Mulrain v. Board of Selectmen of Leicester
Mulrain v. Board of Selectmen of Leicester
Opinion of the Court
In attempting to comply, Mulrain listed as his residence a house which his brother owned in Leicester. Mulrain voted in Leicester and ran unsuccessfully for selectman of that town. He conceded, however, that he spent most of his nonworking time in North Brookfield, where his wife and children continued to live, where he owned a house, and where his children went to school. A judge of the Superior Court concluded that Mulrain had failed to establish that he was a resident of Leicester and affirmed his discharge by the selectmen. Judgment entered accordingly and Mulrain appealed. We affirm.
1. Definition of “resident" and “reside." The by-law provides that certain town employees “shall be residents of the Town and shall so reside.” Like most other words, “reside” and “resident” are susceptible of varying meanings depending upon the context in and the purpose for which they are used. Marlborough v. Lynn, 275 Mass. 394, 396-397 (1931). Shepard v. Finance Associates of Auburn, 366 Mass. 182, 190 (1974). As used in Massachusetts statutes, residence has sometimes been construed as “the practical equivalent of domicil, implying physical presence coupled with an intention to remain.” Ibid, and cases cited. See Commonwealth v. Bogigian, 265 Mass. 531, 537-538 (1929); Dane v. Registrars of Voters of Concord, 374 Mass. 152, 161 (1978). In other cases, particularly where the statute being construed has used the expression “actual residence” or has distinguished residence from the legal concept of “inhabitant,” residency emerges as essentially a matter of “personal presence,” with or without any implication of civic privileges or duties. See Martin v. Gardner, 240 Mass. 350, 353-354 (1922); Marlborough v. Lynn, 275 Mass. at 396-397. The State statute which corresponds most closely to the by-law before us
The Leicester by-law provides that employees must “be residents” of the town and must “so reside.” To avoid rendering either usage superfluous, see Commonwealth v. Gove, 366 Mass. 351, 354 (1974); Devaney v. Watertown, 13 Mass. App. Ct. 927, 928 (1982), we construe the by-law to require both the legal accoutrements of domicil and the maintenance of a genuine — as opposed to nominal or constructive — personal presence in the community. See Marlborough v. Lynn, 275 Mass. at 397. The trial judge was warranted in distinguishing what he described as Mulrain’s “paper moves” to Leicester from what he found to be the actual center of Mulrain’s domestic and social life, in and around the home of his wife and children in North Brookfield. Cf. Restatement (Second) Conflict of Laws § 11 (1971).
2. Sufficiency of the findings. There is support in the record for the following subsidiary findings, which led to the judge’s ultimate finding that Mulrain had not established residency in Leicester during the relevant period, July 22 through December 31, 1982. Mulrain’s wife and three children lived in North Brookfield, in a house which he owned with his wife. The two children who were of school age attended the North Brookfield public schools. His car was principally garaged in North Brookfield. He went to North Brookfield for banking, recreation, and to attend church.
3. Exclusion of certain evidence. Mulrain attempted to present evidence about his family’s difficult financial condition, and about arrangements he and his wife had made with the mortgagee of their North Brookfield house to reduce monthly payments. The offer of proof suggested that this evidence was relevant to show that the family had stayed in North Brookfield not because of Mulrain’s intent to keep his residence there but because of financial necessity. He could not find housing for five in Leicester for the amount of the reduced mortgage payments. It was within the judge’s discretion to rule that such testimony was irrevelant.
On the view we have taken of the case, it is not necessary to decide other issues raised on the appeal.
Judgment affirmed.
Mulrain testified that he spent Monday evenings, Wednesday evenings, and weekends in North Brookfield, although the judge made no specific findings in that regard.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.