Town of Croydon v. County of Sullivan , 47 N.H. 179 ( 1866 )

Bellows, J.

The pauper has no settlement in this State unless he acquired one in Springfield between the years 1854 and 1861, inclusive, by derivation from his father. From the facts stated, the son during ail this period was a member of his father’s family, and although fifty years of age was not emancipated, being in a state of idiotcy.

It is claimed that the father gained a settlement in Springfield by residence and payment of taxes upon real estate, for four years in succession, during the above period. It, appears, however, that the pauper was supported as such in Springfield, from March 10,1857, until October, 1861, the charges for his support having been paid by the town of Londonderry, where his settlement was, until it was abolished by the law of July 4, 1861.

This raises the question whether a person can gain a settlement by residence and payment of taxes, or by derivation, in one town, while he is supported as a pauper by another town; it being apparent that -without counting a portion of the time while the pauper was supported by Londonderry, the father cannot have resided and paid taxes in Springfield for four years in succession, before December 2, 1864, when the pauper removed to Croydon and was supported by the county.

The statute requires expressly that the residence and taxation should be four years in succession, and therefore, unless the pauper could gain a settlement by residence and payment of taxes while he was being supported as a pauper by Londonderry, he has no settlement in Springfield.

Although we find no decision, in this State, of this question, it has been the general understanding, we think, of the profession that a settlement cannot be gained by residence and payment of taxes while the person is a public charge as a pauper. It is obvious that while he is-so supported as a public charge, he is in no condition to perform those duties as a citizen which the law regards as the foundation of his claim to a settlement by residence and payment of taxes. He may, indeed, pay his taxes in the town where he resides, but if he is enabled to do so only by the assistance which he receives from the public, it is obviously not such a payment as the law contemplates.

This question has repeatedly arisen in Massachusetts, under statutes similar to our own, and it is well settled, that under such circumstances a settlement cannot be gained by residence and payment of taxes. East Sudbury v. Waltham, 13 Mass. 461; East Sudbury v. Sudbury, 12 Pick. 1; Oakham v. Sutton, 13 Met. 192, and cases cited; and Choate v. Rochester, 13 Gray 92. So is Garland v. Dover, 19 Me. 441; Clinton v. York, 26 Me. 167 ; and so it is held in Connecticut, Norwich v. Saybrook, 5 Conn. 384. In the case before us, the pauper has always lived with his father ; is non compos, and wholly unable to support himself, and has never been emancipated unless by being supported at the public charge.

Assuming that he was never emancipated, the father was bound to maintain him so long as he had means to do so, without disposing of what must immediately be replaced to enable him and his family to live together. Litchfield v. Londonderry, 39 N. H. 247, and cases cited. If, then, the pauper was relieved by Londonderry, with the assent and procurement of the father, he being unable to support him — which is to be inferred from the case — we are of the opinion that the father himself did not gain a settlement in Springfield. Under the circumstances, the son, as a member of his father’s family, would stand upon the same footing as if he had been a minor, and relief furnished the son at the father’s request, would have the same effect as if furnished for himself. It is so expressly decided in Taunton v. Middleborough, 12 Met. 35. In Eerkely v. Taunton, 19' Pick. 480, it was held that where a wife lived in another town and received relief as a pauper, it not appearing that it was with the husband’s request or knowledge, or that he was unable to support her, this did not prevent his gaining a settlement; but the court say that a different question would have been presented had the support been furnished at the husband’s request. In Taunton v. Middleborough the case of Berkely v. Taunton was fully considered, and this question decided.

