Town of Londonderry v. Town of Andover , 28 Vt. 416 ( 1856 )

The opinion of the court was delivered by

Isham, J.

This is an appeal from the order of removal of 'one Maria B. Hathorn, a pauper, from the town of Londonderry to the town of Andover. The pauper was the daughter of Eleazer Hathorn, jr., and the .grand-daughter of Eleazer Hathorn, sen. It appears from the case that the pauper was born in the state of New Hampshire, in 1818, and that she resided in that state in her father’s family until 1825, when she removed with her father and Ms family to Springfield, in this state, and soon after to Andover, where her father died in 1826. It also appears that the pauper continued to reside in Andover with her mother until 1846, when they removed to Londonderry, from which place this order of removal was made. The general question in the case arises, whether the town of Andover is the place of the pauper’s legal settlement. It is conceded that the pauper, after she had arrived at full age, resided in the town of Andover sufficient time to gain a settlement in her own right, provided she had a previous settlement in any other town in this state. As the pauper was born in New Hampshire, and had not acquired a settlement in tMs state in her own right, it became necessary for the town of Londonderry to show that her father had had such a settlement, and that his settlement was communicated to the pauper. In that event, the pauper, by her residence in Andover, would have acquired a legal settlement in that town; otherwise, the town of Andover is not chargeable.

On the question as to the residence of Eleazer Hathorn, jr., the father of the pauper, in this state, testimony was offered tending to prove that Eleazer Hathorn, sen. removed from New Hampshire to Reading, in this state, with his son, then 19 years of age, about the year 1781; and that after that period, he resided in different places in Reading for several years before 1787, when he removed to New Hampshire. Upon those facts, the court charged the jury that if they found that Eleazer Hathorn, senior, resided and made it his home one full year continuously in Reading, between the years 1779 and 1787, and before Eleazer Hathorn, jr.¿ the pauper’s father, became of age, that he thereby obtained a legal settlement in that place, and that Eleazer, jr. thereby also obtained a derivative settlement from him in that town; or if the jury should find that Eleazer jr. resided in Reading after full age, one full year continuously, and made it his home there, between the years 1779 and 1787, that he gained a legal settlement in that town in his own right. To this charge of the court several objections have been taken by the defendants. In the first place it is insisted that competent evidence was not introduced, showing the existence and organization of the town of Reading at that period. The court charged the jury that as it appeared from their records that as early as 1781, the town had appointed their officers, and were conducting their affairs as an organized town, the jury might presume the town was legally organized. We see no objection to that charge of the court. Towns are quasi corporations, and it is not necessary for this purpose to show a strictly legal organization. It is sufficient that the town was organized de facto. The appointment of listers, a town clerk, with other town officers, and the fact that they were then exercising those corporate rights and .powers belonging to organized towns, was sufficient prima facie proof of their due organization, and sufficient to cast the burden of proof on the town of Andover to show it otherwise. It has been held in several instances that testimony of that character was sufficient to show the due organization of corporations of a more private character, and in cases where the parties would be held to more strict and technical proof; Searsburgh T. Co. v. Cutler, 6 Vt. 315; Bank of Manchester v. Allen, 11 Vt. 303.

It is also insisted that the court erred in their charge to the jury, in saying that a legal settlement could be obtained in Reading, previous to the year 1787, and particularly, that a derivative settlement could be communicated to the father of this pauper under the law of this state then in existence. But we think the instruction of the court to the jury on that subject, was correct. It is true that the act of 1779 has particular reference, in its provisions, to transient poor, and directs the manner in which they shall bo removed to the place they last inhabited. It is also true that that statute was temporary, but it was by successive acts continued in existence and in life until 1787, when more general and permanent provisions in relation to settlements were enacted. Under the act of 1779, it was provided that no person could be warned or removed from any town in this state, after he had' lived in that town for the period of one year. The case of Corinth v. Newbury, 13 Vt. 496, has placed a construction upon that act, which we think must be conclusive upon us. In that case, the pauppr was removed from Corinth to Newbury, and Newbury was held chargeable under the act of 1779, by the residence of the pauper in that town for one year previous to 1787. It was only upon the ground that a settlement was gained in Newbury under the act of 1779, by a residence of one year in that town, that the order of removal in that case was sustained. The question must be regarded as settled by that case, that a legal settlement could be gained in any town in this state, previous to 1787, and under the act of 1779, The court were therefore correct in their charge to the jury, that Eleazer Hathorn, senior, obtained a legal settlement in Reading, if between 1779 and 1787, he resided in that town, as his home, continuously, for the period of one year. In that event, the doctrine is fully established by the authorities that Eleazer Hathorn, jr., the father of this .pauper, obtained a derivative settlement in Reading from the settlement of his father in that town,. The case of Wells v. Westhaven, 5 Vt. 322 seems to be decisive on this subject. The right of a derivative settlement, by the father of this pauper, was not lost for the want of express statutory provisions on the subject of derivative settlements, as that right is made to rest on general principles. It was observed by Justice Williams, in the case last cited, that “ the law in relation to derivative settlements depends “ upon the principles of the common law, and not on any statute reg- “ ulations, and that the decisions in England are authorities upon “ any question on that subject arising previous to 1817.” This subject, in relation to derivative settlements, was fully considered, and the doctrine, as held in the case of Wells v. Westhaven, was sustained in the House of Lords, in England in the late case of Adamson v. Barbour, 28 Eng. L. & Eq. 38. The same doctrine is sustained in other States; Freetown v. Taunton, 16 Mass. 52; Landaff v. Atkinson, 8 N. H. 534; Reeve. Dom. Rel. 298. We come to the conclusion, therefore, that Eleazer Hathorn, jr., the pauper’s father, had a derivative settlement from his father in Reading, under the act of 1779, provided, during his minority, his father resided in that town one full year previous to 1787 ; and also, that he obtained a settlement under that act, in his own right, if, after he became of age, he resided in that town for one year previous to that time.

