The father of the pauper whose settlement is in controversy, died, some years prior to 1839, in the defendant town without having gained any settlement in this state.
The, pauper, Eliphaz Keizer, was born January 10, 1822, and resided with his mother, Polly Keizer, on a small place owned by her, in the defendant town, where she had her settlement until January 29, 1839, when she was married to one Pratt whose settlement was then in Palermo; and thereupon, Pratt went to live with his wife, upon her place, and continued to reside there for several years — the precise length of his residence there being one of the facts in dispute.
The plaintiffs contended, and the jury, by a special verdict, found that, Pratt gained a new settlement in the defendant town by having his home there five successive years, at least, prior to January 9, 1843, (when the pauper became of age) without receiving, directly or indirectly, supplies as a pauper.
In December, 1840, more than two years before the pauper attained his majority, he fell sick and went to his uncle’s, in Troy, where he was furnished certain supplies by that town.
The defendants contended : (1) That if the pauper, when he received the supplies, was not a member of his step-father’s (Pratt’s) family, then he was emancipated, and could no longer follow any new settlement which his mother might acquire by her husband’s continuous residence in Troy ; and (2) But if he was a member of his step-father’s family, then the supplies were indirect supplies to the step-father, and that therefore the step-father had no home in Troy for five successive years before the pauper became of age without indirectly receiving supplies as a pauper.
The jury, by a special verdict, found that the pauper was not emancipated by his mother after her marriage to Pratt; and the presiding justice instructed the jury that the marriage itself did not emancipate the pauper, and that the settlement of the pauper was not affected by his receipt of the supplies.
The defendant’s counsel admit in their argument that the pauper was not a member of Pratt’s family in the fall of 1840 when *490he was sick and supported by Troy, and that Pratt performed none of the obligations of a father towards him. This admission acknowledges the soundness of the instruction that the settlement of the pauper was not affected by the supplies furnished by the defendants in 3 840 ; for never having assumed the care and support of the pauper, he did not stand in loco parentis. Freto v. Brown, 4 Mass. 675. Comm. v. Hamilton, 6 Mass. 273, 275. Worcester v. Marchant, 14 Pick. 510. Mulhern v. McDavitt, 16 Gray, 405. And not being bound to support, the supplies furnished to the pauper, while he was sick at his uncle’s, were not indirect pauper supplies to Pratt. Greene v. Buckfield, 3 Maine, 136. Dixmont v. Biddeford, 3 Maine, 205. Hallowell v. Saco, 5 Maine, 143. Raymond v. Harrison, 11 Maine, 190.
The only remaining question raised by the defendants, at the argument, is — Did the marriage of Polly Keizer to Pratt, per se, emancipate her son Eliphaz.
The statute which governs this point provided :
(1) A married woman shall always follow and have the settlement of her husband, if he have any within this state.
(2) Legitimate children shall follow and have the settlement of their father, if he have any within this state, until they gain a settlement of their own; but if he have none, they shall in like manner follow and have the settlement of their mother, if she have any. B. S., 1840, c. 32, § 1.
It was early contended that, the first clause of the second provision above quoted, literally construed, gave a son a settlement acquired by his father at any period of the son’s life, even after ■the latter had attained his majority, left his father, married a wife .and become the father of a family of his own — provided that the son had not gained a settlement of his own. But the court said that while the language admitted such a construction, such could not have been the intention of the legislature; that “wives and children may have derivative settlements, because the husband and the father have the legal control of their persons and the right to their services; the wife cannot be separated from the husband, or minor children from the father; but when the father ceases to have any control over his children or any right to their service, it *491is not easy to devise any good reason why they should not be considered as emancipated, and as no longer having a derivative settlement with the father on his acquiring a new settlement. And when the reason’ ceases, the law founded on that reason ceases. That upon the father’s gaining a new settlement, a child of full age, although voluntarily living with him, does not have the new settlement with his father, but his former settlement I’emains.” Springfield v. Wilbraham, 4 Mass. 493. This case was cited by this court in deciding a similar case. Hampden v. Brewer, 24 Maine, 281.
