CHAPTER VII.

CHANGE OF NATIONAL AND QUASI-NATIONAL DOMICIL.

1. Acquisition of Domicil of Choice.

§ 121. We now come to consider the subject of a change of domicil, which may occur in either of two ways: (a) by the acquisition of a domicil of choice, or (b), after a domicil of choice has been abandoned, by the reverter of the domicil of origin. It is proposed to consider the former branch of the subject in this chapter, and to confine the discussion for the present to cases of national and quasi-national domicil, leaving the question of a change of municipal domicil for subsequent discussion.

§ 122. Domicil of Origin more difficult to change than Acquired Domicil.-Two points must be kept in view throughout the discussion: (1) The acquisition of a domicil of choice may be either (a) by the substitution of an acquired domicil for domicil of origin, or (b) by the substitution of one acquired domicil for another; and for the reasons given in the last chapter, domicil of origin is more difficult to change than acquired domicil.

A change of domicil is always presumed against; but this

1 This discussion has, of course, regard only to change of domicil of independent persons. The manner in which the domicil of a dependent person (married woman, infant, or, in some cases, non-compos) is altered, will be considered hereafter; and it will be found that whenever a change of the national or quasi-national domicil of a dependent person occurs, such change results from either (a) the acquisition of a domicil of choice by, or (b) the reverter of the domicil of origin of, an independent

person; so that, in inquiring concerning the domicil of a dependent person, we are always driven back to an inquiry concerning the domicil of an independent person.

1 Cases cited, supra, § 115, and infra, § 151, and Mitchell v. United States, 21 Wall. 350; Desmare v. United States, 93 U. S. 605; White v. Brown, 1 Wall. Jr. C. Ct. 217; Burnham v. Rangeley, 1 Wood. & M. 7; Kilburn v. Bennett, 3 Met. 199; Chicopee v. Whately, 6 Allen, 508; Mooar v.

presumption is particularly strong when the change in question is in derogation of the domicil of origin, especially if the domicil of origin corresponds with the place of birth and early education.2

§ 123. National Domicil more difficult to change than quasiNational.(2) The change may be (a) from one sovereign State to another, or (b) from one province or State to another within the same sovereignty. The analogy of perpetual allegiance, together with some reasons drawn from the wellknown feelings of mankind, have led courts to insist upon stronger facts and clearer evidence to establish a change to a foreign country than will be required to establish a change within a sovereign State.1 Says Kindersley, V. C., in Lord v. Colvin "Another principle is that which is referred to by Lord Cranworth in Whicker v. Hume in the House of Lords, namely, that it requires stronger and more conclusive evidence to justify the court in deciding that a man has acquired a new domicil in a foreign country, than would suffice to warrant the conclusion that he has acquired a new domicil in a country where he is not a foreigner. For instance, the court would more readily decide that a Scotchman had acquired a domicil in England than that he had acquired a domicil in France." Lord Cranworth's language is this: "I think that all courts ought to look with the greatest suspicion and jealousy at any of these questions as to change of domicil into a foreign country. You may much more easily suppose that a person having originally been living in Scotland, a Scotchman, means permanently to quit it and come to England, or vice versa, than that he is quitting the United Kingdom in order to make his permanent home where he must forever be a foreigner, and in a country where there must always be those difficulties which arise from the complication that exists and the

Harvey, 128 Mass. 219; Nixon v. Palmer, 10 Barb. 175; Pilson v. Bushong, 29 Gratt. 229; Lindsay v. Murphy, 76 Va. 428; Tanner v. King, 11 La. R. 175; Nugent v. Bates, 51 Iowa, 77; Keith v. Stetter, 25 Kans. 100. See also Stoughton & Peck v. Hill, 3 Woods, 404.

2 Supra, § 115.

124 (per Lord Cranworth); AttorneyGeneral v. Pottinger, 6 Hurl. & Nor. 733 (per Pollock, C. B.); Hodgson v. De Beauchesne, 12 Moore P. C. C. 285 (per Lord Cranworth during the argument); Lord v. Colvin, 4 Drew. 366, 422. See same case, sub nom. Moorhouse v. Lord, 10 H. L. Cas. 272; Hegeman v.

1 Whicker v. Hume, 7 H. L. Cas. Fox, 31 Barb. 475.

conflict between the duties that you owe to one country and the duties which you owe to the other. Circumstances may be so strong as to lead irresistibly to the inference that a person does mean quatenus in illo exuere patriam; but that is a presumption at which we ought not easily to arrive, more especially in modern times, when the facilities for travelling and the various inducements for pleasure, for curiosity, or for economy so frequently lead persons to make temporary residences out of their native country."

