Town of Topsham v. Town of Chelsea , 60 Vt. 219 ( 1887 )

The opinion of the court was delivered by

Ross, J.

The contention is in regard to the last legal settlement of the pauper, Mary Folsom. When the pauper became of age her father’s legal settlement was in the town of Corinth. Soon after that date, the father moved with his family, including the pauper, into the defendant town and there acquired a legal settlement. If the pauper took this last settlement of her father, or if she acquired a legal settlement in Chelsea in her own right by more than seven years’ residence therein, unaided by the town, she was properly removed to the defendant town. The agreed facts do not very conclusively show whether the pauper possessed sufficient intellect and intelligence to exercise an intention and choice in regard to her place of residence. If she did, there being nothing in the agreed case to show that her residence in Chelsea was constrained, it is presumed to have been from choice and because she preferred to live there with her father, and she gained a legal settlement in Chelsea in her own right. But if the frequent fits of insanity, which began, to occur before the pauper attained majority, had so impaired her intellect and intelligence, as it would seem quite probable it may have done, that she was incapable of exercising any choice or intention in regard to the place of her residence, then she was suffering from such mental and physical disability and infirmity as rendered it fit that she should remain with, and under the control, care and protection of her father; and she would not be emancipated on attaining majority, and would take the after-acquired settlement of her father in Chelsea. Hardwick v. Pawlet, 36 Vt. 320. Such a mental and physical condition would rebut the presumption of emancipation which arose from the attainment of majority. Whether emancipated or not, she resided continuously in the family of her father in Chelsea. Hence she either acquired a legal settlement there in her own right, or took the legal settlement acquired by her father. It is not material to determine which ; for it is agreed in the' agreed statement of facts that the facts are sufficient to uphold a judgment for the plaintiff in the usual form, unless the contrary appears. The defendant contends, that if the pauper’s intellectual and- physical condition was such that she could exercise no choice, or intention in regard to the place in which she would reside, she was a transient pauper in the plaintiff town, and not amenable to an order of removal, because she did not, in the language of the statute, “come to reside ” in the plaintiff town; that is, reside there from choice and intention. To be amenable to an order of removal, the pauper’s residence in the removing town must be from choice and intention. But, by the agreed case, the parties have supplied this fact, if necessary to support the order of removal. It is evident from the statement of the doctrine in Hardwick v. Pawlet, supra, that a child may be in such.a condition as to render it fit, on the ground of humanity, that it should remain under the care, control and protection of the parent, after attaining majority just as it did before that time, and yet have the power of choosing in regard to a place of residence. If therefore the decision should be placed upon the basis that the pauper took her father’s settlement in Chelsea, acquired after she’attained majority, because uneman-cipated, the parties, in the agreed case, have supplied the other fact, the ability to chose and intend, necessary to uphold the order of removal. It is, therefore, not necessary to determine whether the pauper was to be regarded emancipated or unemancipated, during her residence in her father’s family in Chelsea. In whichever condition, on the agreed facts, the plaintiff is entitled to hold the judgment of the County. Court' in its favor.

That judgment is affirmed.