By St. 1793, c. 34, § 2, cl. 4, on which this case . depends, “ any person of twenty one years of age, being a citizen of this or any of the United States, having an estate of inheritance or freehold in the town where he dwells and has his home, of the clear yearly income of three pounds,” (ten dollars) “ and taldng the rents and profits thereof three years successively, whether he lives thereupon or not, shall thereby gain a settlement therein.” The settled construction of this provision is, that “ clear yearly income ” is income free from all charges *59on the estate ; and therefore that it is not clear, if the estate is mortgaged to secure a sum the interest of which, being deducted from the income, reduces it below ten dollars. Groton v. Boxborough, 6 Mass. 50. Conway v. Deerfield, 11 Mass. 327. Freeport v. Sidney, 21 Maine, 305. . No such deduction is to be made in the present case, in ascertaining the yeany income of Isaac Rider’s estate. Only a part of it was mortgaged, and the jury have found that the clear yearly income of the residue was ten dollars. This finding of the jury was under instructions that it was not necessary that Rider should have actually taken and received ten dollars yearly, clear of all charges, in order to give him a settlement. To these instructions the plaintiffs except ; but we are of opinion that they were right. The terms of the statute require that the clear yearly income shall be ten dollars, and that the owner shall take the rents and profits ; but not rents and profits to the amount of ten dollars. The words “rents and profits ” are superfluous, if they mean nothing different, in any case, from clear income. And it has always been held, so far as we have known or can learn, that the words “ yearly income ” mean, not the sum actually received yearly by the owner of the estate, as rents and profits, but the yearly value thereof, as a rentable estate. In the trials of many cases which arose on this clause of the statute, while it was in force, and which passed under our personal observation, the inquiry uniformly was of this import: What sum would have been a faff yearly rent for the estate, without taxes ? If the estate were a building occupied by the owner, the clear yearly income and the yearly rents and profits would be the same sum, viz: the rentable value. But it would be otherwise if the estate were a small piece of land occupied by the owner. Its rentable value might be twenty dollars a year, and yet the clear yearly rents and profits, actually received, might not be one.
If the court had originally adopted the construction of the statute which the plaintiffs now contend should be given to it, the consequence must have been, that when the amount of the clear yearly income of a small piece of land occupied by the owner was in question, in a pauper cause, it would have been *60competent, if not necessary, to introduce evidence concerning the owner’s health, economy, thrift, industry and efficiency, or the want of them, and of the state of the season, whether fruitful or otherwise, for each of three successive years, in order to satisfy a jury whether or not he actually obtained ten dollars in each year, as rents and profits of his estate, clear of all charges; thus making the provision of the statute practically worthless. Even on the better construction that was given to it, the provision was found to have no practical value, and was therefore repealed in February 1822. St. 1821, c. 94. In cases where the rentable value was about ten dollars, witnesses on one side always estimated it a little higher, and on the other a little-lower than that sum ; and the result almost invariably was, that the verdict was against the party that had the burden of proof.
In originally giving to the words “ yearly income,” in clause 4, the meaning of rentable value, the court could hardly have failed to advert to the meaning of “ income ” in the fifth clause, which provides that a person having an estate, the income of which shall be set at three pounds twelve shillings, in the valuation of estates made by assessors, and being assessed for the same five successive years, shall thereby gain a settlement. Here it is manifest that income cannot mean the sum which the owner actually derives from his estate, but means the amount of income fairly derivable therefrom—its taxable value. It would not be easy, probably, to find a satisfactory reason for giving to the word “income” the meaning of actual receipt, in one clause rather than in the other.
By the instructions given to the jury, and by the verdict, the question, whether the judge erred in his first ruling concerning the effect of the mortgage from Rider, became immaterial.
Exceptions overruled.