« ForrigeFortsett »
and p. 35, Rule 2. Demante, I., p. 197; Duranton, I., no. 351 ; Bug sur Pothier, I., p. 3; Valette sur Prudhon, I., p. 236, cited Mourlon, I., p. 188. The definition of Lord WESTBURY, Bell 0. Kennedy, House of Lords, 6 Session Cases, 3 series, p. 78; “The relation which the law creates between an individual and a particular locality," if not open to the objection of Ortolan, as above, that it is too vague to be of use, is only a statement of domicil; i. e., the status arising from it. Although it is true that “domicil is in law what residence is in fact,” (Ortolan, p. 403,) yet “dom. icil is the legal conception of residence ;" (Westlake, & 30 ;) and this legal conception is predetermined in particular cases, not in view of all the facts of these cases, but of some only, which are taken as controlling, because it is considered that they are, in the majority of instances, most likely to lead to a conclusion in harmony with the fact. But when such special facts are taken as controlling for any other reason than this likeli. hood, a purely arbitrary extension is given to the term domicil, which ought to be rejected, and the alternative taken of placing these cases in some other category. Thus the minor's domicil, after his parents' death, follows that of the guardian. This rule is founded upon its correspondence with the fact in the great majority of instances. Should it be considered as also established that the succession to such minor's property is
should not be rejected, but this proposition should be inserted among the rules of law relating to succession. See Westlake, Private Int. Law, $ 36. 2 Political Code, Reported for Nero York, $ 6. Kinds of domicil. 281. Domicil is either : 1. Original; or, 2. Secondary Original and secondary.
282. The original domicil is that of the person at the time of his birth. All others' are secondary.
"At any other time, whether at the place of the original domicil, or elsewhere.
Derivative and voluntary.
283. A secondary domicil is derivative, when dependent upon the domicil of another person. Otherwise it is voluntary.
Every person has one domicil.
284. No person can be without a domicil,' or have at one time more than one domicil.” But one may have a residence, for a particular purpose, at a place other than his domicil.'
'Political Code, Reported for New York, $ 7; Boileux, I., p. 214; WestLake's Private Intern. Law, pp. 33–38 ; Story, $ 47.
* Political Code, Reported for New York, 87; Boileux, I., pp. 214, 215; Mourlon, I., p. 198; Westlake, SS 316, 325; McLaren's Law of Wills and Succession, 87, p. 4 ; Brent o. Armfield, 4 Cranch's U. 8. Circuit Ct. Rep.,
The case of a person whose birth-place is unknown, buying two country houses in different countries under the same circumstances, and dying in one of them, (suggested in 4 Phill. Intern. Law, $ 59,) is provided for by
3 Chaine o. Wilson, 1 Bosworth's (Nero York) Rep., 673; Frost o. Brisbin, 19 Wendell'8 (New York) Rep., 11; Douglas 0. Mayor of New York, 2 Duer's (New York) Rep., 110; 4 Phillimore's Intern. Law, $ 55.
Original domicil of legitimates.
285. The original domicil of a child which is legitimate, or has been acknowledged by its father before its birth, is determined by the domicil of its father at the time of its birth; or, if its father is then dead, or has no voluntary domicil, by the domicil of its mother.
See Ludlam o. Ludlam, 26 New York Rep., 356, 371; Westlake's Private Intern. Law, $ 35; Brown o. Lynch, 2 Bradford's Surrogate (New York) Rep., 214.
Original domicil of legitimates.
286. The original domicil of an illegitimate child is determined by the domicil of its mother at the time of its birth, unless previously acknowledged by its father.
Child of unknown parentage.
287. The original domicil of a child whose parents are unknown, is the place of its birth, or where it is first found.
Continuance of domicil.
288. The existing domicil' continues until another is gained,' or until the death of the person, whichever first occurs, except as provided in article 301.'
1 This is true not only as to the original domicil, but also in reference to the derivative domicil ; e. g., of the wife ; (Pennsylvania o. Ravenel, 21 Howard's U. S. Sup. Ct. Rep., 103; Westlake, $ 42 :) or minor; Doe o. Lith. erberry, 4 McLean's Rep., 454; Goods of Patten, 6 Jurist, N. 8., 151; BoilOUX, I., p. 121.
? A domicil cannot be lost until another is gained. Somerville v. Som. erville, 5 Vesey's Ch. Rep., 787; Graham 0. Public Adm'r, 4 Bradford's Surrogate (New York) Rep., 127.
3 The exception refers to the abandonment of a secondary domicil, with intent to acquire the original domicil.
Wife's secondary domicil.
289, The domicil of the wife follows the domicil of her husband, except:
1. When she is living apart from him,' separated by the decree of a competent tribunal,' or by his consent, such separation being allowed by the domicil of each ; *
2. When he has committed an offense which, by the law of her actual residence, entitles her to a divorce, which she claims; o
3. When she or some other person is the committee of his person;
4. When some person other than her husband is the committee of her person.*
Bremer v. Freeman, 1 Deane's Rep., 212 ; Political Code Reported for New York, $ 7.
1 Pothier, Contr. de Marriage, & 524 ; 4 Phillimore, Intern. Lau, SS 71 -73.
9 Vescher 0. Vescher, 12 Barbour's (Nero York) Rep., 640; Barber v. Barber, 21 Horoard'U. 8. Supreme Ct. Rep., 582 ; Williams v. Dormer, 2 Rob., 505 ; 2 Bishop on Marriage and Divorce, (2d ed.,) & 125 ; (1st ed.,)
728; Pothier, ubi supra, § 522; Allison v. Catley, Session Cases, 2nd series, I., 1025, 15th June, 1829; McLaren's Law of Wills and Succession, p. 15, $ 29; Boileux, I., pp. 222, 223, note 1; Westlake, Private Int. Law, 42 ; contra, Merlin, Répertoire de Jurisprudence, Domicile, § 5, no. 1 ; Dalloz, Domicil, no. 9; Zacharie, p. 280, § 140. Doubted by Lord KINGSDOWN, in Dolphin o. Robins, 7 House of Lords Cases, 420 ; 3 Macqueen's Rep., 581; Re Daly's Settlement, 22 Jurist, 525. It has even been held that a decree of separation cannot impose any particular domicil upon her. Die jon, 28 Ap., 1807; 6 Dalloz, t. 6, p. 379.
3 This is indispensable. Mourion, I., p. 194, (4th ed.); Bishop, (2nd ed.,) 1, 634; 2, § 129; 1 McLaren's Law of Wills and Succession, p. 15, $ 29; Dolphin 0. Robins, 3 Macqueen's Rep., 563-584.
* Westlake, $ 363. See Connelly o. Connelly, 7 Moore's Privy Council Rep., 438, 471.
5 Bishop, as above, 2, $ 128, (2nd ed.;) $ 730, (1st ed.;) Westlake, &$ 42, 364.
Whether the exception extends as far as to allow the wife to establish a domicil in a different judicial locality from that in which her husband's
§ 365 ; 2 Bishop, (2nd ed.,) S 128, (1st ed.,) $ 730.
Most of the State courts of the United States hold that it does. Bishop, 2, § 128; Jenness v. Jenness, 24 Indiana Rep., 358, 359; Reel 0. Elder, 62 Pennsylvania Rep., 315; and the Supreme Court of the United States has followed their decisions in a late case, Cheever v. Wilson, 9 Wallace's U. 8. Sup. Ct. Rep., 108.
6 Bishop, 2, $ 129, (2d ed.) This restriction is put on the ground that the offense cannot be inquired into collaterally. Dolphin 0. Robins, 3 Macqueen's Rep., 578, 579 ; 7 House of Lords Cases, 418; Bishop, ubi 8upra.
If the restriction is admitted, it should not be extended to a case where the wife has removed, acquired a new home, commenced her proceedings for a divorce, and died before decree.
· Armstrong v. Armstrong, 7 Peazey's (Vermont) Rep., 350.
Child's secondary domicil.
290. The domicil' of the father, and after his death, that of the mother while she remains unmarried, is the secondary domicil of the unemancipated' minor child, if legitimate, or acknowledged by the father, except,
1. While another person than the parent is the guardian of the child ; :
2. While the parent has a committee of his person;
3. While the child has a voluntary domicil in a different place, pursuant to the provisions of article 303.
Mere residence-e.g., imposed by banishment-is not such a domicil. Hardy o. De Leon, 5 Texas Rep., 237. Nor is the short forensic domicil,
January, 1840, Session Cases, 2nd series, vol. 2, p. 307; Brodie o. Brodie, 30 L. J., (Prob. & Matr.,) 185.
The American cases, except in Louisiana, concur in holding that the mother loses all right to change her child's domicil on re-marriage, an i that the step-father neither acquires it, nor imposes his domicil on the child, although the child actually resides with them. Allen o. Thompson 11 Humphrey's Rep., 538; Mears v. Sinclair, 1 West Virginia Rep., 19.1. (Where the mother was also guardian.) Brown v. Lynch, 2 Bradford's (New York) Rep., 218.
To the same effect, McLaren's Law of Wills and Succession, $ 13; Pothier, Cout. d'Orleans, Introd., 17.
The rule in Louisiana is different. Succession of Lewis, 10 Louisiana Annual Rep., 790.
It seems not to have been decided whether the death of the step-father would revive the mother's right in this respect.
• Code Napoleon, Liv. I., Tit. III., Art. 108; Boileux, I., p. 221 ; Mourlon, I., p. 195; Political Code, Reported for New York, $ 7.
3 Mourlon, I., p. 195.
* This exception is necessary, if the provisions of the article referred to are adopted, as, if the term " minor child” is not restricted to children under the age of pupillarity, such child might have actually changed its domicil.
Ward's secondary domicil.
291. The domicil of the guardian, or if there are several jointly appointed, that of the one first named in the instrument of appointment, is the secondary domicil of his ward.
The case of an infant under two guardians having different domicils, does not seem to have yet arisen, in such a form as to require a decision. See Robertson on Succession, p. 201, note ; Potinger o. Wighiman, 8 Mericale's Rep., 67.
Domicil of insane persons, &c.
292. The domicil of a person of unsound mind, or of one duly declared incompetent, is determined by that of the committee of his person; or if there are several jointly appointed, of the one first named in the instrument of appointment.
Phillimore's Law of Domicil, p. 55; Boileux, I., p. 220 ; Demanté, I., p. 206 ; Mourlon, I., p. 195. See Sbarpe o. Crispin, 38 Law Journal, Probate, 17 ; 1 Law Rep., Prob. & Dio., 611.
To the contrary, Westlake Private Intern. Lar, $ 52.
CHANGE OF DOMICIL.
ARTICLE 293. Right to change domicil.
294. Change of an adult's derivative domicil. 295. Guardian may change ward's domicil. 296. Parent's consent to change necessary. 297. Testamentary change of derivative domicil. 298. Change of domicil, how made. 299. Intention to change. 300. Presumption of no intention to change. 301. Reverting to original domicil. 302. Official or compulsory change of residence. 803. What law determines change of domicil. 304. Nationality not affected.