rely. A question then arises, whether there is any limitation or exception to the generality of its application. Such exceptions have obtained even under the pauper laws, which depending upon positive and arbitrary enactment, have generally received a strict construction.

Thus, under the act of Massachusetts, of 1793, c. 34, the ninth mode of gaining a settlement, although extending by its terms to every person, without any discrimination as to age, which is made in other inodes in the same statute, has been understood not to apply to minors, who had parents living. Hallowell v. Gardiner, 1 Greenl. 93, and the cases there cited. So although the second mode, in the same statute, provides, that legitimate children should follow the settlement of their father, until they gain one in their own right, this has been held to be limited to the settlement of their father, during their minority, and not to extend to a settlement acquired by him, after they cease to be minors. Springfield v. Wilbraham, 4 Mass. R. 493.

Under the statute in question of March 21, 1821, c. 122, sec. 2, which fixes the settlement, whore the party dwelt and had his home on that day, notwithstanding the generality of its terms, it has been held, with certain exceptions, not to extend to minors. Lubec v. Eastport, 3 Greenl. 220. Mellen C. J. there says, “ it is very clear that a wife and minor children, which compose a part of the husband’s and father’s family, cannot gain a settlement distinct from his. It would lead to a separation of husband and wife, and parents and children. Policy forbids this.” And the necessity and propriety of a construction, which will avoid such a result, is enforced in Hallowell v. Gardiner, before cited, and in Shirley v. Watertown, 3 Mass. R. 322.

The exception is to be limited by the reason, upon which it is founded. Hence in Lubec v. Eastport, it was decided, that it does not embrace the case of minors, who arc emancipated. In Springfield v, Wilbraham, Parsons C. J. holds, that the principle of derivative settlements, in the case of minors, is founded on the right of the father to their services and to the control of their persons. When this ceases, ho adds, “ it is not easy to devise any good reason, why they should not bo considered as emancipated.”

The principle is held to depend upon rights, which may be waived or transferred, and not upon duties, which are matter of legal or moral obligation. A father may emancipate his child, or transfer his parental rights to another. But this does not relieve him from the obligation of furnishing them with necessary support, if it is not otherwise provided. And this obligation does not even cease with minority, if the parent be of sufficient ability. The duties and obligations of the parent, are not now the subject in controversy. The case finds a direct and express waiver and transfer of parental rights, fully and practically carried out from infancy, without any interference whatever on the part of the father. The appointed and substituted home, such as it was, was always made welcome to the child, and was acceptable to him. He could have remembered no other. He knew no other. It appears to us, therefore, to be a case, not within the reason of the exception, raised by the construction, to the literal operation of the statute.

In Wells v. Kennebunk, 8 Greenl. 200, emancipation was held to result from the waiver of parental rights, and the substitution of another home, not so direct and less strongly marked, than are presented here. The father of the pauper was insane, and incapable of legal volition. He died the year before the act of 1821 passed, whereupon the mother became the head of the family, and entitled as such to the services of the minor and the control of his person. Dedham v. Natick, 16 Mass. R. 140. He was left at her father’s for many years, and was there residing at the passage of the act of March, 1821. Her relinquishment of her parental rights, was deduced by implication from the facts and circumstances. Mellen C. J. says, “she seems to have resigned him (the minor) to the care, government and protection of the grandfather.” What was there matter of inference, is here expressly proved and found.

Judgment on the verdict.