Conn.) TOWN OF MADISON v. TOWN OF GUILFORD 1047 to the future is admissible; but a letter, written by him after his removal to a town from the town of his residence at the time of the death of his father, residing therein, to the executor of his father, stating that he did not want the executor to save any land for him, was properly excluded as bearing on the pauper's intent. fendant in 1904, and defendant, which had paid | intent attending his acts and of an intent as plaintiff a part of the expense incurred, sought to recover the same, on the theory that the pauper belonged to plaintiff, and showed that on the settlement of the estate of the pauper's father, who died a resident of defendant in 1903. $117.73 remained in the hands of the executor in trust for the pauper, and that the trust was finally closed in August, 1910, a charge that the jury, in determining whether the pauper, when assistance was provided for him by plaintiff, was entitled to receive assistance, should consider the claim of defendant that the pauper had funds in the hands of the trustee available for his support, if necessary, was not objectionable, as leading the jury to consider that the financial resources of the pauper were immaterial on the question as to whether he was to be regarded as a recipient of assistance from plaintiff by reason of assistance furnished to his brother. [Ed. Note. For other cases. see Paupers, Cent. Dig. § 234; Dec. Dig. § 52.*] 6. PAUPERS' (§ 22*) - LEGAL SETTLEMENT EVIDENCE. A person's intent attending a change of place of abode from that of a then domicile, or continuance in such changed place of abode, is an important factor in determining the question of acquired domicile, within the pauper statutes, and the testimony of the person himself is admissible. [Ed. Note. For other cases, see Paupers, Cent. Dig. §§ 106, 107; Dec. Dig. § 22.*] 7. EVIDENCE (§ 471*)-OPINION EVIDENCECONCLUSION OF WITNESS. On the issue whether a person had acquired a legal settlement in a town, a question as to whether he had always made such town his home since a specified time is objectionable as involving a legal conclusion, for, though home is the fundamental idea of domicile, home and domicile do not always correspond. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2170-2185; Dec. Dig. § 471.*] 8. WITNESSES (§ 280*)-CROSS-EXAMINATION -QUESTIONS. Where, on the issue whether a person had acquired a legal settlement in a town, it appeared that such person was of inferior mental capacity, a question asked him on his crossexamination, as to whether he had always made the town his home since the death of his father, domiciled in another town, was objectionable as vague. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 993; Dec. Dig. § 280.*] 9. WITNESSES (§ 282*)-CROSS-EXAMINATION -LEADING QUESTIONS. Where, in an action by a town for supplies furnished a pauper, alleged to belong to defendant town, the issue was whether the pauper had a legal settlement in defendant town, and the pauper, testifying as a witness for plaintiff, stated that he had resided in defendant town from his birth to the death of his father, and that he remained on his father's farm several months after his father's death, a question on cross-examination, as to whether he had not always made plaintiff town his home since his departure from defendant town, was objectionable as leading, because defendant town made the pauper its own witness, and the court properly excluded the question. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 927, 989; Dec. Dig. § 282.*] 10. PAUPERS (§ 22*)-LEGAL SETTLEMENT EVIDENCE. In determining whether one has acquired a legal settlement, within the pauper laws, in a town to which he removed, evidence of his [Ed. Note.-For other cases, see Paupers, Cent. Dig. §§ 106, 107; Dec. Dig. § 22.*] 11. PAUPERS (§ 22*)-LEGAL SETTLEMENTEVIDENCE. On the issue whether an alleged pauper had acquired a legal settlement in a town after his removal from another town, evidence of his declaration that he had no place to which to go, made after his coming into the former town, was admissible as bearing on the question of his having a place of residence. [Ed. Note. For other cases, see Paupers, Cent. Dig. § 107; Dec. Dig. § 22.*] months duration. On December 3, 1910, the selectmen of Madison furnished him with aid as a person requiring such aid from them under the law regulating the support of the poor, and on that day gave to the defendant, as the town chargeable with his support, the notice prescribed in section 2485 of the General Statutes. December 10, 1910, they rendered to the defendant a bill for the expense thus incurred. Between December 9, 1910, and January 14, 1911, further aid was similarly furnished, and a bill therefor presented on January 14, 1911. Payment of these amounts not having been made, this action was brought to recover them. