question being raised, he declared in legal form his intention to become a citizen of the United States. Upon application for naturalization he was held to be domiciled in New York. Daly, J., in a learned opinion, in which the subject of domicil is considered at some length, said: "Another circumstance, and generally a controlling one, is that he is a married man whose residence is naturally at the place and in the country where his wife and family dwell. But this is not conclusive in all cases, for it is not in the power of a man's wife or family to control his free right to fix his residence and place of permanent abode in any part of the world to which his interests or his inclination may lead him. It is the wife's duty to follow the fortunes of the husband; to go whither he goeth,' and abide in that place where it is most convenient for him to enjoy her society, and where he is able and willing to make provision for her support and that of her children." Porterfield v. Augusta* serves as a further illustration. In that case the husband, a shipmaster, was domiciled in Brooklyn, New York. During his absence at sea his wife went to Augusta, Maine, taking with her her children, and there remained until summoned to meet him in Brooklyn on his return from his voyage. It was held that the husband did not thereby become domiciled in Augusta. § 405. The Presumption that a Man is domiciled where his Wife and Family reside is not conclusive. However cogent may be the fact of the wife dwelling at a place as proof that he is domiciled there, it is by no means conclusive. The domicil of a married man is not necessarily with his wife and family. The effect of the residence of the wife being after 4 67 Me. 556. 1 Warrender v. Warrender, 2 Cl. & F. 488; Forbes v. Forbes, Kay, 341; Douglas v. Douglas, L. R. 12 Eq. C. 617; Burnham v. Rangeley, 1 Wood. & M. 7; Blair v. Western Female Seminary, 1 Bond, 578; Penfield v. Chesa peake, &c. R. R. Co., 29 Fed. R. 494; Richmond v. Vassalborough, 5 Greenl. 396; Greene v. Windham, 13 Me. 225; Parsons v. Bangor, 61 id. 457; Cambridge v. Charlestown, 13 Mass. 501; McDaniel v. King, 5 Cush. 469; Weston v. Weston, 14 Johns. 428; William son v. Parisien, 1 Johns. Ch. 389; Matter of Bye, 2 Daly, 525; McPher son v. Housel, 13 N. J. Eq. 35; Casey's Case, 1 Ashm. 126; Reed v. Ketch, 1 Phila. 105; Bradley v. Lowery, Speer's Eq. 1; Gilmer v. Gilmer, 32 Ga. 685; Smith v. Croom, 7 Fla. 81; Prieto v. Duncan, 22 Ill. 26; Wells v. People, 44 id. 40; Scholes v. Murray Iron Works Co., 44 Iowa, 190; Nugent v. Bates, 51 id. 77; Exchange Bank v. Cooper, 40 Mo. 169; Pearce v. State, 1 Sneed (Tenn.), 63; Hairston v. Hairston, 27 Miss. 704; Sanderson v. Ral all but evidence of intention may be rebutted by evidence of a stronger character."2 If it clearly appears that the husband has deserted his wife or the wife her husband, or if they have separated and are living apart under a mutual understanding or agreement, of course the residence of the wife is not determinative of the domicil of the husband. So, too, where a man goes to a new place intending to settle there and to prepare a home for his family, leaving the latter behind at the old place of abode (to follow him at such time as he shall be prepared to receive them), it has been held in numerous cases that he may gain a domicil in the new place even before their arrival,3-in many cases, moreover, although it appears that he intends returning to bring them to the new place of abode. § 406. Residence of Children, Grandchildren, and other Relatives. In Stevenson v. Masson,1 the testator, whose domicil of origin was Canadian, retired from business there, sold his house and burial-place, and went to France for the purpose of ston, 20 La. An. 312; Russell v. Randolph, 11 Tex. 460; Lacey v. Clements, 36 id. 661; Story, Confl. of L. § 46; Dicey, Dom. p. 125. In Pearce v. The State, Totten, J., thus states the doctrine: "It is not true that the residence of a married man's family is necessarily to be deemed his domicil. For besides the supposed case of a separation there may be a temporary residence only for the family or for transient purposes at a place which is not his permanent residence and home. It is true that the residence of a married man's family is in general to be deemed his domicil, because they usually reside at his permanent home; the place to which whenever he is absent for business or pleasure, he has the intention to return. The residence of the family is a fact from which the domicil may be presumed; and this is a presumption of fact and not of law, as was erroneously stated by the judge. The presumption may be removed by proof to the effect that the true domicil is at a different place from that of the family residence." 