
    Inhabitants of Farmington vs. Inhabitants of Jay.
    ^Posthumous children have a derivative settlement from their father, if he had any ; and in this respect are in the same condition, with such as are born jji Jhjs lifetime.
    JBy .the .Massachusetts statute of 1793, c. 59, and also by the statute of this ,S.tate of 1821, p. 122, legitimate children are to follow and have the settlement of their father, if he had any within the State, until they gain a settlement of their own; but if he shall have none, they shall follow and have the .settlement of their mother, if she shall have any.
    A legitimate child, therefore, whose father had a settlement within the State, and died subsequent to the statute of 1793 and prior to that of 1821, does not follow a new settlement, acquired by his mother under the latter statute, but retains .the settlement of his father, until he acquires one in his own right.
    jit has become a principle of law in the construction of statutes for the relief of the poor, that minor children, until emancipated, are incapable of gaining a settlement in their own right.
    This was an action for supplies furnished to Mary D. West, a pauper under the age of twenty-one, whose settlement was alleged to be in the town of Jay. From the statement of facts agreed by the parties, it appeared that the pauper is the legitimate child of Sydney West, who died on the 19th of August, 1819, within the limits of the town of Jay, in which town he then had his legal settlement. .The wife of West, at the time of his death, was pregnant with the pauper. West and his family were supported as paupers by Jay, and immediately after his death, the selectmen of that town provided places for his children, and agreed with one Hatch, the father of Mrs. West, that he should have the property left by West, in value about seventy dollars, if he would take Mrs. West, and take care of her and of the child with which she was then pregnant, without any trouble and expense to said town of Jay. Hatch gave an obligation to the town of Jay to that effect. In pursuance of this agreement, on the day after the funeral of her late husband, she went with her father to the town of Wilton, where the pauper was born Nov. 12, 1819. The pauper and her mother continued to live in Wilton for the ten or twelve next succeeding years, and of course were residing there on March 21, 1821. No supplies were furnished to the pauper, or to her mother after her removal to Wilton, until the supplies for which this action was brought were furnished to the pauper in Farmington, commencing October 1, 1838. If the settlement of the pauper was in Jay, the defendants were to be defaulted.
    
      J. L. Cutler, for the plaintiffs,
    said that the Massachusetts statute of 1793, c. 59, under which the pauper gained a settlement derivatively from her father, was, as it respects the present case, precisely the same as our statute of March 21, 1821.
    A posthumous child gains a settlement in the same way, as if born before the death of the father, and is to be considered in all respects as the other children. 3 William’s Abr. 17 ; 1 Bl. Com. 94, and notes; 3 Bac. Abr. 124.
    A legitimate child can gain no settlement in his own right, while a minor, unless emancipated. Somerset v. Dighton, 12 Mass. R. 383; Hallowell v. Gardiner, 1 Greenl. 93; Fayette v. Meeds, 1 Fairf. 409; Milo v. Kilmarnock, 2 Fairf. 455. Emancipation is never to be presumed. Sumner v. Sebee, 3 Greenl. 223.
    Legitimate children, deriving a settlement from their father, at the time of his death, will not follow the settlement of their mother, if she should gain a new one. Fairfield v. Canaan, 7 Greenl. 90; Biddeford v. Saco, ib. 270.
    The mother of the pauper was carried to Wilton as a pauper, and so remained on March 21, 1821, and at the incorporation of Wilton, and for that cause could gain no settlement in Wilton. The selectmen had power to contract for their support as a pauper of Jay in another town. Davenport v. Hallowell, 1 Fair-f. 317.
    
      H. Belcher and May, for the defendants.
    The mother of the pauper was not herself a pauper after her removal to Wilton. She gained a settlement by residing in Wilton on March 21, 1821. Standish v.' Windham, 1 Fairf. 97; Wiscassett v. Waldoborough, 3 Greenl. 388.
    The pauper does not take her settlement from her father, but from her mother ; and if so, acquires any new settlement which the mother may acquire. Parsonsfield v. Kennebunkport, 4 Greenl. 47. This child, under our statute can take no settlement until its birth. Every provision in the statute has relation to the time of the birth in fixing the settlement. Our statute being on this subject like that of Massachusetts, the decisions there apply. Plymouth v. Freetown, 1 Pick. 197; Scituate v. Hanover, 7 Pick. 140; 2 Dane, 410, and cases cited.
    It is a consideration of great weight in favour of the construction for which we contend, that unless we are correct, the mother and child will be separated, and belong to different towns. Dedham v. Natick, 16 Mass. R. 135; 20 Johns. R. 1.
    
      R. Goodenow replied for the plaintiffs.
   The opinion of the Court was drawn up by

Weston C. J.

The pauper was born prior to the separation of this State. Her settlement therefore, at the time of her birth, must depend upon the law of Massachusetts. By the statute of that state of 1793., c. 59, which was the law existing at the birth of the pauper, legitimate children were to follow and have the settlement of their father, if he shall have any within the commonwealth, until they gain a settlement of their own ; but if he shall have none, they shall in like manner follow and have the settlement of their mother, if she shall have any. The same provision has been reenacted in this state. Statute of 1821, c. 122, § 2. In all the cases, in which a .child has been held to follow the settlement of the mother, under this mode, the father never had any settlement in the state. We are satisfied, that posthumous children have a derivative settlement from their father, if he had any; and that in this respect they are in the same condition, with such as are born in his lifetime. Every legitimate child in ventre de sa mere, is considered as born for all beneficial purposes. Coke Lit. 36; 1 P. Wms. 329.

It has become a-principle of law, in the construction of the statutes for the relief of the poor, that minor children, Until emancipated, are incapable of gaining a settlement in their own right. The reason for the establishment of this rule was, that they might not be separated from their parents. It has been applied however generally ; and sometimes where its application has had the effect, to separate the settlement of the minor from that of the surviving parent. Biddeford v. Saco, 7 Greenl. 271, is a case of this character. There two minor children with their mother, their surviving parent, dwelt and had their home in Saco, on the twenty-first of March, 1821; yet they were held incapable of acquiring a settlement in their own right; although a different decision would have given them the same settlement with their parent, and 'that which actually obtained, separated their settlements. Milo v. Kilmarnock, 2 Fairf. 455, was a decision to the same effect. These were cases of illegitimate children, who although they take the settlement of their mother, at the time of their birth, do not follow one, which she may subsequently acquire. Nor in this case did the pauper follow the settlement of her mother, the law giving her the settlement of her father, which was in Jay, until she acquired one in her own right. And although she resided and had her home in Wilton, on the twenty-first of March, 1821, yet being a minor, and not emancipated, she thereby gained no settlement in that town.

In Dedham v. Natick, 16 Mass. R. 135, cited for the defendants, where a legitimate daughter was held to follow the settlement of her mother, who was her surviving parent, the decision depended upon the law in force prior to the act of 1793, c. 59, which was changed by that statute.

Defendants defaulted.  