a Massachusetts case, we find it laid down, "If his residence out of the Commonwealth was but temporary, yet if the time of his proposed return was indefinite, he retained no domicil in the Commonwealth;" and to the like effect are several other cases. It is obvious that these cases are in utter conflict with all the foreign authorities, British and Continental, as well as the best-considered American decisions; and if followed in cases involving questions of private international law, can only introduce confusion by wholly breaking down the distinction between domicil and temporary residence. Who, for instance, would seriously think of submitting to such a test questions of testamentary capacity, personal succession, and retaining no dwelling-house or boarding-place in that State, but intending to return. The question was whether the time of his absence should be reckoned as a part of the time for the running of the statute of limitations. The court below substantially ruled that it should; and the Supreme Court, in reversing, used the language above quoted. In seeking for an explanation of this decision the learned editor of the Eighth Edition of Story on the Conflict of Laws holds (p. 60) that, although the court uses the term "domicil," the case is not one of domicil at all, but of residence less than domicil, and that the latter term is not used in its technical sense. However this may be, it is to be hoped that this case may never pass for an authority on domicil in the usual sense of that term. 7 Holmes v. Greene, 7 Gray, 299; Venable v. Paulding, 19 Minn. 488; Graham v. Trimmer, 6 Kans. 230. See also Hallet v. Bassett, 100 Mass. 167. Holmes v. Greene was a singular case, and calls for some notice. The plaintiff, who was domiciled at Fall River, Mass., having been obliged to give up his house in that place, and being unable to secure another there, removed with his family across the State line to Tiverton, Rhode Island, giving notice at the time to the selectmen of both Fall River and Tiverton, that his removal was only for a temporary purpose, and that he intended returning to the former place. Thirteen months afterwards he did return to Fall River with his family, his office and place of business having continued there all the while. While living in Rhode Island he requested the restoration of his name to the list of voters of Fall River, it having been stricken off, and, upon the refusal of the selectmen to comply with his request, he brought suit against them for damages. It would seem upon these facts that there never was a clearer case of retention of domicil. Nevertheless, the court held the contrary, and in so doing used this language: "It is true that in cases where the domicil of a party is in issue, evidence of his intent may have an important and decisive bearing on the question, but it must be in connection with other facts, to which the intent of the party gives efficacy and significance. . . . But no case can be found where the domicil of a party has been made to depend on a bald intent, unaided by other proof. The factum and the animus must concur in order to establish a domicil. The latter may be inferred from proof of the former. But evidence of a mere intent cannot establish the fact of domicil." In striking contrast with this case is the decision of the House of Lords in Maxwell v. McClure, see supra, § 160, note 6. That domicil may be retained by intent alone, see supra, § 126. ... capacity for legitimation per subsequens matrimonium, or the like? 8 But in the face of such loose views, it is not surprising to find several Maine judges carrying them to their logical conclusion by suggesting that the true test is simply intention to remain, whether for a definite or an indefinite time, and that therefore residence, accompanied with intention to remain for a term of years, would work a change of quasi-national domicil. § 172. Id. id. id. Much of the confusion on this subject in the American cases is traceable, directly or indirectly, to misconception of the meaning of Story's oft-quoted passage, given above. But that that illustrious jurist did not use the phrase "indefinite time" in the sense of mere uncertainty of duration, is plain from the language which he uses throughout the chapter on domicil in his work on "The Conflict of Laws," and particularly from his definition of domicil (following Dr. Lieber) as a "true, fixed, and permanent home," 2 as well as from the language which he used on the bench.3 § 173. Id. Intention to make the New Place the Home of the Party. Story says: 1 "Two things then must concur to constitute domicil: first, residence; and secondly, the intention of making it the home of the party." And a large number of authorities, British and American,2 have followed him either 8 Davis, J., in Gilman v. Gilman, 52 Me. 165, 173, says: "If a citizen of Maine, with his family, or having no family, should go to California to engage in business there with the intention of returning at some future time, definite or indefinite, and should establish himself there in trade or agricul ture, it is difficult to see upon what principle his domicil could be said still to be here. His residence there, with the intention of remaining there a term of years, might so connect him with all the interests and institutions, social and public, of the community around him as to render it not only proper, but important for him to assume the responsibilities of citizenship, with all its privileges and its burdens. Such residences See, e. g., The Ann Green, 1 Gall. 274; Catlin v. Gladding, 4 Mason, 308. 1 Confl. of L. § 44. 2 Whicker v. Hume, 7 H. L. Cas. 124; Moorhouse v. Lord, 10 id. 272; Jopp v. Wood, 34 Beav. 88, affirmed 4 De G. J. & S. 616; Doucet v. Geoghegan, L. R. 9 Ch. D. 441; Lord v. Colvin, 4 Drew. 366; Douglas v. Douglas, L. R. in words or in substance. "Home" itself, when properly understood, suggests the idea of permanency, although, as the word has been frequently loosely used, some authorities, to prevent misconception, speak of "permanent home" as the thing a person must intend to set up in acquiring a domicil of choice. Thus Lord Cranworth says, in Whicker v. Hume: "By domicil we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it." Wickens, V. C., in Douglas v. Douglas, says: "It seems to me that the intention required for a change of domicil, as distinguished from the action embodying it, is an intention to settle in a new country as a permanent home." And Story himself, as we have seen, defines domicil as a "true, fixed, permanent home, etc." 5 § 174. Id. Negative View of Animus Manendi, without any Present Intention of Removing. A negative view of the 12 Eq. Cas. 617; White v. Brown, 1 8 In Doucet v. Geoghegan, supra, Jessel, M. R., says: "In all cases a difficulty arises as to the meaning of the word 'domicil;' but it evidently implies the intention to make the place one's home, and a home itself is suggestive of permanency." See also remarks of Du Pont, J., in Smith v. Croom, supra. In addition to the English cases cited in note 2, Dupuy v. Wurtz, supra; Fry's Election Case, supra; Horne v. Horne, supra; Hayes v. Hayes, supra; Rue High, Appellant, supra; Pearce v. State, supra; Hairston v. Hairston, supra. See also Dicey, Dom. pp. 1, 3, 42 et seq., and Foote, Priv. Int. Jur. p. 15. In Jopp v. Wood, supra, Turner, L. J., says: "The mere fact of a man residing in a place different from that in which he has been before domiciled, even although his residence there may be long and continuous, does not of necessity show that he has elected that place as his permanent and abiding home. He may have taken up and continued his residence there for some special purpose, or he may have elected to make the place his temporary home. But domicil, although in some of the cases spoken of as a home, imports an abiding and permanent home and not a mere temporary one." 5 Confl. of L. § 41; see supra, § 65. animus manendi has sometimes been put. This has been expressed in the form of a definition, thus: "That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom."1 That this is inaccurate as a definition either of domicil in general or of domicil of choice, could easily be shown. Indeed, it was originally intended hardly as a formal definition, but rather as a protest against, and an approximate correction of, the too narrow definition of Vattel. Its author was Parker, J., who, in Putnam v. Johnson, a case of municipal domicil, used the following language: "The definition of domicil, as cited from Vattel by the counsel for the defendants, is too strict, if taken literally, to govern in a question of this sort; and, if adopted here, might deprive a large portion of the citizens of their right of suffrage. He describes a person's domicil as the habitation fixed in any place, with an intention of always staying there. In this new and enterprising country it is doubtful whether one half of the young men, at the time of their emancipation, fix themselves in any town with an intention of always staying there. They settle in a place by way of experiment, to see whether it will suit their views of business and advancement in life; and with an intention of removing to some more advantageous position if they should be disappointed. Nevertheless, they have their home in their chosen abode while they remain. Probably the meaning of Vattel is, that the habitation fixed in any place, without any present intention of removing therefrom, is the domicil. At least, this definition is better suited to the circumstances of this country." But thus explained, however applicable to cases of municipal domicil, it is inapplicable to cases of national and quasi 1 Story, Confi. of L. § 43; Putnam v. Johnson, 10 Mass. 488, 501; Gilman v. Gilman, 52 Me. 165; Ryal v. Kennedy, 40 N. Y. Super. Ct. 347; Miller's Estate, 3 Rawle, 312; Carey's Appeal, 75 Pa. St. 201; Hindman's Appeal, 85 id. 466; Pilson v. Bushong, 29 Gratt. 229; Rue High, Appellant, 2 Doug. (Mich.) 515; Hardy v. De Leon, 5 Tex. 10 How. Pr. 477, which is, however, a case of attachment, and consequently, according to the view held by the New York courts, not a case of domicil, but of residence less than domicil. It is, however, cited as an authority for this position in Ryal v. Kennedy, supra, a case of jurisdiction to grant administration, and, therefore, clearly one of domicil. national domicil,2 a tentative settlement or contingent animus manendi, such as that referred to, being insufficient for the acquisition of such domicil; and, a fortiori, the mere absence of intention as to future residence would be insufficient. For the acquisition of domicil there must be animus manendi of some description. It is possible that this is implied in the words "habitation fixed." But what are we to understand by these words? Certainly not mere physical presence; there must be something more than that. Would residence for a special and temporary purpose, there being no animus revertendi, and no intention of any kind with regard to the future, after the accomplishment of such purpose, be sufficient? Clearly not. For in such case, according to the great weight of the authorities, the prior domicil would be presumed to continue. Or do the words contemplate the manner of living? Probably not. It will be observed that in all the cases of national or quasi-national domicil in which this negative description of the animus manendi has been used, there has been evidence more or less strong of intention to remain for an unlimited time.1 2 This is recognized, although somewhat confusedly, in Stratton v. Brigham (2 Sneed, 420), where Totten, J., says: "There is, no doubt, a distinction between residence and domicil. "The domicil is the habitation fixed in any place with an intention of always staying there.' Vattel, 163. In this sense he who stops even for a long time in a place, for the management of his affairs, has only a simple habitation there, but has no domicil. Thus the 'envoy of a foreign prince has not his domicil at the court where he resides.' Vattel, 164. This is national domicil, in the sense of the public law, by which the national character of the person and the right of succession to movable property are determined. But when used in connection with subjects of domestic policy, as taxation, settlement, voting, and the attachment law, the term 'domicil' has a more confined and restricted import, and implies the same as residence: That is, the home or habitation fixed in any place without a present intention of removing therefrom.' The right of attachment, however, if dependent at all upon domicil, depends upon national or quasi-national domicil. See infra, § 176. See particularly Kennedy v. Ryal, 67 N. Y. 379 (affirming Ryal v. Kennedy, supra). In that case the plaintiff immigrated from England to the City of New York, and after having worked in that city for seven months was followed by his wife and two children. Upon the trial he testified "that he came to New York for the purpose of making it his home and living there." This was stricken out on motion of defendant's counsel, and the suit dismissed upon the ground that, the plaintiff not being domiciled in New York, the Surrogate had no jurisdiction to issue to him letters of administration upon the estate of his infant child, for whose death, through the negligence of defendant, damages were sought to be recovered. |