2 Wood, V. C., in Forbes v. Forbes, Kay, 341. He said: "The effect of the residence of the wife being after all but evidence of intention may be rebutted by evidence of a stronger character. If, as in Sir George Warrender's case, the husband were living apart from the wife, if, perhaps, some particular state of health required the wife to reside in a warmer climate not agreeable to her husband, or the like, so that he was obliged to visit his wife away from home, he might still be domiciled at a residence of his own apart from her." 8 Burnham v. Rangeley, supra; Blair v. Western Female Seminary, supra; Parsons v. Bangor, 61 Me. 457; Cambridge v. Charlestown, 13 Mass. 501; Reed v. Ketch, 1 Phila. 105; Wells v. People, 44 Ill. 40; Swaney v. Hutchins, 13 Neb. 266; Johnson v. Turner, 29 Ark. 280; Republic v. Young, Dallam, 464 ; Russell v. Randolph, 11 Tex. 460; Lacey v. Clements, 36 id. 661. See, contra, State v. Hallett, 8 Ala. 159; Talmadge's Adm'r v. Talmadge, 66 id. 199, and Brown v. Boulden, 18 Tex. 431; and see supra, § 177, note 2. 1 L. R. 17 Eq. Cas. 78. educating his children. Subsequently, his wife having died, he went to England, and purchased a leasehold house in London, in which he continued to reside until his death. His daughter married an Englishman and settled in London. Testator apprenticed his son to a London merchant, and agreed to purchase for him a share in said merchant's business. While residing in France and in England he made several visits to Canada, and there made a will in Canadian form, in which he described himself as of Montreal, and even, during one of his visits there, declared his intention to return permanently to Canada. Vice-Chancellor Bacon held his domicil to be English, and in so doing relied strongly upon the settlement of testator's children in England. He said: "He takes a house there; he settles his children there. The marriage of his daughter and the apprenticeship of his son, in the first instance, and the subsequent buying of a partnership for him, are as serious events in the course of a man's life as can well be considered with reference to his domicil." In Haldane v. Eckford,2 James, V. C., laid great stress upon the presence of the testator's grandchildren, to whom he was greatly attached, with him in Jersey, where he had resided for a number of years, and where he desired one of them to reside permanently, as evidence of the testator's own intention of permanent residence there. In Hodgson v. De Beauchesne,3 Dr. Lushington, speaking for the Privy Council, in the case of an English officer residing with his wife and child in France, considered the strong attachment of the deceased to his relatives and friends in England, evidenced by his frequent visits to them, as a proof of his intention to retain his English domicil of origin. - § 407. National Character and Religion of Wife, Form of Marriage Ceremony, etc. - The national character of the wife, the performance of the marriage ceremony in accordance with the rites of her religion and the laws of her country, together with residence of husband and wife in that country, have been relied upon as some evidence of the domicil of the husband in some cases. In Drevon v. Drevon, a Frenchman went 2 L. R. 8 Eq. Cas. 631. 1 34 L. J. Ch. 129. to England and there married an English woman according to English rites. Their children, although educated in France, were baptized according to English forms. Kindersley, V. C., held his domicil to be English, mainly upon other evidence; remarking, however, upon this subject: "I do not mean to say that that at all constitutes an Englishman, but it is a circumstance to be taken in connection with other circumstances. Now, of course it would be said, and very fairly said, that if an English woman marries a Frenchman, or if an Englishman marries a French woman, that it does not change his domicil; nor does any one fact change his domicil per se, but it is one of a number of facts which must not be left out of consideration altogether." In Doucet v. Geoghegan, the