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes recover back the amount of these payments. | in unoccupied houses, huts, barns, and outThe facts thus far stated are uncontroverted. buildings, in doing, from time to time, such The issues joined called for the determination by the jury of two principal questions, to wit: First. Was Spencer, at the time when the aid was furnished him, entitled to it at the hands of the selectmen of Madison? and, second, Was the defendant chargeable with the expenses thus incurred, as being the town of Spencer's legal settlement? No complaint is made of the conduct of the cause as bearing upon the former of these issues. The latter, under the claims of the defendant and the conceded facts, involved two subordinate issues. One was whether or not Spencer had resided, within the meaning of the statute (General Statutes, § 2469), four years continuously in Madison between about April 8, 1904, and July 10, 1909; the other, whether or not he, having no family, had, while thus residing, maintained himself during the whole of such continuous period without becoming chargeable to the town. Under the evidence presented, the latter question became resolved into an inquiry as to whether help unquestionably given upon one occasion, in January, 1906, to his brother and family, with whom he was then boarding, was, under the circumstances, help given to him. The date upon which this assistance was rendered was such that, if it was to be regarded as rendered to Charles Spencer, that incident would necessarily defeat the defendant's claim that he had gained a settlement in the plaintiff town, with the inevitable result that his settlement in Guilford had not been lost. The assignments of error pursued before us, aside from those growing out of the introduction of testimony, while stated in several paragraphs, all gather about two matters. One of these relates to the first subordinate issue just referred to as to residence, and the other to the second of such issues as to the effect, under the circumstances, upon Charles Spencer's status of the assistance furnished to his brother Fred and family in January, 1906, as related. The reasons of appeal which are pertinent to the former of these issues are, adopting the enumeration of the defendant's counsel, five in number. The first in order is the court's failure to charge as requested in a specified request, identified by number. Reference to the request so numbered discloses that it does not deal at all with the subject in question, and we fail to find any other one which does in any way. Evidently this was included by inadvertence. The remaining four are concerned with the charge as made, and take exceptions to recited portions. Before passing to a consideration of these criticised passages, we ought to prepare the way by calling attention to the general situation with which the jury was called upon to deal. The plaintiff claimed to have shown that Spencer's life in Madison was passed in odd jobs as he was fitted to do, and in subsisting in part upon what he bought and in part upon what was given him in charity by those who took pity on him. The only period when the evidence of either party disclosed that he lived with any one, or in a house otherwise occupied than by himself, or otherwise furnished than with his few personal belongings, was one in 1906, when he lived in the family of his brother Fred. [1] The first exception is taken to the court's definition of the word "resided," as used in the statute. Its statement was that, "by 'resided' is meant a fixed, permanent, and established residence, as distinguished from a residence which is merely transient or temporary." This is the precise declaration of this court, and must be true, if the statute is to have a reasonable operation. Town of Salem v. Town of Lyme, 29 Conn. 74, 81; Hartford v. Champion, 58 Conn. 268, 275, 20 Atl. 471; Fairfield v. Easton, 73 Conn. 735, 738, 49 Atl. 200. [2] The second passage complained of is in effect but a restatement of this same principle through the application made of it to the facts of the case. In it the court told the jury that if it should find that Spencer's stay in Madison "was merely of a transient or temporary nature, and that he had no fixed or established residence or place of abode in Madison," such a finding would be decisive of the case in favor of the plaintiff. This instruction was, under the admitted circumstances attending Spencer's case, clearly correct. In the next passage objected to, the jury was told that in determining whether Spencer had resided in Madison, within the meaning of the statute, it should take into consideration all of the facts and circumstances presented in evidence, "including the manner in which it has been shown Spencer lived while in Madison, both in respect to with whom he lived, the various places in which he slept, the way in which he obtained his sustenance and his clothes, and the work that he performed, and also whether he had any personal effects, and, if so, what they were, and where he left them, and what he did with them." Here, again, no part of the statement of the court is open to dispute. It embodies observations for the guidance of the jury which were both true and pertinent, and which could not with propriety have been omitted, in view of the peculiar features the case presented. [3] The court in this connection also instructed the jury that, while the fact that a person removing from one town to another in this state is of inferior mental capacity will not prevent his acquisition of a legal settlement in the town to which he goes, provided he otherwise satisfies the provisions of the statute, it might take into considera Conn.) TOWN OF MADISON V. TOWN OF GUILFORD 1049 Spencer as a matter of evidence, together | instructions as would practically compel the with the manner in which he lived in Madi- jury to find that