As an illustration of this principle it has been held that where a minor daughter became lawfully married, she thereby went out of the control of her parents and was emancipated, and hence could no longer follow their settlement subsequently acquired. Charlestown v. Boston, 13 Mass. 472. “This is analogous,” said the court, “to the doctrine of emancipation in the English books, and according to the principles settled in Springfield v. Wilbraham ; and her continuing to reside in the house of her mother does not affect the case, for this must have been voluntary on her part and with the consent of her husband; and the mother no longer retained any control over the person, or any right to the services of the daughter. . . Children are no longer children
so as to take a new settlement acquired by their parents when capable of gaining one for themselves, if they are separated from their parents by marriage or other legal emancipation.” This case is followed by Shirley v. Lancaster, 6 Allen, 31, and the reasoning in Springfield v. Wilbraham, approved.
But the original doctrine of emancipation founded upon majority is not universally applied ; for a person who has become twenty-one years of age is not thereby emancipated when, by reason of mental imbecility, he is compelled still to remain dependent upon his parents for guidance and support. Upton v. Northbridge, 15 Mass. 237. Wiscasset v. Waldoborough, 3 Maine, 388. Monroe v. Jackson, 55 Maine, 55 and cases.
When, in 1822, the second clause of the second provision hereinbefore recited came up for construction, the court decided that legitimate children, under age, having the settlement of their *492mother, follow a new settlement acquired by the mother although it be derived by a subsequent marriage. Plymouth v. Freetown, 1 Pick. 197. In 1826, the same question came before this court in Parsonsfield v. Kennebunkport, 4 Maine, 47. Counsel for the defendant town in that case contended that the statute should not be construed literally, but that the principles enunciated in Springfield v. Wilbraham, should be applied, and that the provision did not apply to a settlement of the mother derived by marriage, but to one acquired in some way consistent with her right to control the persons of her minor children. But the court followed Plymouth v. Freetown, and denied the application of Springfield v. Wilbraham, although they declined to decide whether the marriage of the mother ipso facto emancipated her minor children.
Again the question arose and was decided the same way in Great Barrington v. Tyringham, 18 Pick. 264. In that case the minor had the settlement of his mother in another state where 'he was learning a trade. It was held that he followed the new settlement of his mother acquired by a second marriage in Massachusetts, although he never resided there. Bishop, for the defendants, contended that the pauper did not follow the settlement acquired by her subsequent marriage, “inasmuch as his mother was absolved from all obligations to support him by the marriage,” and cited Springfield v. Wilbraham. But Shaw, C. J., while he approved of the “limitations of the generality of the words of the statute,” as decided in Springfield v. Wilbraham, said this case was not “within the principle of Springfield v. Wilbraham.”
"We know of no case in this state or in Massachusetts which decides that the marriage of .the mother is the emancipation of her minor child by a former marriage. But there are several wherein it is held that the marriage of a mother does not emancipate her illegitimate child. Fayette v. Leeds, 10 Maine, 409. Sprague, counsel for the plaintiffs, argued that the same reasons assigned for the contrary doctrine “would apply to the case of a widow with children by a former husband, in which case no one would ‘contend that on the second marriage they thereby became entirely emancipated.”
*493So whore a minor child is separated from his parents by being bound to service until twenty-one years of age by the overseers of the town wherein he has his settlement, ho is not thereby emancipated although the parental and filial relations are suspended permanently. Sanford v. Lebanon, 31 Maine, 128. Oldtown v. Falmouth, 40 Maine, 106.
If the marriage of the mother, ipso facto, emancipated her child, then the receiving of the child into the step-father’s family would not affect the emancipation, any more than the continuance of a child to reside with his father after his majority; or a married minor daughter continuing to reside with her mother. Charles-town v. Boston, 13 Mass. 469. This proposition would militate with well settled principles concerning the relation between stepfather and step-son when the latter is received into the former’s family.
Moreover this precise question has been decided by this court and is res adjudicata. In Dennysville v. Trescott, 30 Maine, 470, the court say : “The parental relation subsisting between her (the mother) and her children is not entirely changed by the second marriage. Why should the law require in a case like this that the children should follow the mother’s settlement, unless she had some duties to discharge in relation to them and that it would be an act of inhumanity to separate them ? . . They cluster around her and the law presumes she will not be unmindful of their welfare.”
We cannot say that the verdict is against the weight of evidence so as to warrant us in setting it aside.
Motion and exceptions overruled.
Appleton, C. J., Barrows, Daotorth, Peters and Symonds, JJ., concurred.