
    The Inhabitants of Orleans versus The Inhabitants of Chatham.
    Au estate of freehold or inheritance, in trust, was held to confer a settlement under the fourth mode in St. 1793, c. 34, upon the cestui que trust.
      
    
    Assumpsit for expenses incurred in supporting Priscilla Hayden, a pauper, whose settlement was alleged to be in Chatham.
    The principal question in the case was, whether the pauper had acquired a settlement in Orleans, according to the fourth mode described in St. 1793, c. 34, by owning an estate of “ freehold in the town &c., of the clear yearly income of three pounds, and taking the rents and profits thereof three years successively.”
    
      It was proved or admitted, that in the year 1802 Freeman Higgins, the father of the pauper, by deed of bargain and sale, for the consideration, as expressed in the deed, of 1500 dollars, conveyed his real estate in Orleans to one Doane, but that Higgins continued in possession of it until his death, which happened in 1804 ; and there was no evidence, other than the acknowledgment contained in the deed, of any consideration being actually paid by Doane, nor of any rent or other compensation paid by Higgins for the use and occupation of the premises. Doane was a creditor of Higgins, but the debt due to him was paid out of other property left by Higgins. After the death of Higgins, three persons were agreed upon by his heirs, there being six children living, to divide this real estate into six whole and two half shares, Doane being present and assenting to the agreement; and soon afterwards Doane executed a deed of one share to each of the children except Priscilla, and they respectively entered into possession of the parts thus conveyed to them. There was no evidence of any consideration paid by any of them for the conveyances, but on the contrary it was testified that none was paid. The pauper testified that Doane, soon after this, executed and delivered to her a bond to secure to her the seventh part, which in the division before mentioned had been assigned to her. She lived in the house standing on the land, until it was taken down, which was soon after her father’s death, and occupied and improved the land set off to her, either by herself, or by her son Freeman Hayden, who lived with her and worked upon the land for her use. The bond from Doane to Priscilla was not produced, but a bond from Doane to Freeman Hayden was in the case, made in February, 1814; at which time Freeman Hayden gave his bond to Doane with condition to support his mother during her life. The estate was occupied by the pauper, as above mentioned, for more than three years, and was of an annual income exceeding ten dollars.
    Marston, for the plaintiffs,
    contended that the pauper had no estate of freehold or inheritance within the meaning of the statute. Groton v. Boxborough, 6 Mass. R. 53. The legal estate was in Doane, and the pauper had no means of compelling him to a specific performance of the trust, except a personal security, this Court at that time not being invested with the powers which it now has in such cases.
    
      Reed, for the defendants.
    Nothing passed by the deed to Doane, there being no consideration. But if the deed was valid as against the pauper, it was fraudulent and void as to third persons. The town of Orleans stands in the same relation as a creditor of the grantor would, and may avoid the deed. Hills v. Eliot, 12 Mass. R. 26. If the deed was not fraudulent, then Doane held the land in trust for Higgins and his heirs, which is apparent from the bond given by Doane ; and the property enjoyed by the pauper was an estate of freehold or inheritance within the intention of the statute. Newhall v. Wheeler, 7 Mass. R. 189 ; Conway v. Deer-field, 11 Mass. R. 332.
    
      L. Shaw, in reply. The statute prescribing the modes of obtaining a settlement lays down a number of rules, which, though founded on expediency, are in some degree arbitrary. It is to be construed strictly, and there is no equivalent which can be substituted for the statute requisitions. The deed from Higgins was binding upon himself and his heirs. Doane accepted the grant, and the land bécame vested in him. It is said the town may be considered as a creditor ; if they were claiming the land, there might perhaps be something in the argument. The legislature must have meant that the estate of freehold or inheritance should be in the ordinary way, and not a trust estate. In Groton v. Boxborough it was held that an equity of redemption, while the mortgager continued in possession, was within the statute ; but such an estate has all the qualities of a legal estate, except that it is liable to a particular charge. No writing being produced to show that Doane held in trust, the trust must be considered as void by the statute of frauds. What was in the bond given to the pauper, we do not know. If the Court adopt the construction, that the estate of freehold or inheritance must be the legal estate, it will further the view of the legislature, which was, to have a plain, practical rule, by which towns might ascertain their respective rights in regard to the support of paupers.
    
      
       Under St. 1793, c. 34, § 2, art. 4, it is not necessary that the pauper should have actually lived on the estate, but by St. 1821, c. 94, in which this article is repealed, such actual living on the estate is rendered a requisite. See Mansfield v. Pembroke, 5 Pick. 449; Weston v. Reading, 5 Conn. R. 255
    
   Parker C. J.,

in giving the opinion of the Court, said that after the conveyance from Higgins to Doane, the seisin of the land, as between them, was in Doane. If the deed was fraudulent, it was void only as against a creditor of Higgins. The town of Orleans was not a creditor. On the death of Higgins, the land was treated by his children and by Doane just as if Higgins had died seised, and Doane gave releases, without consideration, to the children of Higgins, excepting the pauper. Why he omitted to give one to her, does not appear ; but this seems to be unimportant, she hav ing enjoyed the rents and profits in the same manner as if the estate had descended to her. Instead of a deed he gave her a bond. This bond is lost, and its contents cannot be ascertained. The best account of it is from the pauper herself, that it was for the purpose of securing to her the seventh part of the land ; and her testimony is corroborated by an allusion to the bond in the subsequent one of 1814. Doane there undertakes to convey to Freeman Hayden, at the decease of Priscilla, the land which was set off to Priscilla. The presumption is violent, that the bond to Priscilla was of the same nature as the one to her son. The question then is, whether an estate of' a cestui que trust, is such an estate as the statute requires. The statute does not say whether it shall be the legal estate or not, but only that it shall be an estate of freehold or inheritance ; and these terms will include a trust estate of freehold or inheritance. It is true that this is an arbitrary provision of the legislature, and, as was said in the argument, there is no harm in giving it a strict construction ; and, this is giving it a strict construction. The pauper had ,a right to the rents and profits, and it is within the intention of the statute, that the town enjoying the taxes on the land for a certain length of time, should bear the burden of supporting the owner if she afterwards needs their assistance.

Plaintiffs nonsuit.  