§ 124. A Change of Domicil a Serious Matter, and presumed against. But in any case a change of domicil, whether domicil of origin or of choice, national or quasi-national, is a very serious matter, involving as it may, and as it frequently does, an entire change of personal law. The validity and construction of a man's testamentary acts and the disposition of his personal property in case of intestacy; his legitimacy in some cases and, if illegitimate, his capacity for legitimation; the rights and (in the view of some jurists) the capacities of married women; jurisdiction to grant divorces, and, according to the more recent English view, capacity to contract marriage,— all these and very many other legal questions depend for their solution upon the principle of domicil;1 so that upon the determination of the question of domicil it may depend oftentimes whether a person is legitimate or illegitimate, married or single, testate or intestate, capable or incapable of doing a variety of acts and possessing a variety of rights. To the passage quoted in the last section Kindersley, V. C., adds: “In truth, to hold that a man has acquired a domicil in a foreign country is a most serious matter, involving as it does the consequence that the validity or invalidity of his testamentary acts and the disposition of his personal property are to be governed by the laws of that foreign country. No doubt the evidence may be so strong and conclusive as to render such a decision unavoidable. But the consequences of such a decision may be, and generally are, so serious and so injurious to the welfare of families that it can only be justified by the clearest and most conclusive evidence."2 And the remarks of his Honor might

1 See supra, ch. 2.

Cresswell Cresswell, in Crookenden v.

2 Also quoted and approved by Sir Fuller, 1 Swab. & Tr. 441.

be extended, although with somewhat diminished force, to smoe cases of quasi-national domicil, where the change sought to be established is between States or provinces under the same general government, but having different systems of private law, as for example between Scotland and England or between Pennsylvania and Louisiana. Thus Lord Curriehill, in Donaldson v. McClure, referring particularly to a change of domicil between England and Scotland, says: "The animus to abandon one domicil for another imports an intention not only to relinquish those peculiar rights, privileges, and immunities which the law and constitution of the domicil confers, in the domestic relations, in purchases and sales, and other business transactions, in political or municipal status, and in the daily affairs of common life, but also the laws by which succession to property is regulated after death. The abandonment or change of a domicil is therefore a proceeding of a very serious nature, and an intention to make such a change requires to be proved by very satisfactory evidence."

§ 125. Change of Domicil a Question of Act and Intention. All jurists agree that a change of domicil, of whatever grade, is a question of "act," or "fact," and intention, and cannot be accomplished without the concurrence of both.1 Pothier

8 20 D. (Sc. Sess. Cas. 2d ser. 1857) neval, 1 Curteis, 856; Collier v. Rivaz, 307, 321. 2 id. 855; Craigie v. Lewin, 3 id. 435; Laneuville v. Anderson, 2 Spinks, 41; Burton v. Fisher, 1 Milw. (Ir. Eccl.) 183; Comm'rs of Inland Rev. v. Gordon, 12 D. (Sc. Sess. Cas. 2d ser. 1850) 657; Ennis v. Smith, 14 How. 400; Mitchell v. United States, 21 Wall. 350; The Ann Green, 1 Gall. 274; Catlin v. Gladding, 4 Mason, 308; Burnham v. Rangeley, 1 Wood. & M. 7; White v. Brown, 1 Wall. Jr. C. Ct. 217; United States v. Penelope, 2 Pet. Adm. 438; Doyle v. Clark, 1 Flipp. 536; Wayne v Greene, 21 Me. 357; Brewer v. Linnæus, 36 id. 428; Warren v. Thomaston, 43 id. 406; Parsons v. Bangor, 61 id. 457; Stockton v. Staples, 66 id. 197; Leach v. Pillsbury, 15 N. H. 137; Harvard College v. Gore, 5 Pick. 370; Lyman v. Fiske, 17 id. 231;

1 Munro v. Munro, 7 Cl. & F. 842; Aikman v. Aikman, 3 Macq. H. L. Cas. 854; Whicker v. Hume, 7 H. L. Cas. 124; Moorhouse v. Lord, 10 id. 272; Bell v. Kennedy, L. R. 1 Sch. App. 307; Udny v. Udny, id. 441; Hodgson v. De Beauchesne, 12 Moore P. C. C. 285; Attorney-General v. Rowe, 1 Hurl. & Nor. 31; In re Capdevielle, 2 Hurl. & Colt. 985; Hoskins v. Mathews, 8 De G. M. & G. 13; Munroe v. Douglas, 5 Mad. 379; Jopp v. Wood, 34 Beav. 88; s. c. on appeal, 4 De G. S. & J. 616; Cockerell v. Cockerell, 2 Jur. (N. s.) 727; Robins & Paxton v. Dolphin, 4 Jur. (N. s.) 267; Lyall v. Paton, 25 L. J. Ch. (N. s.) 746; Forbes v. Forbes, Kay, 341; Lord v. Colvin, 4 Drew. 366; Brown v. Smith, 15 Beav. 444; De Bonneval v. De Bon