But it is insisted, that if the father of this pauper obtained a settlement in Reading, either derivative or in his own right, that settlement was lost and abandoned by his removal from this state to New Hampshire, soon after 1787, and his residence in that state until 1825, and that, under such circumstances, he could not communicate a derivative settlement to the pauper, who was born in that state. This objection seems to be met mainly by decisions in this state. In the case of Wells v. Westhaven, it was observed, that “ if a father gains a settlement in this state for himself, it is “ communicated to his minor children, whether living with him “ or not;” and in Georgia v. Grand Isle, 1 Vt. 470, it was held, “ that “ a settlement once obtained in this state, was not lost by the sub- “ sequent acquisition of a settlement in another state.’-’ It results, from that case, that a derivative settlement can be communicated by a father having such a settlement to his minor children, though born in another state, if the father, during fheir minority, remove with them into this state. The cases in Massachusetts sustain that doctrine; Townsend v. Bellinica, 10 Mass. 411; Canton v. Bently, 11 Mass. 441; Cambridge v. Lexington, 1 Pick. 509. A different rule would probably apply to children born in a foreign country of parents domiciled there, though the father may have had a settlement in this state, and when the father, dufing their minority, never returned to this state. Such children would be, in every sense of the word, aliens, owing no allegiance to this country, but would be under a natural allegiance to the country in which they Were born. It can be said, with much propriety, that when that relation to this country ceases, the party is deprived of communicating to children so born, a derivative settlement. But howevei that may be, we think the pauper, in this case, obtained a derivative settlement in this state, if her father had obtained a previous one in Reading ; and that depends upon his actual residence in that town for one year after he became of age, or upon the actual residence of Eleazer, senior, in that town for the same period, during the minority of Eleazer, jr.

The jury, under the charge of the court, have found that an actual residence of that character was had by one or the other of those persons. In either event the result will be the same. The father of this pauper would have a derivative settlement in the one case, or a settlement in his own right in the other ; and the place' of his settlement, would be the legal settlement of this pauper, but for the circumstance that she has, by her residence in Andover^ subsequently acquired a settlement in that town. The important and remaining inquiry in the case then arises, -whether that finding of the jury as to the actual residence of Eleazer, senior, and Eleazer, junior, in Reading, previous to 1787, was had on competent and legal testimony. If it was, that finding of the jury is conclusive, and the residence of the pauper in Andover will give her a settlement in that town, as she had a previous one commnnicated to her by the settlement of her father in Reading. To prove the actual residence of the pauper’s father in Reading, and also that of Eleazer, senior, the depositions of several witnesses were offered, and read in evidence to the jury. In relation to all of them, with one exception, it may be observed that they refer simply to the declarations of Eleazer, Jr., as to his former residence, and that also of his father, Eleazer, senior, in Reading, and made many years afterwards ; and also to the declarations of other members of the family, as to the residence of those persons in that town. If those declarations had been made by him, during his residence there, perhaps they might have been competent evidence, as they might be considered part of the res gestae, explaining the character of his residence, whether temporary or permanent. But when such declarations are not cotemporaneous with the fact to be proved, we know of no principle that will admit them as evidence in the casé. Baptiste v. Vourburn, 5 Har. & John. 86. 1 Greenl. Ev. § 108. Gorham v. Canton, 5 Greenl. 266. The actual residence of those persons in Reading, between the years 1779 and 1787, cannot be proved by reputation or family tradition for the purpose of creating a legal settlement. Testimony of that character has been received to show the relationship of individuals, the pedigree of families, and in some other cases where it is the interest of the family to preserve a knowledge of the facts to be .proved ; 1 Greenl. Ev. § 111; Ward v. Oxford, 8 Pick. 477; but we do not find that it has ever been extended to cases of this character. The admission of that testimony cannot be urged on the ground that it was competent in proof of the identity of the parties, as the exceptions state that the testimony was offered and received to prove the residence of those persons in' Reading, and for that purpose alone they were admitted by the court. We think the testimony for that purpose ought not to have been received.

The result is that the judgment of the county court is reversed and the case remanded: