13 Mass. 381

September, 1816

Worcester County

Under the statute of 1793, c. 34, an illegitimate child has the settlement of its mother at the time of its birth, and retains the same until it acquires a new one by some act of its own.

ASSUMPSIT for the support of Nancy Bowker, a pauper, from the 20th of August, 1814, to the 20th of April, 1815.

At the trial, which was had on the general issue, at the last April term, before Putnam, J., there was evidence of notice to the defendants, and a denial on their part that the settlement of the pauper was in their town.

It was proved that the pauper was an illegitimate child

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of Polly Hanners, alias Bowker, and that she was not born in Princeton, and that her mother, after the birth of her child, was married to one Elisha Sawyer, who held a farm in Princeton for his natural life, of the annual value of forty dollars, which he held for about eight years before his death, the pauper going with her mother and making part of Sawyer's family from May, 1803, to March, 1811, when Sawyer died. His settlement in virtue of his holding this estate seemed to have been questioned at the trial, but was not contested in the argument.

The plaintiffs proved the supplies, and the necessity of furnishing them; and the verdict was in their favor.

If, on these facts, they were entitled to recover, judgment was to be rendered on the verdict; otherwise, they were to become nonsuit.

Burnside and Newton, for the plaintiffs. If an illegitimate child follows the settlement of the mother, and changes with it, the plaintiffs are entitled to the verdict they have obtained. This was settled, in the case of Petersham vs. Dana, to be the true construction of the statute of 1789, c. 14. [Note 1] The present question will depend on the construction the Court shall give to a similar provision in the statute of 1793, c. 34. The words of the latter statute are, "Illegitimate children shall follow and have the settlement of their mother at the time of their birth, if any she shall then have within the Commonwealth." The word follow must be wholly rejected, if it has not the same effect as the provision of the repealed statute. If this word is rejected, and an illegitimate child can derive no settlement from its mother but that which she has at the time of its birth, they may be separated in five days after the birth. Yet this Court has decided, that the mother of an illegitimate child has a natural right to its custody, and is bound to support and maintain him. [Note 2] The Court will not, unless from absolute necessity, give such a construction to this provision as shall authorize infants of so tender an age to be separated from a mother, who is, by the laws of

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God and man, their natural protector and tenderest friend, and without whose maternal attentions even their lives can hardly be hoped to be preserved.

Lincoln, for the defendants. The plain and necessary meaning of the statute, on which this question depends, is, that illegitimate children are to have the settlement which their mothers have at the time of their birth. Nor are the fatal consequences to follow, which have been pressed upon the attention of the Court. A legal settlement does not always include a right of removal. But there seems no room for argument in the case; since the Court have already given to the clause in question the construction now contended for by the defendants, in the case of Petersham vs. Dana.

PARKER, C. J., delivered the opinion of the Court. The question, which seems to have been intended to be argued in this case, has been given up; probably being supposed to have been settled in the case of Conway vs. Deerfield. [Note 3] But it has been contended for the plaintiffs, that the pauper, being an illegitimate child, acquired a settlement in Princeton with her mother, who acquired a settlement in that town by her marriage with Sawyer.

It has been determined in the case of Petersham vs. Dana, cited in the argument, that, by virtue of the statute of 1789, c. 14, repealed by the statute of 1793, c. 34, illegitimate children followed the settlement of the mother, acquiring a new one as often as the mother did, until they should acquire one in their own right; and it was there intimated, that such might not be the case under the statute of 1793. The provisions of the latter statute, in this respect, are wholly different from those of the former. The rule, as now established, is, that illegitimate children shall have the settlement of their mother at the time of their birth; meaning, as we apprehend, that the settlement which the mother had at the time of the birth of the child should be the settlement of the child, until it should gain a new settlement by its own act.

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The word follow, in this clause of the act, seems not to have been used technically, nor with any precise meaning. To give it the construction contended for by the counsel for the plaintiffs, namely, that the child is to have the settlement which the mother had at the time of its birth, and shall afterwards follow the mother when she may acquire a new settlement, would be doing great violence to the language of the legislature.

As to the inconveniences following from this rule, we lament them; and we repeat, what has been often observed, that the rules established by the legislature upon this subject must be strictly enforced, in order that no uncertainty may exist with respect to the rights and duties of towns in regard to the support and maintenance of paupers.

The verdict in this case must be set aside, and the plaintiffs be called.

Plaintiffs nonsuit.


[Note 1] 12 Mass. 429 .

[Note 2] Wright vs. Wright, 2 Mass. 110 .

[Note 3] 11 Mass. 327 , 330.