says: "Il faut pour cette translation le concours de la volonté et du fait;" and Denizart puts it thus: "Deux choses sont nécessaires pour constituer le domicile: 1° l'habitation réele; et 2° la volonté de le fixer au lieu que l'on habite." "Length of residence will not alone effect the change; intention alone will not do it, but the two taken together do constitute a change of domicil."2 The French Code provides: "Le changement de domicile s'opérera par le fait d'une habitation réele dans un autre lieu, joint à l'intention d'y fixer son principal établissement." 3 In his report upon this article, the Tribune Mouricault says: "L'intention, qui n'est point accompagnée du fait, peut n'indiquer qu'un projet sans issue; le fait, qui n'est point accompagné de l'intention, peut n'indiquer qu'un essai, qu'un déplacement passager, que l'établissement d'une maison sécondaire.” 4

Opinion of the Judges, 5 Met. 587; Otis v. Boston, 12 Cush. 44; Bulkley v. Williamstown, 3 Gray, 493; Kirkland v. Whately, 4 Allen, 462; Wilson v. Terry, 11 id. 206; Whitney v. Sherborne, 12 id. 111; Shaw v. Shaw, 98 Mass. 158; Ross v. Ross, 103 id. 575; Bangs v. Brewster, 111 id. 382; Borland v. Boston, 132 id. 89; Dupuy v. Wurtz, 53 N. Y. 556; Crawford v. Wilson, 4 Barb. 504; Vischer v. Vischer, 12 id. 640; Hegeman v. Fox, 31 id. 475; Brown v. Ashbough, 40 How. Pr. 260; Isham v. Gibbons, 1 Bradf. 69; Graham v. Public Adm'r, 4 id. 127; Black v. Black, 4 id. 174; Re Stover, 4 Redf. 82; Von Hoffman v. Ward, 4 id. 244; Pfoutz v. Comford, 36 Pa. St. 420; Reed's Appeal, 71 id. 378; Carey's Appeal, 75 id. 201; Hindman's Appeal, 85 id. 466; Casey's Case, 1 Ashmead, 126; McDaniel's Case, 3 Pa. L. J. 310; State v. Frest, 4 Harr. (Del.) 538; Pilson v. Bushong, 29 Gratt. 229; Long v. Ryan, 30 id. 718; Lindsay v. Murphy, 76 Va. 428; Plumer v. Brandon, 5 Ired. 190; Horne v. Horne, 9 Ired. 99; State v. Hallet, 8 Ala. 159; Smith v. Dalton, 1 Cin. S. C. Rep. 150; Hayes v. Hayes, 74 Ill. 312; Hall v. Hall, 25 Wis. 600; Vanderpool v. O'Hanlon, 53 Iowa, 246;

Hart v. Horn, 4 Kans. 232; Keith v. Stetter, 25 id. 100; Adams v. Evans, 19 id. 174; Foster v. Eaton & Hall, 4 Humph. 346; Layne v. Pardee, 2 Swan (Tenn.), 232; Williams v. Saunders, 5 Cold. 60; Hairston v. Hairston, 27 Miss. 704; Morgan v. Nunes, 54 id. 308; Tanner v. King, 11 La. Rep. 175; Gravillon v. Richards' Ex'rs, 13 id. 293; Cole v. Lucas, 2 La. An. 946; McKowen v. McGuire, 15 id. 637; Sanderson v. Ralston, 20 id. 312; Heirs of Holliman v. Peebles, 1 Tex. 673; McIntyre v. Chappel, 4 id. 187; Mills v. Alexander, 21 id. 154; Ex parte Blumer, 27 id. 734; People v. Peralta, 4 Cal, 175; Dig. 50, t. 1, 1. 20 ; Voet, Ad Pand. 1. 5, t. 1, no. 98; Donellus, De Jure Civili, 1. 17, c. 12, no. 30; Zangerus, De Except. pt. 2, c. 1, no. 12; Corvinus, Jur. Rom. 1. 10, t. 39; Denizart, verb. Dom. nos. 7, 17, 18; Pothier, Intr. aux Cout. d'Orléans, nos. 9, 14; Story, Confl. of L. § 44; Dicey, Dom. p. 73 et seq.; Westlake, Priv. Int. L. 1st ed. nos. 37-40; Id. 2d ed. §§ 229, 229 a, 242, 243.

2 Collier v. Rivaz, 2 Curteis, 855, slightly modified in Dupuy v. Wurtz, 53 N. Y. 556.

8 Art. 103.

4 Séance du 18 Ventôse, An 11.