
    
      The Inhab. of Milo vs. The Inhab. of Kilmarnock.
    A minor, illegitimate and non compos mentis, was held to be incapable of gaining' a seTOWaent in a town by residing therein at the time of its incorporation, un dor the provisions of stat. of 1821, ch. 122 — ■ its mother living at the time, and * there having been no emancipation.
    The words,iC all persons,” in the statute, must be regarded as applying to those persons who are legally capable of gaining a settlement in their own right in any other mode*
    | This was assumpsit for expenses incurred by the plaintiffs in J the support of Lucinda Boobar, a pauper, and was submitted for1 the decision of the Court upon the following agreed statement oí facts.
    The pauper is the illegitimate and non compos child of Hannah Boohar, and was born in 1818, in an unincorporated place, where her mother then lived with her father, Benjamin Boohar, which place was, in 1824, incorporated into a town called Kil-marnock, Hannah at that time being 21 years of age. At the time of the birth of the pauper, the mother had no settlement in any incorporated town or plantation in the State. In 1824, immediately after the incorporation of Kilmarnock, Benjamin Boo-har, with his family, including his daughter Hannah and the pauper, moved into the town of Milo, where they have ever since resided, neither of them receiving supplies as paupers from any town or place until September, 1833 ; since which time the pauper has been supported by the town of Milo.
    
    
      Kent, for the plaintiffs,
    contended that the pauper gained a settlement in Kilmarnock under the 5th mode prescribed by stat. of 1821, ch. 122, which is in these words, “ all persons dwelling and having their homes in any unincorporated place, at the time when the same shall be incorporated into a town, shall thereby gain a legal settlement therein.” Her being non compos at the time does not prevent the operation of the statute in regard to her. Fairfax v. Vussalhorough, cited in Hallowell v. Gardi-ner, L Greenl. 96. Nor her being a minor, Sidney v. Winthrop, 5 Greenl. 123; Luhec v. Easiport, 3 Greenl. 220.
    The settlement thus gained has never been lost. For though the pauper, has resided in Milo five successive years with her mother, she could not thereby gain a derivative settlement under the mother. Petersham v. Dana, 12 Mass. 429; Boylston v. Princeton, 13 Mass. 381; Sidney v. Winthrop, 5 Greenl. 123.
    She could not gain a new settlement in her own right,í^feuse being an infant and non compos she could not be considered as capable of exercising any volition or will in changing her residence.
    
      Starret, for the defendants,
    cited Hallowell v. Gardiner, 1 Greenl. 96 ; Somerset v. Dighton, 12 Mass. 382; Biddeford v. Saco, 7 Greenl. 270; Sidney v. Winthrop, 5 Greenl. 123 ; Lu-bec v. Eastport, 3 Greenl. 220; Wright v. Wright, 2 Mass 10 ; Sumner v. Sebee, 3 Greenl. 223.
   Parris J.

By statute, chap. 122, sect. 2, it is provided that illegitimate children shall .follow and have tho settlement of their mother, at the time of their birth. This is tho precise language of the statute of Massachusetts upon the same subject, in full force at the time of the organization of the government of this state. Statute of Massachusetts of 1793, chap. 34, sect.-2. And it has been judiciously settled that the meaning of this provision is, that the settlement which the mother had at the time of the-birth of tho child shall be the settlement of the child until it shall gain a new settlement by its own act; and that illegitimate children do not follow a ii'ew settlement acquired by the mother. Boylston v. Princeton, 13 Mass. 381.

