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Lyndon v. Danville, Apt.

nitely, and if this pauper took a derivative settlement in Danville from his father, I see not why the alien born children of this pauper might not claim through him a settlement in Danville also.

It appears to me that it is going far enough to hold that a child born in another sister state of a father having at the time his domicil in such state, shall take the settlement of his father in this state, if he have one. This may arise from the community of privileges between citizens of the several states, but if the father had been a foreigner, the place of birth of the child would have been its place of settlement.

In the case now before us the pauper was born an alien to all intents and purposes. He could claim no personal rights or privileges at the hands of the state or the general government, and he owed to neither government any duties growing out of an allegiance. The father removed from this state about the year 1824, and lived in Canada up to the time of his death in 1844, having in that government a fixed residence, and without any intention of returning to the States, and during that time the pauper in question was born. I do not apprehend it is necessary to decide what the effect of this removal of the father from this state to Canada, under the facts which attend this case, would have upon his own settlement. It might if it was necessary, to say the least, be claimed with great plausibility that a citizen might in good faith adjure his country, and that the assent of his government would be presumed, if there was no statute regulation upon the subject, and that he should be deemed thereby to be denationalized.

Our naturalization laws all seem to be founded upon that basis, and it might well be inquired whether this is not to be treated, at the present day, as the practical and fundamental American doctrine on this subject. I should apprehend that if the father was to be treated as denationalized, it would follow that there was on his part a perpetual abandonment of his previous settlement in the town of Danville, and of all his rights and privileges as an American citizen, and that it could not be maintained that upon his subsequent return to this state, his settlement in Danville would be revived. But we are not called upon to consider what would have been the effect, if any, of the father's return to this state, Doolittle et als. v. Holton.

upon his own settlement, or upon that of the pauper. It is a com mon principle that a foreign parent cannot communicate a settlement to a child, and I am, at all events, satisfied to treat the father in this case as quasi a foreign parent, and that he did not and could not communicate a settlement in this state to this child born an alien.

This, as it seems to me, accords with a sound construction of the statute. When the statute says the child shall have the settlement of the father until he gains a settlement of his own, it would seem to me not to be the intention to include alien born children, who could not gain a settlement by a residence in a town, and I have some doubt whether aliens should be considered as included in the general terms “every person,” and “ any person,” in those sections of the statute which provides for the gaining of a settlement by other means.

Although the views of all the members of the court are not the same in relation to this case, yet I think the defendant town is entitled to a judgment, that the pauper was unduly removed.

JOHN DOOLITTLE, LUCIUS DOOLITTLE, JOHN MARSH AND

Fanny MARSI, his wife, v. Bela Holton.

License to administrator to séll real estate.

Presumptions.

Circumstances under and from which the granting, by the probate court, of an

order or license to an administrator to sell real estate, and the regularity of the proceedings of the probate court, and of the administrator, in reference thereto, may be presumed, in the absence of any original or record evidence respecting it.

EJECTMENT for lands in Lyndon which were set out to the widow of Jesse Doolittle, as her dower in his estate, on the 11th of October, 1809. It appeared that the widow, Eunice Doolittle, died in 1848, and the plaintiffs claimed the reversion as heirs of the said Jesse Doolittle. The defendant claimed under a deed from

Doolittle et als. v. Holton.

Nathaniel Jenks, administrator de bonis non upon the estate of the said Jesse, to Oliver Doolittle, dated April 30th, 1810, which purported to convey, with other lands, the reversion of the widow's dower. At the same date the widow, it appeared, conveyed her interest in the premises to the said Oliver Doolittle, from whom there was a regular chain of conveyances to the defendant. The rights of the parties depended upon the validity of the administrator's deed, above referred to, which the plaintiffs claimed was invalid, for want of a previous license. The cause was tried by jury, in the county court, at the June Term. 1854,-Peck, J., presiding

It appeared that Jesse Doolittle died intestate in 1807, and that administration upon his estate was granted, during that year, to Riverius Burt, who, on the 19th of February, 1808, was licensed to to sell the real estate of the intestate, but on the 11th of October, 1809, he resigned, and was discharged as administrator, without having sold the real estate; and on the same day Nathaniel Jenks was appointed administrator de bonis non, who afterwards, on the 30th of April, 1810, sold and deeded the two-thirds of the home farm, which was not set off to the widow, together with the reversion of the other third, (being the premises sued for,) to Oliver Doolittle, and on the 20th of the following November, made a return of said sale to the probate court, which was received by that court and ordered to be recorded. From the inventory of the estate which was returned to the probate court, and the report of the commissioners, it appeared that the claims allowed exceeded the value of the personal property appraised; and the testimony on the part of the defendant showed that Oliver Doolittle and the successive grantees under him, had been in the continued occupation of all the premises described in his deed, since its date, claiming title under it; and that at the period of time embraced in the settlement of said estate and before, and also for some time after, the proceedings in the probate court where this estate was settled, were kept very loose,--and that in many cases of sales of real estate during that period, which were, in fact, made under proper orders, the orders of sale were not recorded, nor were any proper entries made by said court in relation to them.

The plaintiffs insisted, and requested the court so to charge, that

Doolittle et als. v. Holton.

no title to the premises was conveyed by the deed of Nathaniel Jenks, as administrator, because there was no license to said Jenks to sell, and he could not legally act under the license of the first administrator, and no proof of any necessity for the sale, and no proof of any bond given by Jenks to account for the proceeds of such a sale. The court declined so to charge, but told the jury that it was necessary, in order to render the said administrator's deed valid and operative to convey any title, that they should find, from the evidence, that an order to sell the real estate in question, including the widow's dower, was, in fact, regularly made by the probate court, after adjudging it necessary, previous to the sale and date of the deed, and that the sale was made and deed executed by the administrator, in pursuance of such order, and in conformity with it; and also find that such order of sale was granted to Nathaniel Jenks, after his appointment as administrator,—and that he had no power to sell under an order or license granted to the former administrator. The court alluded to, and commented upon the evidence in the case relative to the question whether such facts existed as would authorize the probate court to grant license to sell the real estate in question, and, upon the question whether, in fact, the probate court regularly made such order, or granted such license,_and upon the question whether the administrator regularly proceeded under it; and told the jury that these were questions of fact, for them to find from the evidence in the case ;--and that it was for them to say whether the evidence was sufficient or not; and, in commenting upon the evidence, the court told the jury that, inasmuch as the plaintiffs had no right of action till 1848, to recover the premises in question, on account of the widow's life estate, the mere lapse of time, even coupled with the fact that the defendant, and those under whom he claimed, under the administrator's deed, had been in possession for many years, would raise no presumption against the plaintiffs, nor furnish any evidence of the facts necessary to give validity to the administrator's deed, if no other lands, except such as were covered by the widow's dower, had been included in the sale and administrator's deed; but that, as it appeared that other lands of the estate, not covered by the widow's dower, were included in the administrator's deed, and that such other lands had been held and possessed under

Doolittle et als. v. Holton.

the same deed from the administrator, adversely to the heirs, and without any claim on the part of the heirs, for so great a length of time, it was evidence tending to raise a presumption in favor of the validity and regularity of the proceedings in the probate court, and the sale by the administrator ;—and that this evidence might be weighed by the jury with the other evidence in the case, although no order or license of sale by the probate court, to Jenks, appeared in the records or proceedings of toat court; and the court also told the jury that it was claimed by the plaintiffs' counsel that, as there was an order of sale to Burt, the former administrator, and no ororder to be found to Jenks, the presumption was, that Jenks acted under such former order, and that this furnished some ground for such presumption,—and that, if they found that this presumption was warranted, when taken in connection with the whole evidence on the point, their verdict should be for the plaintiffs ; that on the one hand, it was not necessary for the defendant to prove the facts necessary to give validity to the deed of the administrator, by positive and direct testimony, after such lapse of time;—but, on the other hand, it was not enough for the defendant to prove such facts as barely rendered it possible that such facts existed, and such proceedings were had, as would render the administrator's deed valid; but he must go further, and prove such facts and circumstances as were so far inconsistent with the idea that the sale was irregular, and void, as to warrant the jury in finding it proved that such facts existed, and that such proceedings were actually had in the probate court, as were necessary to render the administrator's sale regular and valid.

To the refusal to charge as requested, and to the charge as given, the plaintiff excepted. Verdict for the defendant.

G. C. Cahoon for the plaintiffs.

– for the defendant.

The opinion of the court was delivered, at the circuit session in September, by

REDFIELD, CH. J. This case has been a good deal examined by the court at the former hearings. The only difficulty which

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