
    David Baldwin versus The Inhabitants of the First Parish in Fitchburg.
    The personal property of a minor who attends public worship in a different parish from his guardian, is nevertheless to be taxed to the guardian in the parish of which he is a member.
    Assumpsit for money had and received.
    The parties agreed upon the following facts. In 1828, the First Parish in Fitchburg voted to raise the sum of 600 dollars as a parish tax. The sum of 5 dollars 28 cents was assessed upon the plaintiff for certain personal property which he held as guardian of Abel and George Farwell, minor children of Daniel Farwell deceased, and was collected by a distress of his own property, and received into the parish treasury. At this time, and long before, the plaintiff was a regular member of the Second Parish in Fitchburg. At the time of the decease of Daniel Farwell there was but one religious society in Fitchburg, to which he then belonged, except a Baptist society, which was incorporated in 1810 and has been in existence to this time. In 1820, when the plaintiff was appointed guardian, he was a member of the same religious society to which Daniel Farwell belonged at the time of his decease, and which was of different religious sentiments from the First Parish, the defendants. In 1823 the Second Parish was formed ; of which the plaintiff became a member in 1824. One of the minors, from the time of his father’s death to the time of the assessment of the tax, was a member of his mother’s family. She had married a second husband, a member of the First Parish, and with this family the minor regularly attended public worship in the First Parish, he being continued in this family, under the agreement of the plaintiff, at a stipulated price. Neither of the minors has ever resided in the family of the plaintiff, but they have been under his direction and control.
    Strong, Justice of the Court of Common Pleas, was of opinion that the F irst Parish had a legal right to tax the plaintiff as guardian, and he ordered judgment to be entered for the defendants ; to which opinion and order the plaintiff filed exceptions.
    Or». 5th.
    
    
      J. Davis supported the exceptions.
    The defendants admit that the guardian is the person to be taxed ; Payson v. Tufts, 13 Mass. R. 493; and the plaintiff contends that the property follows the guardian. The liability to be taxed depends on membership ; and that the guardian is to determine. He is in loco parentis ; he is trustee both of the person and of the estate of his ward. Reeve’s Dom. Rel. 327; Bingham on Infancy, 168. The St. 1823, c. 106, in authorizing persons to separate themselves from one religious society and become members of another, did not intend to include minors ; who are incapable of making a contract. Neither does this case come within the provision, that any person who may come to dwell in any town, shall be taken to be a member of the oldest religious society in the town, unless he shall file a certificate that he has joined some other religious society. When a man dies, his membership ceases, and his children, if of age, choose for themselves their place of worship, and if under age, their guardian determines to what society he will pay their taxes.
    Merrick, for the defendants.
    By St. 1786, c. 10, § 3, a parish is authorized to grant money for parochial purposes, to be assessed on the polls and property within the parish. In the lifetime of the father, these minors belonged with to the First Parish in Fitchburg ; and as the guardian has filed no certificate pursuant to the statute of 1823, their relation to that parish remains unchanged.
    The opinion of the Court was afterwards drawn up by
    March 26th, 1830
   Parker C. J.

The general question is, whether the personal property of minors, who are under guardianship, is liable to taxation in the Da|,;sh of which their father was a member when he died and within the bounds of which they continue iu reside with their mother, or in another parish, in the same town, of which the guardian is an inhabitant and member And we are clearly of opinion that such property is to be taxed to the guardian by the parish within which he dwells and of which is a member. That it is to be taxed to the guardian and not to the minor, or at least that it may be properly taxed to the guardian, is settled in the case of Payson V. Tufts, 13 Mass. R. 492. And that the parish to which the guardian be longs has a right to the tax, follows from the provisions of Si 1786, c. 10, § 3.

The personal property of minors must be presumed to be in the actual custody or under the control of the guardian, and is therefore in the parish where he dwells. We do not find that any subsequent statute has expressly or by implication repealed this, those which provide for a removal from one parish or religious society to another having no bearing on the question. The minors cannot be members of any parish, in the sense of the law, in regard to taxation, having no voice in parish affairs , and though they may attend public worship in a different parish from their guardian, still their personal property is not there, nor are they to be taxed on account of it.

Judgment of Court of Common Pleas reversed. 
      
       See Revised Stat. c. 7, § 6,10.
     