Treasurer and Receiver General v. City of Boston

• Decision Date: 02 January 1918
• Citation: 229 Mass. 83
• Parties: TREASURER AND RECEIVER GENERAL v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 83

TREASURER AND RECEIVER GENERAL v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1918

December 4, 1917.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.

Pauper, Derivative settlement. The provision contained in R.L.c. 80, Section 6 (repealed by St. 1911, c.

669, Section 7,) that "A person who is absent from the Commonwealth for ten consecutive years shall lose his settlement," does not apply to the derivative settlement of a wife, which she acquired by marrying a man then having a settlement in this Commonwealth which he afterwards lost by leaving the Commonwealth and remaining continuously absent for ten years thereafter while his wife continued to live in this Commonwealth without acquiring any other settlement.

CONTRACT by the Attorney General in the name of the Treasurer and Receiver General under St. 1907, c. 474, Section 10, as amended by St 1912, c. 17, against the city of Boston to recover amounts paid at the rate of $4 a week for the support at the Lakeville State Sanatorium of two persons alleged to have had throughout the period of such support legal settlements in Boston. Writ dated July 8, 1916.

The first count of the declaration related to the support at the sanatorium of one John H. Clark. The second count related to the support at the sanatorium of Jennie McLean from December 7, 1915, to May 31, 1916, amounting to $101.41.

In the Superior Court the case was heard by Dubuque, J., upon an agreed statement of facts. The second paragraph of the agreed statement of facts related only to John H. Clark and has become immaterial because the exceptions in regard to the first count were waived. The rest of the statement, consisting of the first and third paragraphs, was as follows:

"1. Jennie McLean and John H. Clark were inmates of the Lakeville State Sanatorium for the periods of time set forth in the plaintiff's declaration. They were each supported therein during said periods at the expense of the Commonwealth. No security has been given for their support, and no payment has been made to the Commonwealth on account thereof."

"3. Jennie McLean was born in Ireland on July 26, 1862. In 1892 she came to Boston and was married to Charles McLean, who had a settlement in Boston. In 1900 Charles McLean moved to Worcester and remained there until January, 1901, when he went to New York in the State of New York, and has resided there continuously to the present time. Jennie McLean continued to reside in Boston until admitted to said Sanatorium on December 7, 1915."

The judge found for the plaintiff in the sum of $71.43 on the first count of the declaration and in the sum of $101.14 on the second count, $172.57 in all, with interest from the date of the writ. By order of the judge judgment was entered for the plaintiff in the sum of $178.05; and the defendant appealed.

K. Adams, for the defendant.

W.

H. Hitchcock, Assistant Attorney General, for the plaintiff.

CROSBY, J. This is an action brought under St. 1907, c. 474, Section 10, to recover for the support of two patients in the Lakeville State Sanatorium for consumptives. The defendant having waived its exceptions as to the first count to recover for the support of John H. Clark and admitted its liability therefor, the question remains whether it is liable for the support of Jennie McLean, whose husband left the Commonwealth in 1901 and was continuously absent for ten years thereafter it being the contention of the defendant that the settlement of the wife was defeated when that of the husband was lost.

It is conceded that, at the date of the marriage of these parties to each other, Charles McLean, the husband, had a legal settlement in Boston and by the marriage the wife derived a settlement from him. R.L.c. 80, Section 1, cl. 1. When McLean left the Commonwealth in 1901, his wife continued to...