§ 175. Id. Animus Manendi does not exclude the Possibility of Change. But whatever may be the nature of the requisite animus manendi, it cannot be understood as excluding or even restricting the possibility of future change. The power to The General Term of the Superior Court granted a new trial; and in affirming this decision, Miller, J., speaking for the Court of Appeals, said: "At the time of the death of the child and for seven months prior thereto, his father, the plaintiff, was living there. He had previously resided in England, and his wife and the child came to join him and to live with him in New York. He testified that he came there for the purpose of making a home and a living. This evidence was erroneously stricken out; and as it was material upon the question of residence, and as the action can be maintained as already shown, this error would entitle the plaintiff to a new trial. But without regard to this testimony, and independent of it, the evidence upon the trial tends to show that his domicil was in New York. He had left or emigrated from his own country, located, and was at work in New York, thus showing an intention to establish a residence there, and so far as the evidence goes, evinced no intention or determination to reside anywhere else. Here was a prima facie evidence that he was domiciled there, and it was for those who claim otherwise to rebut this evidence. If he had not a domicil in New York, it would be difficult to say how a domicil could be proved where a person who had left his own country had thus settled." In Thorndike v. Boston (1 Met. 242), Shaw, C. J., says: "If the plaintiff had left Boston and actually taken up a residence with his family in Scotland, without any intention of returning, thereby assuming that country as his definite abode and place of residence, until some new intention had been formed or resolution taken, he had ceased to be an inhabitant of Boston, liable to taxation for his personal property." But he also says in another 1 "The term permanent abode, however, excludes neither a temporary absence nor a future change, the reservation of which faculty is plainly implied." Savigny, System, etc. § 353; Guthrie's trans. p. 97. "As a criterion, therefore, to ascertain domicil, another principle is laid down by the authorities as well as by practice, - it depends upon the intention, upon the quo animo, — that is the true basis and foundation of domicil: it must be residence sine animo revertendi, in order to change the domicilium originis; a temporary residence for the purposes of health or travel or business has not the effect; it must be a fixed and permanent residence, abandoning finally and forever the domicil of origin, yet liable still to a subsequent change of intention." Per Sir John Nichol, Stanley v. Bernes, 3 Hagg. Eccl. 373. "If, in order to constitute a domicil, there were required an animus manendi so permanent and so absolute as to be independent of any possible change of circumstances, I do not understand how, in the constant uncertainty and transition of sublunary events, a domicil ever could be established." Per Lord Fullerton, in Commissioners of Inland Revenue v. Gordon's Ex'rs, 12 D. (Sc. Sess. Cas. 1850), 657, 662. "Now, what is a permanent abode? Must it be an abode which the party does not intend to abandon at change, being of the essence of domicil, is always reserved, even if we adopt the strictest possible view of the animus manendi. Domicil is not only freely chosen, but freely changed, by one who is sui juris; and even though he intend to remain in a new place of abode always, or for life, he is at liberty to change his intention and adopt another place as circumstances may require or caprice suggest. It is, therefore, necessary in solving a question of change of domicil to confine ourselves closely to the point of time at which the change is alleged to have occurred, and to bear in mind that subsequently formed intention is not only not determinative, but is very frequently misleading.2 § 176. Id. Contingent Animus Manendi not sufficient. —A mere conditional or contingent animus manendi is not sufficient. Thus, where a citizen of Illinois went to Tennessee, intending to settle there, if the country suited him, it was held that he did not thereby gain a domicil in Tennessee. So in the case of Bell v. Kennedy, in the House of Lords, B. left his domicil of origin in Jamaica and went to Scotland, intending to settle there permanently, if he could find an estate to suit any future time? This, it seems to us, in active life in this State can say, wherever he may be placed, This is and ever shall be my permanent abode.' It would be safe to say a permanent abode, in the sense of the statute, means nothing more than a domicil, a home which the party is at liberty to leave, as interest or whim may dictate, but without any present intention to change it." Breese, J., in Dale v. Irwin, 78 Ill. 160, 181. So also the language of Marshall, C. J., in The Venus, supra, § 171, note 2. This possibility of future change is provided for in the definition which Lord Wensleydale quotes with approval in Whicker v. Hume (7 H. L. Cas. 124, 164): "Habitation in a place with the intention of remaining there forever, unless some circumstance should occur to alter his intention." It is also provided for in the definition framed by 2 Kindersley, V. C., in Lord v. Colvin, supra, § 66. See also Butler, P. J., in Re Lower Oxford Election, 11 Phila. 641. 2 A conspicuous example is that of Story himself, who was thus misled by what appears to have been the subsequently formed "floating intention" of the testator in Stanley v. Bernes, see supra, § 155. 1 Bell v. Kennedy, L. R. 1 Sch. App. 307; Craigie v. Lewin, 3 Curteis, 435 ; Johnson v. Twenty-one Bales, 2 Paine, 601; s. c. Van Ness, 5; Ross v. Ross, 103 Mass. 575; Plummer v. Brandon, 5 Ired. Eq. 190; Smith v. Dalton, 1 Cin. S. C. Rep. 150; Smith v. People, 44 Ill. 16; Wilkins v. Marshall, 80 id. 74; Beardstown v. Virginia, 81 id. 541; Williams v. Henderson, 18 La. Rep. 557. See also Pfoutz v. Comford, 36 Pa. St. 420, and Reed's Appeal, 71 id. 378. 2 Smith v. People, supra. him; in this he failed up to the time when his domicil became important, and it was held that his domicil of origin continued, and this although he had no intention of returning to it in any event. This point is also illustrated by the case of Craigie v. Lewin, already referred to.3 § 177. Id. Intention to reside presently necessary. — Again, it is necessary that the intention should be to reside presently as well as permanently.1 Personal presence, coupled with intention to begin in futuro a residence of however permanent character, is not sufficient. Thus, in the case of AttorneyGeneral v. Dunn, an Englishman went abroad and purchased the title, castle, and estate of R. in the Papal States, and expended a large sum of money in fitting up the castle for his future permanent residence. He died in Rome while the improvements were still going on, having in the mean time returned to England, and spent much of his time in travelling. The court held that, his intention having been only to take up his residence at R. at a future time, his English domicil continued. So in Carey's Appeal, the testator, who had lived in Pennsylvania upwards of forty years, but had subsequently become domiciled in Rhode Island, stopped at Philadelphia en route to the South, where he intended to spend the winter, and while in Philadelphia expressed his intention to return there to reside permanently, and directed his son-in-law to look for a house for him in that city, to be taken on his return from the South the next spring. But it was held that, as he contemplated, not an immediate, but a future settlement in Pennsylvania, his Rhode Island domicil remained. In Hall v. Hall, it was held that one who came into the State of Wisconsin and engaged a lodging-place, but without occupying it left the same day, intending to return, and went into other States to transact business, did not acquire a domicil in Wisconsin until his subsequent return. 3 Supra, § 157. 1 Attorney-General v. Dunn, 6 Mees. & W. 511; Arnott v. Groom, 9 D. (Sc. Sess. Cas. 2d ser. 1846) 142, per Lords Wood and Fullerton; Carey's Appeal, 75 Pa. St. 201; Smith v. Croom, 7 Fla. 81; State v. Hallett, 8 Ala. 159; Talmadge Adm'r v. Talmadge, 66 id. 199; Hall v. Hall, 25 Wis. 600. See also authorities cited, supra, § 176, note 1; and see apparently contra, Williams v. Roxbury, 12 Gray, 21, the facts of which, however, as well as the manner in which the case arose, are peculiar. See also Chicago & N. W. Ry. Co. v. Ohle, 117 U. S. 123. Whether a married man who has gone into another State for the purpose of selecting and preparing a home for himself and family, and who has actually selected and prepared such home, thereby acquires a domicil, notwithstanding his intention to return for the purpose of bringing his family to the new place of abode, is a question left in some doubt by the apparent conflict of the decisions,2 although the weight of authority appears to be in favor of the affirmative. 2 Compare State v. Hallett, supra, and Talmadge's Adm'r v. Talmadge, supra, with Burnham v. Rangeley, 1 Woodb. & M. 7; Swaney v. Hutchins, 13 Neb. 266; Johnson v. Turner, 29 Ark. 280; Republic v. Young, Dallam, 464; Russell v. Randolph, 11 Tex. 460. State v. Hallett was a case of great hardship. The defendant, a citizen of Georgia, went to Alabama, declaring his intention to settle in the latter State, if he could procure a suitable site for an iron foundry. He did procure such site, and having set another person to work to get out timber for building, he returned to Georgia to bring his family. Having been delayed there several weeks, he got back to Alabama, Nov. 26, 1843, established his foundry, and continued to reside there up to the time the case was decided. He voted in Alabama, Nov. 11, 1844, and for this was convicted upon the ground that he had not resided in the State one year. His conviction was affirmed by a divided supreme court, two judges to one hold ing that he did not acquire a domicil until Nov. 26, 1843. In Talmadge's Adm'r v. Talmadge, the facts were that Talmadge, who was domiciled in Illinois, came to Alabama and purchased a tract of land, declaring at the time of the purchase, and previously and subsequently thereto, his intention to bring his family from Illinois and settle upon the tract so purchased. He thereupon procured the services of a workman to improve said property, superintending the improvement himself, and stating that he intended to occupy it for his home. Shortly afterward he returned to Illinois, declaring at the time his purpose to bring his family back with him to reside in Alabama on said property. Upon reaching Illinois he shipped a part of his goods to a railroad station, en route for Alabama; but before he finished shipping he died. While in Illinois, on his return from Alabama, he declared that he was a citizen of the latter State. Upon these facts it was held that he had not acquired a domicil in Alabama. In Burnham v. Rangeley, the defendant, whose domicil was in question, had removed the major part of his family from Maine to Virginia at the time inquired about, and had returned for the rest (his wife and one daughter). His domicil was held to have been changed. In Swaney v. Hutchins, S. went to Nebraska in May from Illinois, where he had previ ously resided, intending to reside permanently in Nebraska. He proceeded to erect a house on land belonging to his wife there, intending as soon as it was completed to bring his family to reside in it. The building was not completed until October. In August he returned to Illinois, in consequence of the sickness of his wife, and in October brought her and his family to Nebraska. In June an attachment was issued against him and his wife as non-residents. Held that they were not non-residents, and that attachment did not lie, the court putting the case upon the ground of domicil. In Johnson v. Turner, J., who was domiciled in Mississippi, sold his real estate there and went to Arkansas in the fall of 1859, and purchased real estate there; his wife and children going to her mother's in Kentucky. He cultivated his place in Arkansas, and in § 178. Animus need not be Present at the Time of Removal; it may grow up afterwards. It is not necessary, however, that the animus should be present at the time of removal. It may grow up afterwards, and engraft itself upon a residence, originally taken for a special or temporary purpose, so as to transmute it into domicil.1 In Udny v. Udny, Lord Westbury said: "Residence originally temporary, or intended for a limited period, may afterwards become general and unlimited; and in such a case, so soon as the change of purpose, or animus manendi, can be inferred, the fact of domicil is established." § 179. At what Point of Time Domicil vests and is divested. -All that is necessary for the acquisition of a domicil of choice is that the factum and the animus should at some time coexist, that absence from the old place of abode and presence in the new should concur with intention to abandon the old and presently and permanently reside in the new. And as the new domicil vests instantly upon the concurrence of the elements which are necessary for its acquisition,1 the summer of 1860 went to Kentucky, with the avowed intention of bringing back his wife and family with him. In the fall of the same year he returned without them, alleging, as the reason for not bringing them, that his mother-inlaw could not come and that his wife had remained to be with her. In 1861 he again went to Kentucky, and made his arrangements to bring back with him his wife and family, but was prevented from so doing by sickness, of which he subsequently died. He paid poll tax in Arkansas, had his land assessed on the citizens' list, and frequently declared his intention of residing permanently in Arkansas. Upon these facts it was held that he had acquired a domicil in Arkansas, and that his family were entitled to homestead under the laws of that State. In Russell v. Randolph, R. came to Texas in 1834, and in August, 1835, obtained a grant of land from the Republic. Afterwards he left for the State of Maine, where he had previously been domiciled, for the purpose of bringing out his family to settle upon the land conceded to him, and soon after reaching Maine he died. Held that he was domiciled in Texas, and his family were entitled to homestead under the laws of that State. Republic v. Young was a similar case. Brown v. Boulden, 18 Tex. 431 (municipal domicil), is appar ently in conflict with the other Texas cases; but it was decided rather to carry out the spirit of a statute which seemed to require a notorious place of abode. 1 Udny v. Udny, L. R. 1 Sch. App. 441; Platt v. Attorney-General, L. R. 3 App. Cas. 336; Haldane v. Eckford, L. R. 8 Eq. Cas. 631; Brunel v. Brunel, L. R. 12 Eq. Cas. 298; Hoskins v. Matthews, 8 De G. M. & G. 13; The Harmony, 2 C. Rob. 322; The Ann Green, 1 Gall. 274; Hampden v. Levant, 59 Me. 557; Carey's Appeal, 75 Pa. St. 201; Colburn v. Holland, 14 Rich. Eq. 176; Rue High, Appellant, 2 Doug. (Mich.) 515; Pothier, Int. aux Cout. d'Orléans, no. 15; Story, Confl. of L. § 45. 1 Supra, § 134. |