The opinion of the Court was drawn up by
Weston C. J.The pauper was born prior to the separation of this State. Her settlement therefore, at the time of her birth, must depend upon the law of Massachusetts. By the statute of that state of 1793., c. 59, which was the law existing at the birth of the pauper, legitimate children were to follow and have the settlement of their father, if he shall have any within the commonwealth, until they gain a settlement of their own ; but if he shall have none, they shall in like manner follow and have the settlement of their mother, if she shall have any. The same provision has been reenacted in this state. Statute of 1821, c. 122, § 2. In all the cases, in which a .child has been held to follow the settlement of the mother, under this mode, the father never had any settlement in the state. We are satisfied, that posthumous children have a derivative settlement from their father, if he had any; and that in this respect they are in the same condition, with such as are *379born in his lifetime. Every legitimate child in ventre de sa mere, is considered as born for all beneficial purposes. Coke Lit. 36; 1 P. Wms. 329.
It has become a-principle of law, in the construction of the statutes for the relief of the poor, that minor children, Until emancipated, are incapable of gaining a settlement in their own right. The reason for the establishment of this rule was, that they might not be separated from their parents. It has been applied however generally ; and sometimes where its application has had the effect, to separate the settlement of the minor from that of the surviving parent. Biddeford v. Saco, 7 Greenl. 271, is a case of this character. There two minor children with their mother, their surviving parent, dwelt and had their home in Saco, on the twenty-first of March, 1821; yet they were held incapable of acquiring a settlement in their own right; although a different decision would have given them the same settlement with their parent, and 'that which actually obtained, separated their settlements. Milo v. Kilmarnock, 2 Fairf. 455, was a decision to the same effect. These were cases of illegitimate children, who although they take the settlement of their mother, at the time of their birth, do not follow one, which she may subsequently acquire. Nor in this case did the pauper follow the settlement of her mother, the law giving her the settlement of her father, which was in Jay, until she acquired one in her own right. And although she resided and had her home in Wilton, on the twenty-first of March, 1821, yet being a minor, and not emancipated, she thereby gained no settlement in that town.
In Dedham v. Natick, 16 Mass. R. 135, cited for the defendants, where a legitimate daughter was held to follow the settlement of her mother, who was her surviving parent, the decision depended upon the law in force prior to the act of 1793, c. 59, which was changed by that statute.
Defendants defaulted.