The opinion of the court was delivered by
Bennett, J.The inquiry, in this case, involves the place of settlement of Paul Willey and his wife. Was it in Walden, or Cabot, at the time Of the removal ? Prior to the first day of April, 1841, they had their settlement in Cabot, and on that day, they removed from that town to Walden.
It is claimed, that they subsequently gained a settlement in Walden, by a residence of seven years. But it appears, that in March, 1848, and before the seven years had expired, Willey’s family was in need of relief, and that upon application of Mrs. Willey, and •unknown to her husband, the town furnished them some relief; and when Willey learned the fact, he expressed his dissatisfaction. There is no pretence but what the family needed relief, and it is •not claimed that the relief furnished was colorable; but it is said, that the relief could only be furnished upon the personal application of Willey, or by his authority. It is made the duty of the overseer of the poor, to provide for the immediate relief of all persons residing, or. found in the town, when they fall into distress, and stand in need of relief. The statute does not require that they should wait until the pauper himself shall have made application for help, and we see no reason why the law should be so.
If there is a necessity for relief, and it is granted in good faith, that should be enough. The pauper may have become a maniac, and incapable of making application, or assenting to it when made.
The important question, on this bill of exceptions, is, whether Willey had such a freehold interest in lands in Walden, as to prevent his removal to Cabot. About the time he removed to Walden, he and his unmarried daughter bargained for fifty acres of land, at two dollars per acre. The daughter was to take the deed of the lot, under an agreement that Willey in the end should have a deed from her, of so much of the lot as he should pay for. The deed was given to the daughter, and she at the time paid fifty dollars towards the purchase, and Willey paid seventeen dollars. Subsequently, he paid twenty dollars more, and she the rest; and the case shows, that Willey and his family resided wpon this lot from *527that time, up to the time, and when he was removed. In Londonderry v. Acton, 3 Vt. 122, it was held, that a man could not be removed from one town to another, while he was owning and occupying a freehold estate. This case received the mature consideration of the court. Such is the English law; and it is immaterial what was the value of the freehold. In the case_ of the King v. Inhabitants of Martly, 5 East. 40, the pauper had applied for relief, and the value of the freehold was not sufficient to give him a settlement. Massachusetts has pursued the same course of decisions. The legal title to the fifty acres passed by the deed to the daughter; but she held the title to a portion of the lot, in trust for her father. There was what the law calls a resulting trust, so far as "Willey paid the consideration, when the deed was executed. The fact, that the daughter subsequently signed as surety for her father, and the husband of the daughter paid a part of the note, and also made a small advance to the father, can have no effect. Willey had never agreed that either the daughter or her husband should have a lien on his equitable estate, as a security.
The statute of 1793, in Massachusetts, provided for gaining a settlement, “by a person’s owning an estate of freehold in the town, “ &e., of the clear yearly income of three pounds, and taking the “rents and profits thereof, three years successively;” and in the case of Orleans v. Chatham, 3 Pick, 29, it was held, that an estate of a cestui que trust was such an estate as the statute required. “ The statute,” it is said in that case, “ does not say whether it shall “be the legal estate, or not; but only that it shall be an estate of “freehold, and the terms of the statute will include a trust estate “ of freehold, as well as a legal one, upon the ground that the genus ‘‘ includes the species.”
In the ease at bar, the person removed was in the actual possession of the trust estate, living upon the same, with his family, at the time of the order of removal. The same reasons, exist why there should not be a removal in the one case, as in the other; and we think the rule should be the same, whether the estate is a legal or an equitable freehold.
The judgment of the county court is reversed, and a new trial granted.