Demolombe draws an ingenious and interesting parallel between the acquisition of domicil and the establishment of possession. He says: 5 "The principle . . . is that domicil is formed by taking legal possession of the place in which one wishes to establish himself; and it is thus that the two most important rules of possession are found applicable to domicil. (1) Legal possession, civil possession, is acquired only by fact and intention united, -'corpore et animo, neque per se corpore, neque per se animo;'6 by fact, that is to say, by occupation; by intention,—that is to say, in general, by will to have the thing for one's own, to keep it not for a time, not precariously, as the hirer or the depositary, but on the contrary to appropriate it in a manner permanent and durable; and here indeed is, as we shall see, the intention which particularly characterizes the establishment of domicil; this intention of the person who definitively adopts a certain place for the purpose of being there held and fixed. (2) Possession, once acquired, is preserved by intention alone; solo animo retinetur. In the same way domicil also is preserved, as we have seen, distinct from and independent of residence." § 126. Id. - On the one hand the mere fact of the transfer of bodily presence from one place to another will not work a change;1 and on the other, while mere intention is sufficient to retain a domicil already established,2 it is not sufficient to establish a new one, no matter how strong that intention 5 Cours de Code Napoléon, t. 1, no. 351. 6 Dig. 41, t. 2, 1. 3, § 1. 7 Code 7, t. 32, 1. 4:“Licet possessio nudo animo acquiri non possit, tamen solo animo retineri potest." 1 See authorities cited, infra, § 135. 2 White v. Brown, 1 Wall. Jr. C. Ct. 217; Hayes v. Hayes, 74 Ill. 312; Rue High, Appellant, 2 Doug. (Mich.) 515; McIntyre v. Chappel, 4 Tex. 187; Hardy v. De Leon, 5 id. 211, and authorities cited, infra, § 151, note 6; Pothier, Int. aux Cout. d'Orléans, no. 9; Story, Confl. of L. § 44; Denizart, verb. Domicile, nos. 8, 19; Westlake, Priv. Int. L. 1st ed. no. 38; Demolombe, Cours de Code Napoléon, t. 1, nos. 348, 351. 8 Bell v. Kennedy, L. R. 1 Sch. App. 307; Collier v. Rivaz, 2 Curteis, 855, supra; Brown v. Smith, 15 Beav. 444; The President, 5 C. Rob. 277; Drevon v. Drevon, 34 L. J. Ch. 129; Mitchell v. United States, 21 Wall. 350; Johnson v. Twenty-one Bales, 2 Paine, 601; s. c. Van Ness, 5; Penfield v. Chesapeake, etc. R. R. Co. 29 Fed. Rep. 494; Hallowell v. Saco, 5 Greenl. 143; Greene v. Windham, 13 Me. 225; Gorham v. Springfield, 21 id. 58; Fayette v. Livermore, 62 id. 229; Dupuy v. Wurtz, 53 N. Y. 556; Chaine v. Wilson, 1 Bos. 673; 6 may be or how solemnly expressed.5 Fact must concur with intention, otherwise no change takes place. Sir William Scott says, in "The President":"A mere intention to remove has never been held sufficient, without some overt act, being merely an intention, residing secretly and undistinguishably in the breast of the party and liable to be revoked every hour;" and he adds that even strong declarations of intention would not suffice. Paulus decided, "Domicilium re et facto transfertur, non nuda contestatione." Casey's case is a strong illustration of this principle. The petitioner (in insolvency) having determined to remove from New York, where he was domiciled, to Philadelphia and to reside there permanently, sent his wife and family to the latter city, but was himself detained in New York a month longer in the adjustment of his affairs. The court, remarking that no other weight could be attached "to his sending his wife and children here except as a strong circumstance manifesting his intention to remove," dismissed the petition on the ground of want of jurisdiction, for which six months' residence was required. Almost identical with this case is the very recent case of Penfield v. The Chesapeake, etc. R. R. Co. in the U. S. Circuit Court for the District of New York, in which the facts were that a resident of St. Louis, Mo., having formed the intention of transferring his residence to Brooklyn, N. Y., in pursuance of that intention sent his wife and family to the latter city in August, 1883. Upon their arrival his wife. hired a house there, in which she and her children thereafter continued to live. The plaintiff himself did not come to Brooklyn until January of the next year. Upon these facts the court held that he was not a resident of the State of New York prior to Nov. 30, 1883, the question being one of limitation.7 Black v. Black, 4 Bradf. 174; Lyle v. Foreman, 1 Dall. 480; Casey's Case, 1 Ashmead, 126; Ringgold v. Barley, 5 Md. 186; State v. Frest, 4 Harr. (Del.) 538; Smith v. Croom, 7 Fla. 81; State v. Hallet, 8 Ala. 159; Smith v. Dalton, 1 Cin. S. C. Rep. 150; Hall v. Hall, 25 Wis. 600; Hart v. Horn, 4 Kans. 232; and many of the authorities cited, supra, § 125, note 1. 4 Forbes v. Forbes, Kay, 341. 5 Waller v. Lea, 8 La. Rep. 213; Nelson v. Botts, 16 id. 596; Yerkes v. Brown, 10 La. An. 94. Dig. 50, t. 1, 1. 20. 7 A case of municipal domicil, Bangs § 127. The requisite Factum complete Transfer of Bodily Presence. The requisite fact, or factum, is the transfer of bodily presence from the old place of abode to the new; and this factum must be complete.1 "The factum must be not merely an inchoate act, not merely the first step towards the factum, but the completion of the factum by actual residence." "The intention must be to leave the place where the party has acquired a domicil and to go to reside in some other place as the new place of domicil, or the place of new domicil," 2 and the factum must be commensurate with it. Therefore it is that a new domicil cannot be acquired in itinere, except in cases of reverter, hereafter to be discussed. § 128. Dictum of Sir John Leach in Munroe v. Douglas. A loose and obscure dictum of Sir John Leach in Munroe v. Douglas has given much trouble, and has misled several eminent jurists into stating doctrine in entire conflict with elementary principles and the great weight of the decided cases. His language is as follows: "It is said that having afterwards quitted India in the intention never to return thither, he abandoned his acquired domicil, and that the forum originis revived. As to this point I can find no difference in principle between the original domicil and an acquired domicil, and such is clearly the understanding of Pothier in one of the passages which has been referred to. A domicil cannot be lost by mere abandonment. It is not to be defeated animo merely, but animo et facto, and necessarily remains until a subsequent domicil be acquired unless the party die in itinere toward an intended domicil." The qualification of death in itinere appears to be a singular one, and under all the circumstances it is hard to understand exactly what his Honor meant by it. It was a mere dictum, apparently v. Brewster, 111 Mass. 382, is in conflict with these cases; but the doctrine of the former is questionable, at least if extended beyond its particular facts, and probably would not be applied to national or quasi-national domicil. 1 Lyall v. Paton, 25 L. J. Ch. 746; Pothier, Intr. aux Cout. d'Orléans, no. 15; Westlake, Priv. Int. L. 1st ed. no. 39, rule 6. But see also Id. 2d ed. § 244. Pothier says (loc. cit.): "La volonté de [CHAP. VII. thrown in out of an abundance of caution, as a possible qualification of the general principle laid down, probably to cover the Scotch case of Colville v. Lauder,2-a case of reverter, which had been cited in argument. There were, however, no facts before his Honor to which the qualification could be applied, as it was clear from all the evidence and was assumed by the court that Dr. Munroe, whose domicil was in question, did not die in itinere toward an intended domicil, but while on a visit to his native land (Scotland), and it was held that his acquired domicil in India continued. The meaning of the Vice-Chancellor has been discussed at considerable length by Kindersley, V. C., in Lyall v. Paton3 and 2 Morrison, Succession, App. no. 1; Robertson, Pers. Suc. p. 166, and see infra, § 129, note 2. Supra, Kindersley, V. C., says: "Reliance is placed upon the dictum of Sir John Leach in the case of Munroe v. Douglas. In that case, I may observe, the gentleman in question, Dr. Munroe, had acquired an Anglo-Indian domicil by long residence in India. He was in the East India Company's service; his domicil of origin was Scotch; he had returned to England, and when in England, owing to the state of his health, he was in uncertainty whether he should settle himself in England or in Scotland. In that state he went to pay a temporary visit to a friend in Scotland, and while on that visit he died in Scotland. Those were the circumstances upon which the argument and the judgment turned. Sir John Leach made this observation, and it is an observation relied upon 'A domicil cannot be lost by mere abandonment.' I think there is no doubt that that is quite in accordance with the law of domicil, at least as established by the law of this country. He adds: It is not to be defeated animo merely, but animo et facto.' Nobody, I think, will dispute that proposition. Then he adds this, ' and necessarily remains until a subsequent domicil be acquired.' That, I think, is a proposition in accordance also with the law of domicil held by the courts of this country. Then he adds this, 'unless the party die in itinere towards an intended domicil.' Now, that is the dictum upon which reliance is very naturally and very properly placed by the learned counsel for the Crown; and it is contended that that is to be taken as an authority, at least as indicating the opinion of Sir John Leach, that if a party, having acquired a certain domicil different from his domicil of origin, leaves the country where he has acquired the domicil with the intention of acquiring a domicil in another country; if he sets out upon the journey towards that other country, though he never arrives there, dying in itinere, he does acquire the domicil which he intended to acquire. That is the view which is taken of that dictum. "I confess it appears to me, when the language is examined, that it is, to say the least, somewhat doubtful whether the language really does import that opinion, especially when I take it coupled with the argument of counsel, which was a very elaborate and learned argument, referring to authorities of all kinds and from all quarters, the object of it being to show that if a party has acquired a domicil, and, intending to abandon that domicil and acquire another, starts upon his journey or voyage towards that domicil, but dies in itinere, the domicil of origin will revert. That was the contention that was strongly labored for by the learned counsel. The argument is by other judges in other cases, and various conjectures have been started; but the obscurity still remains, and the case has extremely long, and I do not think it necessary to occupy time by referring to it in detail to show that that was the labored object of counsel in using that argument. The observation of Sir John Leach, no doubt, had reference to the argument used and the cases cited in support of that argument. 'Now, what is it that Sir John Leach says? What is his general proposition? And then, what is the exception to it, if there be an exception? He says: A domicil cannot be lost by mere abandonment; it is not to be defeated animo merely, but animo et facto, and necessarily remains,' — that is, the old domicil remains, 'until a subsequent domicil be acquired.' Now, what is the exception to that?' unless the party die in itinere toward an intended domicil.' So that he says you do not acquire the new domicil by dying in itinere towards an intended domicil; but the effect of that is that the old domicil does not remain. The domicil may be abandoned, but Sir John Leach may have considered that the argument was a good argument that the domicil of origin would revert in such a case. That, I believe, is the doctrine of the civil law, and it appears to be held by some at least of the American jurists. But, however, let me assume that the proposition which is supposed to be contained in this dictum of Sir John Leach was a proposition which he meant to maintain or to indicate. I think that it is, to say the least, a proposition extremely questionable. It is admitted on all hands and by all the authorities, it is admitted by this very judgment of Sir John Leach, in Munroe v. Douglas, that in order to change the domicil there must be a concurrence of two things, the animus and the factum, - there must be the intention and there must be the act done. "Now, what must be the intention? The intention must be to leave the place where the party has acquired a domicil, and to go to reside in some other place as the new place of domicil, or the place of new domicil. That is the intention supposed. Then must not the factum be commensurate with that? Must it not be to the same effect as the intention? And taking the first step towards the factum is not the factum; the setting out for the purpose of going to reside in another country is not residing in another country. And surely the factum which is referred to when you say there must be the animus and the factum combined, is the actual residence in the other country. That is the factum, and not the mere factum of setting out with the intention of arriving, some day or other, in that country." And after commenting upon AttorneyGeneral v. Dunn, 6 M. & W. 511, and Munro v. Munro, 7 Cl. & F. 842, he says: "What Lord Cottenham there says [Munro v. Munro] with regard to the abandonment of domicil of origin and acquiring a new one, appears to me, according to our law, to apply with equal force to an acquired domicil, that in order to abandon that and acquire a new one, there must be le concours de la volonté et du fait; that is, the factum and the animus must together combine; and the factum must be not merely an inchoate act, not merely the first step towards the factum, but the completion of the factum by actual residence." In this case Lyall, the testator, had a Scotch domicil of origin, but acquired a domicil in India, and after residing there for upwards of twenty years, he sailed from India in a vessel bound for an English port and died in itinere. Vice-Chancellor Kindersley held that even if his intention had been to settle in England his Indian domicil would have adhered to him until his actual arrival in England, but at the same time held that there was not sufficient evidence of such intention. |