the circumstances of that son, and such other facts and circumstances life and manner of it were such as to conin the case, for the purpose of determining stitute residence, within the meaning of the whether or not he resided in that town in statute, or at least make it easy for it to so such manner as to gain a settlement therein. find. But the defendant made no request We are unable to discover an error here. In that the court charge in the manner indicatPlymouth v. Waterbury, 31 Conn. 515, 516, ed, or at all, as bearing upon the manner of which held that a person non compos mentis Spencer's life; and there is no assignment might gain a new settlement by commorancy, of error to the effect that the charge, for it was intimated that it might be true that the want of such instruction, was not adaptstronger evidence of a change of domicile ed to the issues, or sufficient for the guidance might be required in the case of such a per- of the jury in the case before it. Hartford son than in the case of other persons. But v. Champion, 58 Conn. 268, 276, 20 Atl. 471. the passage under criticism does not assert We have no occasion, therefore, to consider that proposition. It simply asserts that an how far the law goes, if at all, in permitting existing condition of inferior mentality is a a residence for the purposes of the pauper circumstance which, if it exists, may prop- statutes to be acquired through a kind of erly be considered in connection with the life within a town, such as Spencer's conother pertinent circumstances in determining fessedly was, or such as the jury, upon the the ultimate fact of change of domicile. A plaintiff's testimony, which went to the verge change of domicile is a question of "act" and of characterizing him as at times a vagrant, "intention." Jacobs on Domicile, § 125; Clin- might have found it to have been. ton v. Westbrook, 38 Conn. 9, 12; Yale v. West Middle School District, 59 Conn. 489, 491, 22 Atl. 295, 13 L. R. A. 161. In determining these questions, a great variety of facts and circumstances may be pertinent, and it may be necessary "to make a minute inquiry into the habits, character, pursuits, social and domestic relations and indeed the whole history of the person from his youth up." 10 Amer. & Eng. Ency. of Law, 20. Surely mental incapacity is not a fact to be ignored when the acts of the individual are being interpreted and a valuation put upon them, or when intent is to be discovered therefrom. [4] Defendant's counsel introduce their discussion of this general subject of error touching the matter of residence with the statement that the important question which it was desired to raise was "whether the court was correct in ruling that a person who was living as the finding shows that Spencer was living in Madison-that is, in outhouses and barns, doing his own cooking, boarding with his brother, living in workmen's houses of his employers, etc.-could not gain a legal settlement in Madison." We are unable to discover any ruling or instruction to that effect. Their consideration of this subject is concluded with the proposition that "the court should have stated that a person, living as Spencer admittedly was, could acquire a settlement under the statute, if he complied with the other requirements of the law." These extracts from the brief, as well as the general tenor of its discussion of this group of assignments of error, indicate that counsel's real complaint is not to be found in what the court charged, but in what it did not charge. The real criticism is that the court stopped where it did, and did not go further and give additional instructions immediately directed to a situation, such as Spencer's life in Madison presented, and such [5] It appeared in evidence that upon the settlement of the estate of Spencer's father the sum of $117.73 remained in the hands of the executor in trust for the son. Evidence was offered to show the state of this fund until the trust was finally closed, August 16, 1910, and the trustee's account filed, showing that the fund had been expended. The court, in its instructions upon the issue as to whether or not Spencer, at the several times between July 12, 1909, and January 14, 1911, when assistance was provided for him by the plaintiff, was a person entitled to receive such assistance, told the jury that, as bearing upon it, it should take into consideration the defendant's claims that Spencer had funds in the hands of the trustee, which could have been obtained for his support, if necessary, and that there was an outstanding order, given by this trustee, upon which Spencer could have obtained certain necessaries. It was added that these matters were only to be considered, so far as the plaintiff's demand under the complaint was concerned, with reference to the existence of the facts claimed at the times when the aid, for which recovery was sought, was furnished, in December, 1910, and January, 1911, and, so far as the defendant's claim under its counterclaim was concerned, as related to the times when the aid in question was provided. The defendant does not complain, and could not well complain, of this statement, as related to the subject under discussion; but it urges that the effect of the language here used was to withdraw from the consideration of the jury the matters referred to in their bearing upon the issue later discussed by the court as to whether