Inhabitants of Thomaston v. Inhabitants of St. George , 17 Me. 117 ( 1840 )

The opinion of the Court was drawn up by

Emery J.

The Judge was requested to instruct the jury, “if they should find Dix Island was within three miles of the maiu land, that it was in that case embraced within the limits of the town of St. George, although it might be nearer to some point in Thomaston.” This he declined, but did instruct them, “ that by the act incorporating St. George, the islands adjacent thereto were made a part of that town; that whether Dix Island was within the meaning of that act, adjacent to St. George, and therefore a part of that town, they should judge from all the evidence adduced.”

It is true, that there is presented a mixed question of law and fact. “ The town of Thomaston was formed from a part of the St. George plantation, including all islands ivithin three miles of the main land, and within the direction or the lines that run to the sea.” The act incorporating the town of Cushing, passed on Jan. 28, 1789, declares, that the plantation heretofore called St. George’s, in the county of Lincoln, as described in the following boundaries, beginning at the mouth of Msduncoolc River, running up said river to the head of the tide, then north by east to Waldoborough line, then along said line to the southwest corner of Warren, then running easterly by Warren line to St. George’s River, then crossing said river to the southwest corner of Thomas-ton, then east-southeast by Thomaston line to the sea shore to Herringut, thence running northwesterly, crossing St. George’s River, to the first mentioned bounds, with the adjacent islands, together with the inhabitants, are incorporated into a town, by the name of Cushing. Thomaston it seems, had previously been incorporated.

The statute passed Feb. 7,1803, enacts, that all that part of the town of Cushing, which lies to the eastward of a line, drawn from the southwest corner of Thomaston, and passing southwesterly through the middle of St. George’s River by the westerly channel to the sea, be and hereby is incorporated into a separate town by the name of St. George. Of course the Dix Island was once a part of the town of Cushing.

The ship channel for vessels bound to and from Penobscot bay and river is between Dix island and the main land of Thomaston, and the main land of St. George. Had nothing been said in either of the acts of incorporation of the three towns of Thomaston, Cushing or St. George, leading to the adoption of a mode of ascertaining the intentions of the legislature, as to islands to appertain to each in the use of the term adjacent, it would not be an unnatural one, to carry out the line of the town of Thomaston from its southwest corner into the ocean, in order to ascertain what were the adjacent islands, which should be attached to St. George. Considering that Thomaston includes all islands within three miles of the main land, and within the direction of the lines that run to the sea, thus making not only distance from tho main land, but direction of lines of the town, essential to ascertain its islands, and the law detaching St. George from Cushing, says, that all that part of the town of Cushing which lies east of the line running from the southwest corner of Thomaston, with the islands adjacent, shall constitute the town of St. George, and by the plan exhibited, this .Dix Island is eastward of the territory or main land of St. George, and within the line so extended, it appears to us, that the finding of the jury, that Dix Island is not within the town of Si. George, is manifestly opposed to the law.

Though Dix island may be nearer to the main land of Thomaston, than to the main land of St. George, yet it is nearer to the line so extended, and without the direction of the lines of Thomas-ton that run to the sea, and may fairly, even necessarily, bo adjudged to be adjacent to St. George, within the meaning of the act incorporating St. George. Entertaining this opinion, we apprehend that the first requested instruction might well have been given.

We perceive no error in the direction of the Judge, that the jury “ were to gather the intentions of the pauper, as to a change of domicil, from her declarations, which were not conclusive evidence on that point, and from her acts, all taken in connection.” Tho subject was placed precisely as it should be for tbe contemplation of tbe jury. The declaration might have been the result of some hasty feelings, or impressions, and even though accompanied by the removal of her bed, her all, still, there might well be indulged to her the liberty of more calm deliberation. It was left open for the mature weighing by tbe jury of all the circumstances in evidence.

It has been gallantly said, that “ it is peculiarly the wife’s province to fix upon a home.” Doubtless she may have wonderful influence in rendering the place of her selection a pleasant home, and her advice as to the choice is seldom to be disregarded. In a peculiar case, under the law of the Commonwealth of Massachusetts, as it was in 1794, and for some time alter, there was some ground for the suggestion of tho defendants’ counsel. If a woman, having a settlement in that Commonwealth, married a man having no such settlement, hers, by law, was not lost or suspended by marrying, and in case the wife were removed to her settlement, the husband, if he needed support, was to receive it in the town where his wife had her settlement, at the expense of the Commonwealth. She would in such a concurrence of events “ fix the home,” Feb. 11, 1794, stat. c. 34.

It is also insisted, “ that she can elect after her husband’s death to continue the residence, and then her election is retroactive,” and strong cases of illustration of the justness of this reasoning drawn from highly wrought sentiments or reminiscences of affection, have been adduced, and eloquently urged upon us, with persuasive and interesting effect. But the law seems not to have been framed exactly upon those considerations, nor has it been so expounded. It was long ago held, that a wife was incapable of gaining a settlement in her own right. Her will is subjected to the husband’s judgment. She will follow and have the settlement of her husband, as it was at his death. But she is not permitted to tack the portion of her residence with her husband in a town, which had not been long enough to fix his settlement there, to additional time of her own residence there, after his decease, to procure a settlement for herself. In legal construction, while united to her husband, she bad no volition, by which she could make an election of her home. As death severs the connexion, she is left to abide by what his settlement was, with the leave of beginning to find another for herself. And in the case of the inhabitants of Richmond against the inhabitants of Lisbon, this Court so decided. 15 Maine R. 434.

The presumption of lav/ does not arise in favor of the continued residence and home “ until it should be shewn that she acquired a new residence and home in some other place.” Because upon the husband’s failing to gain a settlement in Thomaston, by five years continued residence and having his home there, his wife or widow, on the instant of his death is, as it were remitted^* to the original settlement, which she had derivatively from her husband, and that settlement, in this instance, was in St. George.

The instruction therefore, that, “ if it was not’; shewn, that she did obtain such a new7 residence and home within five years from the time when the residence commenced in Thomaston, in the fall of 1829, her settlement was in Thomaston” was erroneous, and for this also the exceptions must be sustained. The verdict must be. set aside and a new trial granted.

* A remitter is as an entry in law. There may be a remitter, nolens nolens, for the benefit pf thjrd persons. Duncombe v. Wingfield, Hobart, 254.