Inhabitants of Somerville v. Inhabitants of Smithfield

• Decision Date: 23 January 1928
• Citation: 140 A. 195
• Parties: INHABITANTS OF SOMERVILLE v. INHABITANTS OF SMITHFIELD.
• Court: Maine Supreme Court

140 A. 195

INHABITANTS OF SOMERVILLE

v. INHABITANTS OF SMITHFIELD.

Supreme Judicial Court of Maine.

Jan. 23, 1928.

question of fact about which intelligent and conscientious men might differ.

On motion from Supreme Judicial Court, Lincoln County, at Law.

Action by the Inhabitants of Somerville against the Inhabitants of Smithfield.Verdict for plaintiff.On motion for a new trial.Motion overruled.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and PATTANGALL, JJ.

George W. Heselton, of Gardiner, Herbert E. Locke, of Augusta, and Cyril M. Joly, of Waterville, for plaintiff.

Gower & Shumway, of Skowhegan, for defendant.

PHILBROOK, J.This is an action brought by the inhabitants of Somerville against the inhabitants of Smithfield to recover the expense of pauper supplies furnished by the plaintiffs to one Harlow Bigelow.The plaintiffs recovered a verdict, and the case is before us on motion for a new trial.There being no exceptions presented, we adopt the familiar rule that the jury was fully and correctly instructed regarding the law pertaining to the case.We are to examine the facts with a view to ascertaining whether the jury correctly interpreted the facts in the light of the instructions given, or whether there was plain and manifest failure to so do, and that bias, prejudice, or such misunderstanding of the law influenced their deliberations to such an extent that we should disregard the verdict and grant a new trial.

Harlow Bigelow is the legitimate son of Levi H. Bigelow; was born in Smithfield, April 6, 1809; and therefore became 21 years of age April 5, 1890.He could not acquire a pauper settlement in Smithfield merely because he was born there.R. S. c. 29, § 1, par. 3.When he was about two years old his father moved to Augusta, taking Harlow and the other members of his family with him.The father and his family must have lived in Augusta for a sufficient time and under such circumstances that he gained a pauper settlement, for it is admitted that on July 12, 1888, Harlow Bigelow had a pauper settlement in Augusta.This must have been a derivative settlement, since legitimate children have the settlement of the father, if he has any in the state.R. S. c. 29, § 1, par. 2.

By virtue of R. S. c. 29, § 3, a pauper settlement, acquired under existing laws, remains until a new one is acquired.A pauper settlement once acquired can be defeated only by one of three ways: (1) A former settlement is defeated by the acquisition of a new one.(2) When a person having a pauper settlement in a town has lived or shall live for five years in any unincorporated place or places in the state, he and those who derive their settlement from him lose their settlement in such town.(3) Whenever a person bavin; a pauper settlement in any town in the state shall live for five consecutive years beyond the limits of the state without receiving pauper supplies from any source within the state, he and those who derive their settlement from him lose their settlement in such town.We are not called upon to discuss the provisions of statute regarding pauper settlement of women which may be affected by marriage, since those provisions have nothing to do with the present case.Provisions 2 and 3 have no application here.It is claimed by the plaintiff that Harlow Bigelow, in his own right, acquired a pauper settlement in Smithfield which he continued to enjoy until the date of the writ, and thereby his original derivative settlement in Augusta had been lost.

In the year 1888 an arrangement was made between Harlow and his father, and Harlow's great uncle, John Harlow Bigelow, whereby Harlow was to go to a farm in Smithfield, known as the Marston farm.It is not denied that the uncle told Harlow:

"If you will go out on the farm and stay with your father and brother—sick brother Frank—I will buy the farm."

Pursuant to this agreement, Harlow and his father and the brother Frank moved to the Marston farm in Smithfield on July 12, 1888; Harlow then being a minor.On being asked as to his intention in regard to living on that farm when he went there, he answered:

"To live there right along, because I expected to have the place.That was the agreement between my father and uncle."

Since Harlow had a derivative settlement in the city of Augusta at the time when he moved to Smithfield, the plaintiff town must prove that, for at least five successive years between his becoming of age and the date of the writ, Harlow Bigelow had a home in the defendant town without receiving pauper supplies either directly or indirectly, and in the same manner had not since acquired a settlement in any other town.Ellsworth v. Bar Harbor, 122 Me. 356, 120 A. 50.In the case just cited the court reiterated the familiar doctrine that:

"To establish a home in the first instance in any town there must be personal presence with an intent to remain, or in other words, to reside there.If absence from such town is later shown before five successive years have elapsed, it must be made to appear that such absence was only temporary, that there was a fixed purpose to return.The home must be continuous.If within the five years the person is absent from the town without an intention of returning to it the continuity of his home is broken, and the settlement is not acquired.To continue a home while absent there must be at all times an intention to return to it.The intent need not at all times be active in the mind, but as often as it is the subject of thought at all, the animus revertendi must be found to exist, or the home is lost."

On January 18, 1889, Harlow was married to Cora Bickford, daughter of Charles Bickford, and they lived on the Marston farm for a time.It should be noted that upon the date of that marriage he was still in his nonage.Soon after that marriage Harlow and his wife went to a farm known as the Stevens place, located in the same town of Smithfield, which farm he leased for a year, and carried it on for halves.He took no household goods with him, as the house was furnished.He planted and harvested a crop on the Stevens place, and, at the expiration of his year, he went from the Stevens farm to the Charles Bickford place in Belgrade, and in the spring of 1891he moved back to the Marston farm.In a letter written by Harlow to the attorney for the defendant town on April 12, 1926, Harlow stated that he moved from the Marston farm to the Stevens farm in Smithfield in the year 1890; that he planted potatoes on the Stevens farm; and that in the fall of 1890he moved from the Stevens farm to the Charles Bickford place in Belgrade, and in the spring of 1891he moved back to the Marston farm in mud time.In his testimony at the trial it would appear that Harlow moved back to the Marston farm at the expiration of his lease of the Stevens place, and that, while he was on the Stevens place, he visited back and forth at the home of Charles Bickford, exchanging work in haying, but he does not say that he moved to the Bickford farm from the Stevens place before returning to the Marston farm.

In argument, the defendants emphasized the reasons which they allege controlled the action of Harlow in going to the Stevens place, and thence to the Bickford place, urging that the real reason which induced Harlow to go to the Stevens place was because be had not received a deed of any portion of the Marston farm, and was disappointed to such an extent that he left the Marston farm without any intention of returning there.In his testimony Harlow says that he went to the Stevens farm because the work was too hard for his wife on the Marston farm.Whatever influences caused him to leave the Marston farm at the time which he did, yet the fact remains that in the spring of 1891he did receive the promised deed, and in mud time of that year he returned to the Marston farm.Prom that time onward his movements and intentions become important, because he had then reached the age of maturity, and could begin to acquire a pauper settlement in his own right.The defendants claim that there were several interruptions to his residence in Smithfield after 1891 to such an extent and of such nature as to preclude him from obtaining pauper settlement in his own right after he returned to the Marston farm in 1891.It is urged that Harlow drove a Star route in 1893 from Augusta by the way of Belgrade to New Sharon, and that at another time he drove another Star route from North Belgrade to Smithfield, but a careful examination of the facts shows that Harlow went to the Marston farm in Smithfield more or less and always returned there whenever opportunity or necessity permitted him to do so.It would exceed the limit of this opinion to recite in detail all of the movements of Harlow from the time when he went on to the Marston farm in 1891, as a man who had reached the age of maturity, and the date in 1901 when the foreclosure of a mortgage dispossessed him of his interests in that farm.This was a period of about ten years.And in his direct testimony, on page 36 of the record, he was asked, "From the time that you went on to the Marston farm up to the time that you left the Marston farm in 1901, if that is the date, did you have any intention of changing your residence?"To which a negative answer was returned.

We feel justified in saying that, so far as this element of the case is involved, the jury properly found that Harlow, after receiving the deed in 1901, remained upon the Marston farm in Smithfield for more than five successive years without receiving pauper supplies, and had thereby established a pauper residence in the defendant town, after he attained his majority.

A second issue presented by the defendants is this: If Harlow Bigelow did gain a pauper settlement in Smithfield, did he lose it by gaining one elsewhere? and, as there is no contention that he gained one elsewhere, except in Augusta, the question may be stated, "Did...