or not the help given to Frederick Spencer and his family, in January, 1906, was to be regarded as help furnished to Charles. This is a charge, founded upon a too exacting and precise criticism, which loses whatever force it would otherwise have, by reason of the fact that the court in its instructions upon this latter issue told the jury that, if it should find that Charles did not receive any of the benefit of such assistance, or, if it should find that he personally was not legally entitled to receive support, because he had means of his own at that time that were available for his support, and such that he was not entitled to aid from the town, then it could not be said that he became at such time an actual expense to the town, and the aid furnished his brother under the circumstances would not prevent Charles from gaining a legal settlement in Madison. This was, to say the least, a strong statement in favor of the defendant, and in view of it it is difficult to imagine that the jurymen could have derived from the charge the notion that Charles' possession of available financial resources, sufficient for his reasonable maintenance, through the trust created by his father, would be a matter immaterial and not to be considered as bearing upon the question whether he was to be regarded as a recipient of assistance from the town through the medium of that which was furnished to his brother. The plaintiff offered Spencer as a witness, and inquired of him as to the town of his birth, the residence of his father in that town, his removal therefrom to Guilford with his father when 16 years of age, his resi dence in the latter town with his father until the latter's death in September, 1903, when the son was about 25 years old, and his thereafter remaining upon his late fa ther's farm until its sale in April, 1904. Upon cross-examination he was asked, with regard to the period since his father's death, if he had not gone back to Madison when ever he went away to work, and had finished. The answer being in the affirmative, counsel next inquired: "And have always made Madison your home since that time, haven't you?" Upon objection this question was excluded. Complaint is made of this Complaint is made of this ruling. [6] One's intent attending a change of place of abode from that of the then domicile, or continuance in such changed place of abode, is a recognized factor, and an important one, in the determinátion of the question of acquired domicile. Such being the case, evidence to establish it is necessarily relevant, and the testimony of the party himself is admissible. Wigmore on Evidence, § 1727, 1784; Jacobs on Domicile, 467. It "home" is the fundamental idea of domicile. But it is also true that the home and "domicile" do not always correspond. "The conception of domicile, being a creation of the law, contains within it certain legal fictions established for the purpose of giving greater precision and certainty in the application of various rules of law. of various rules of law. But these fictions are not recognized as belonging to the ordinary conception of home, and consequently a person's domicile and home may be in different places." Jacobs on Domicile, § 71. [8, 9] The question propounded to the witness, in so far as it related to the matter of Spencer's intent attending his abiding in Madison, was thus, from the standpoint of the law, one which was objectionable as calling for a legal conclusion upon a matter involving other considerations than intent. was also objectionable as being vague and uncertain in its purport, when addressed to the average witness, not skilled in the law, not to say one of inferior mental capacity. When so addressed, it was easily susceptible of a misunderstanding of its scope, and might readily elicit an answer which might be misused. Furthermore, the question was decidedly objectionable by reason of its leading character, and especially when put to a witness of limited mentality, such as Spencer was. For the purposes of the line of inquiry counsel was pursuing, he had made the witness his own, and was not entitled to the privileges of cross-examination. affirmative answer elicited from such a witness by such a question could not in reation of the testimony. The court was withson have weighed appreciably in a considerain its rights in excluding the question, and its ruling, even if erroneous, could not have harmed the defendant. [10] The court, upon the plaintiff's objection, excluded a letter, written by Spencer to the executor of his father's estate about two weeks before the sale of the farm, in which he presented a claim against the estate, and in conclusion used the following sentence, to wit: "I do not want you to save any land or the house for me at all." As bearing upon the matter of domicile, not only is evidence of intent concurring with or attending acts admissible, but evidence of an intent as to the future will also be received. Wigmore on Evidence, §§ 1727, 1784; Viles v. Waltham, 157 Mass. 542, 32 N. E. 901, 34 Am. St. Rep. 311. Any inference, however, which could be fairly drawn from this excluded letter of the witness, to the effect that the writer had formed the purpose of no longer living in Guilford, not to say giving up his domicile there, and estab [7] In the present case the question did not directly call for Spencer's testimony as to his intent, as it should have