facts of which have already been cited at large, a French Catholic married in England successively two Protestant women, and allowed his children to be brought up in the Protestant religion; and in holding his domicil to be English, James, L. J., said: "I wish to add that I am disposed to think that when the testator entered the English Church and declared that he knew of no impediment to his lawful marriage, he must be taken to have made a solemn declaration that he had an English domicil." In Stanley v. Bernes,3 Sir John Nicholl seems to have attached some importance to the fact that the testator, an Irishman by birth, married in Portugal (where he resided before and for many years after his marriage) a Portuguese lady, according to the Roman Catholic forms, and in order to do so, embraced the Roman Catholic religion. § 408. Relation of Place of Marriage and Residence of Wife to quasi-National Domicil. The principle that marriage in a country to a woman domiciled there is evidence as to the domicil of the husband, applies to some extent also to cases of quasi-national domicil. Thus, in Cockrell v. Cockrell,1 where an officer of the Royal Navy, on half pay, went to India and engaged in mercantile business, married there, had children, and continued in business there for ten years, until his 2 L. R. 9 Ch. D. 441. 33 Hagg. Eccl. 373. 12 Jur. (N. s.) 727. See also Rurgundus, Ad Consuet. Fland. Tract. 2, no. 34. death, Kindersley, V. C., in holding his domicil to be AngloIndian, considered his marriage in India, and his continued residence there, strong evidence that he was domiciled there. But the weight to be given to this species of evidence depends upon the other facts in the case, and may, according to circumstances, be of much or little importance.2 We have already § 409. Betrothal as Evidence of Domicil. seen that betrothal does not, ipso facto, change the domicil of the woman betrothed. But if a woman domiciled in one country comes into another, and after residing there for some time becomes betrothed to one whose domicil is in the latter country, shall not this fact have weight in determining her animus manendi or animus revertendi? This question was somewhat considered in the Scotch case of Arnott v. Groom.1 The facts were that a lady, whose domicil of origin was AngloIndian, and who, after the death of her father in India, was brought at a tender age by her mother to Scotland, and was kept there till the expiration of the age of pupillarity (after which time, according to the Scotch law, she might change her domicil at pleasure), subsequently went with her mother 2 See (e. g.) Munro v. Munro, 7 Cl. & Fin. 842; Aikman v. Aikman, 3 Macq. H. L. Cas. 854; Hodgson v. De Beauchesne, 12 Moore P. C. C. 285; Douglas v. Douglas, L. R. 12 Eq. Cas. 617; Wallace's Case, Robertson, Pers. Suc. p. 201. In the latter case the Lord Ordinary (Cringletie) said: "The Lord Ordinary regrets that the parties have thought it necessary to detail the circumstances of Capt. Wallace's marriage with Miss Oliver in England, and the terms of his contract of marriage with that lady, as, to the Lord Ordinary, they appear to have not the least bearing on the cause. A man, by marrying in England an English woman, does not thereby become domiciled there; nor is it necessary that he should reside a day there for that purpose; far less does he make his children domiciled there by the mere act of marrying in England. The lady must reside in a certain parish for a specified time, to enable her to be married in the church of it, and an oath must be made that such is her residence and domicil; otherwise she requires a special license to be married. Of this the Lord Ordinary can inform the parties, for he knows it personally; he married a lady born under English law, and who had resided all her life in and near London ; he had to make oath that she had lived in the parish of Acton for a certain time, and he entered into a contract of marriage in the English form; but that had no more effect in fixing his domicil than the winds of heaven. Captain Wallace, having been a Scotchman in the army, did not acquire any domicil by marrying there, but returned to Edinburgh, where he sold out of the army, lived here for some time, and died here. There can therefore be no doubt that he died here domiciled as a Scotchman." 19 D. (Sc. Sess. Cas. 2d ser. 1846) 142. See supra, § 211. |