In Maine, the doctrine of Taunton v. Middleborough seems to be well settled. In Green v. Buckfield, 3 Greenl. 136, it was held that supjDlies cannot be considered as furnished to a man as a pauper so as to defeat his settlement under their statute, unless furnished either to himself personally, or to some member of his family who continues under his care and protection, and therefore that supplies furnished to absent children, though minors, but forming no part of his family, could not be regarded as furnished to him. The same principle was applied to supplies furnished to the wife from whom the husband was separated, in Hallowell v. Saco, 5 Green. 143,

In Garland v. Dover, 19 Me. 441, it was decided that supplies furnished the pauper’s minor daughters must be regarded as indirectly furnished to him, although the family by reason of poverty was broken up, and the father and daughters were separated; the parental relation, however, in other respects remaining, he having furnished them a little assistance. The court, Weston, C. J., says, that "he is a pauper who is unable to provide necessary food and clothing for his minor children and leaves them to be aided by the town.”

In Clinton v. York, 26 Me. 167, where supplies were furnished to a minor daughter living in the same town with the father, but not with him, by reason of difficulties with the stepmother, and the father was unable to support her, it was held, per Shepley, J., that the father must be considered as having received supplies indirectly, although there was no proof of any request from him.

The case of Bangor v. Readfield, 32 Me. 60, recognizes this doctrine, but holds that where the daughter, a vagrant, was absent and relief furnished to her without the knowledge or consent of the father, who was of sufficient ability to maintain her, that this did not make him a pauper. The same general doctrine is held in Tremont v. Mt. Desert, 36 Me. 390.

The same doctrine is held in Connecticut, in Norwich v. Saybrook, 5 Conn. 384, where it is held that if any member of a pauper’s family is in fact chargeable to the town it will prevent the pauper’s gaining a settlement.

We are of the opinion, then, that if the son was not emancipated, the obligation of the father to support him remained as if not of age, and that the father could not gain a settlement, while the son was supported by the town in his family, by residence and payment of taxes. If he was emancipated it is clear that he could not take any settlement that his father or mother may have acquired in Springfield, and it is therefore unnecessary to inquire whether he was emancipated by being thrown upon the town for support.

It is also contended in behalf of the county, that the wife acquired a settlement in Springfield by residence and payment of taxes, and that the pauper would take it by derivation from her, but we think it is a sufficient answer to say, that, whether the wife may, under any circumstances, while cohabiting with the husband, acquire a settlement distinct from him by residence and payment of taxes, she must be regarded in this case as a pauper equally with her husband. They with the son, together, composed one family, her duty towards the son was the same, morally, at least, as that of the father, and even although she might have the means of supporting herself apart from the others, she must, under the circumstances, be considered as participating equally with the husband in the relief furnished by the town of Londonderry.

In South Hampton v. Hampton Falls, 11 N. H. 134, it was held that the wife, who was at service and earning sufficient for her support, and might have continued to do so, but came to attend upon her husband in his sickness, and he needed and received relief, became herself a pauper, although the relief was furnished against her will and consent.

The principle of this case is decisive of the question before us, and therefore the wife no more than the husband could acquire a settlement in the way suggested, while receiving compensation for the support of an unemancipated son in their family.

As respects the capacity of the wife to acquire a settlement in this way, it was held in Andover v. Merrimack County, that she could, although there are authorities against that position. Among them are Shirley v. Watertown, 3 Mass. 322 ; Hallowell v. Gardner, 1 Me. 93; Augusta v. Kingsfield, 36 Me. 235; Richmond v. Lisbon, 3 Shepley 434, and cases cited; and Thomaston v. St. George, 5 Shep. (17 Maine) 117. It is held in these cases that the will of the wife is subjected to that of the husband, and that she cannot acquire a settlement that might cause a separation; that it is the policy of the law that there should be but one settlement for both, and that the provision which gives a settlement to all persons residing and paying taxes as prescribed, applies only to those who at common law were capable of acquiring a settlement, which it was held, neither a minor nor married woman could do. In Farmington v. Jay, 18 Me. 376, it was held that a legitimate minor child could not acquire a settlement, and see cases cited; and so is Taunton v. Plymouth, 15 Mass. 203, and Somerset v. Dighton, 12 Mass. 383, but it is not necessary further to consider this question.

It being determined, then, that the pauper had no settlement in Springfield, the claim, according to the agreement of the parties, must be allowed.