done, if it was desired to obtain from him an expression up-lishing it in Madison, or elsewhere, is so reon this point. It touched that subject only as an intent to make a place of abode that of domicile is involved in the legal concep mote and unsubstantial that no harm could have come to the defendant from the ruling. Certain rulings permitted the plaintiff to Conn.) SELECTMEN OF TOWN OF MONTVILLE v. ALPHA MILLS CO. Madison, his habitations, mode of living and means of sustenance. These were clearly correct. [11] Evidence that Spencer, going to the home of a Mrs. Keach in East Haven, in April, 1908, seeking food and work, which he obtained, and remaining there a little more than two months, said to Mrs. Keach upon his arrival that he had no place to which to go was manifestly admissible as bearing upon the question of his having a place of residence. The remaining ruling objected to was a wholly immaterial one. There is no error. curred. (85 Conn. 1) The other Judges con SELECTMEN OF TOWN OF MONTVILLE v. ALPHA MILLS CO. (Supreme Court of Errors of Connecticut. EMINENT DOMAIN (§ 238*) — CHANGE OF 1051 Donald G. Perkins, for appellant. Charle W. Comstock and Lee R. Robbins, for ap pellee. HALL, C. J. The important question pr sented by this appeal is: Was the superio court, after the report of the committee assessing $1,000 damages in favor of the defendant company, empowered by statute to order, upon the application of the plaintiffs, a reassessment of benefits and damages by a jury? The following statutory provisions are relevant to this question: Section 2051 of the General Statutes provides that: "When the owner of land adjoining a public highway or of any interest in such land, shall sustain special damage, or receive special benefits to his property, by reason of any change in the grade of such highway" the town, city, or borough in which such highway is situated "shall be liable to pay to such owner the amount of such special damage, and shall be entitled to receive from him the amount or value of such special benefits, to be ascertained in the manner provided for ascertaining damages and benefits occasioned by laying out or altering highways." Under Gen. St. 1902, § 2067, authorizing persons interested in altering highways to remonstrate against the report of the committee assessing benefits and damages, and empowering the court to order a jury and "grant relief Section 2054 provides that: "If the seto the person or persons making such appli- lectmen of any town, and any person intercation," when construed in connection with sec-ested in the layout, opening, grading or altion 2070, providing that, if the report of the jury shall not increase the damages allowed or diminish the assessment of benefits, the court shall order the applicant for the jury to pay the costs of the application, etc., the court, in proceedings to assess damages and benefits for the change of the grade of a highway, may not order a jury to make a reassessment of damages and benefits on the application of the town by its selectmen; the selectmen not being referred to by the words "person or persons," in the quoted clause. [Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 238.* For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol. 8, p. 7752.] Appeal from. Superior Court, New London County; Ralph Wheeler, Judge. tering any highway or private way therein, cannot agree as to the damages sustained by or the benefits accruing to such person thereby, the selectmen shall apply to any judge of the superior court, who, having caused reasonable notice to be given to the parties interested, shall appoint a committee of three disinterested electors, to estimate and assess to such person injured or benefited the damages sustained by him or the benefits accruing to him by such layout, opening or alteration of such way," and such committee, after notice to the parties, "shall under oath make such estimate and assessment, and forthwith report their doings to the şuperior court. Application by the Selectmen of the Town of Montville for the appointment of a com- Section 2055 provides that "any person inmittee to estimate and assess benefits and terested in such estimate or assessment may damages occasioned by changing the grade remonstrate against the acceptance of said of a highway. The court overruled plain-report for any irregularity, or improper contiff's remonstrance to the report of the committee, reporting no benefits to the defendant, Alpha Mills Company, and damages at $1,000, and granted, over defendant's objection, a motion for a jury of six to reestimate the benefit and damages. From a judgment on the report of the jury, reporting that the benefits and damages are equal, and from the denial of the motion of defendant for judgment on the report of the committee, it appeals. Reversed and remanded, to be proceeded with according to law. duct," and that "thereupon the same proceedings shall be had by said court, in accepting or rejecting said report and in ordering a jury to reassess the damages and benefits, or either, as provided in the case of applications brought to said court against towns for the layout or alteration of high ways. Sections 2065 and 2066 provide that: "When the selectmen of any town shall refuse to lay out any necessary highway, or to make any necessary alteration in any For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |