delivered the opinion of the Court at the ensuing June term, in Kennebec.
From the facts reported, the legal presumption must be that Samuel Billings, the husband of Mary Billings, was dead prior to the 21st of March, 1821. Between the years 1800 and 1805, he went to sea as a common sailor, and has never since been heard of; though there was a rumor that he was impressed on board a British armed vessel; but whether there was any foundation for the report does not appear; and its probability is entirely done away by the fact of his not having returned, if alive, soon after the peace of 1814, between this country and Great Britain, when he must doubtless have been exchanged and released. At any rate the presumption of his death before 1821, is on every principle admissible. Such being assumed as the fact, Mary Billings, his widow, was capable of gaining a settlement in her right; as she resided, dwelt and had her home in Saco, on the 21st day of March 1821, she, by virtue of the act passed on that day, eh. 122, gained a settlement in Saco. But her two illegitimate children who were then living with her, and composing part of her family and dependent upon her, were incapable of gaining a Settlement in their own right by virtue of said act. And as they were born before their mother gained her settlement in Saco, they have no derivative settlement there under her. The second section of the act declares that “ illegitimate children shall follow and have the settlement of their mother at the time of their birth, if any she shall then have within the State.” Where the mother’s settlement was, at the time of their birth, is an immaterial inquiry in this case, inasmuch as it was not in Saco ; probably it was in Kittery. The above quoted passage is precisely in the same language used in the act of Massachusetts of 1793, which was in force in this State until our statute of 1821 was enacted. The authority cited by the counsel for the plaintiffs to show that the children gained a settle-*273moni iu their own right, do not apply. In the present case there is no proof of their emancipation, or any thing equivalent; indeed the contrary appears to be the fact. Hallowell v. Gardiner, 1 Greenl. 93, The plaintiffs are entitled to judgment.