At the time of the birth of Lucinda Boobar, the pauper, her mother had no settlement in Kilmarnock, and consequently the pauper has no derivative settlement there. — Did she gain a settlement in her own right in Kilmarnock, in the fifth mode prescribed by our statute, viz. by dwelling and having her home there when it was incorporated into a town ? — The language of the statute is sufficiently broad to include her, but it is not more general than the subsequent part of the same section, which provides that any person resident in any town at the date of the passage of the Act, 21st March, 1821, who has not within one year previous to that date received support or supplies from some town, as a pauper, shall be deemed to have a settlement in the town where he then dwells and has his home. This Court has decided in' Biddeford v. Saco, 7 Greenl. 270, that an illegitimate child living with its mother and composing part of her family was incapable of gaining a settlement by virtue of this provision. It has also been decided in Hallowell v. Gardiner, 1 Greenl. 93, that by the words all persons, in the statute of Massachusetts of 1793, ch. 34, in the ninth mode of gaining a settlement (which is the same language used in our statute prescribing the fifth mode of gaining a settlement) are intended only those persons, who are legally capable of gaining a settlement, in their own right, in any' other mode.

A legitimate child, while a minor and during the life of its parents, could gain no settlement in its own right by residing in a town at the time of its incorporation, or on the 21st of March, 1821, unless such child was emancipated. Sumner v. Sebec, 3 Greenl. 223. Such minor would gain only a derivative settlement through its father, and yet the language of the statute “ all persons dwelling and having their homes,” &.C. “ Any person resident in any town,” &c. is sufficiently broad to include them. .But an illegitimate child could gain no derivative settlement from its mother subsequent to that gained at its birth ; and unless emancipated can gain none in its own right. Biddeford v. Saco, ut supra. Lucinda was not emancipated. Her mother had the rightful custody of her person : was bound to support and maintain her, and she was, of course, a part of her mother’s family. Wright v. Wright, 2 Mass. 110. And the mother was entitled to all her services. Somerset v. Bighton, 12 Mass. 333.

The cases cited by the plaintiffs’ counsel, are all cases where' the pauper was emancipated. In Sidney v. Winthrop, 5 Greenl. 123, the mother of the pauper was non compos, and it is apparent that the court considered the pauper as emancipated. In Lubec v. Eastport, 3 Greenl. 220, the pauper was a minor and both parents were dead, and the court held that to be a case of emancipation. Fairfax v. Vassalborough, 1 Greenl. 96, note, was also a case where both parents were dead. In Wells v. Kennebunk, 8 Greenl. 200, the court considered the pauper emancipated. In Leeds v. Freeport, 1 Fairf. 356, both parents of the pauper were dead previous to 1821; he was a minor and had a derivative settlement in Freeport, but was dwelling with his master in New Gloucester, under indentures, on the 21st March, 1821. The Court considered him as emancipated, and that he gained a settlement in his own right; and such would have been the decision in Sumner v. Sebec, if the proof had shown an emancipation of the pauper.

As to the power of minors to acquire a settlement in their own right, we are not aware of any distinction between legitimate and illegitimate. Unless emancipated, neither have that power, either by dwelling and having their home in an unincorporated place when the same is incorporated into a town, or by having been resident in any town on the 21st March, 1821.

It was urged in argument, that it was the intention of the Legislature to give a settlement, in some one of the modes speci-fled, to all persons residing within the State, or who might be born within it. If such was the intention, it has failed, as this Court has decided that the provisions of the pauper laws do not extend to plantations. Blakesburg v. Jefferson, 7 Greenl. 125; Means v. Blakesburg, ibid, 132.

We repeat what we said in Biddeford v. Saco, “Where the mother’s settlement was, at the time of the birth of Bucinda, is an immaterial inquiry in this ease,” inasmuch as it was not in Kilmarnock.

If she had no settlement in the State, then her illegitimate child can have none until it is capable of acquiring one in its own right; and as, in the meantime, the mother will have the care and custody of the child, as natural guardian, there will be no occasion for a separation of the child from the parent. If the mother gain a settlement within the State, she will be entitled to support under the 3d sect, of stat., chap. 122. If the child do not gain a settlement, it will be entitled to support under the ] 8th sect, of the same statute. We are all of opinion that, upon the facts agreed, the settlement of the pauper was not in Kilmarnock,  