adopted a rule apparently different from either of the foregoing; namely, that the domicil is in such a case to be determined by the acts, declarations, and intentions" of the person, showing in which district he elects to fix and maintain his residence.

CHAPTER XXV.

CRITERIA OF DOMICIL (continued),— PLACE OF DEATH AND BURIAL.

§ 426. Place of Death. The place of a man's death is of little, if any, practical importance in determining his domicil.1 It certainly has no significance whatever in case any of the prominent facts of his life are known. Theoretically, no doubt, if nothing were known about him except the fact that he died in a particular place, he would be assumed to have been domiciled there, upon the principle that the place where a person is found is prima facie his domicil; but it is scarcely possible to conceive of a judicial inquiry concerning domicil in which no other fact than the place of death is brought forward. The result of every such inquiry must almost necessarily be either entire failure to fix the domicil of the deceased, or the fixing of it by some of the facts of his life or of the lives of his parents.

It has indeed been said that the place of death is prima facie the domicil, and the language of President Rush has sometimes been quoted upon this subject. He said: "A man is prima facie domiciled at the place where he is resident at the time of his death; and it is incumbent on those who deny it, to repel this presumption of law, which may be done in several ways. It may be shown that the intestate was there as a traveller, or on some particular business, or on a visit, or for the sake of health; any of which circumstances will remove the presumption that he was domiciled at the place of his death." The learned judge might, however, have gone a step farther, and have said that such presumption would be

1 Ommanney v. Bingham, Robertson, Pers. Suc. Appendix, p. 468; Johnstone v. Beattie, 10 Cl. & Fin. 42, 139, per Lord Campbell; Somerville v. Somerville, 5 Ves. Jr. 750; Craigie v. Lewin, 3 Curteis, 435; Donaldson v. McClure, 20 D. (Sc. Sess. Cas. 2d ser. 1857) 307, 315, per

McNeil, Lord Pres.; Harvard College v. Gore, 5 Pick. 370.

2 See supra, § 375.

8 Guier v. O'Daniel, 3 Binn. 349, note; Kellar v. Baird, 5 Heisk. 39; Laneuville v. Anderson, 2 Spinks, 41. 4 Guier v. O'Daniel, supra.

removed by merely showing a domicil formerly existing somewhere else; the presumption of continuance applying and shifting the burden of proof upon those who allege a change.5

5 See supra, §§ 115, 151. It may be added that the use by the learned judge of the phrase, where he is resident," seems to indicate that he had in his mind the case in which something more is known of the deceased person than the mere fact of his death in a particular place.

In Somerville v. Somerville, Lord Alvanley, speaking particularly with reference to the ascertainment of domicil for purposes of succession in cases where the person has had two residences, observed: "There is not a single dictum from which it can be supposed that the place of the death, in such a case as that, shall make any difference. Many cases are ate return was indispensably requisite ; and, lastly, the object he had in view, in this journey to Scotland, was definable, and is defined. He was there, therefore, without idea or intention to remain; and, consequently, his last visit to Scotland, and unexpected death, can have no influence on the point of his domicil." In Donaldson v. MeClure, Lord President McNeil remarked: Actual residence at a place at the time of death "is a fact to be taken into consideration in such cases, but is not of itself a very strong fact. It depends for its strength upon the circumstances that surround it. It may derive strength from the circumstances that surround it; but that is a strength which belongs to the circumstance more than to the mere fact that Laurel Mount was the place where she happened to die. In every case of double residence, when the party resides one period of the year at one place, and another period of the year at another place, the mere fact of dying at one of the places will not fix the domicil of the party to be there." In Laneuville v. Anderson, 2 Spinks, 41, Sir John Dodson said: "The place of death, it was said, is to be considered as decisive, or nearly decisive, on the point; but that, I think, has been ruled quite otherwise. Prima facie it certainly is; but it may be repelled, like any other circumstances. The presumption arising from the place of death is not very strong of itself. It is only in a case of doubtful domicil that that would have effect."

Supra. In Ommanney v. Bingham, supra, Lord Loughborough, in pronouncing judgment, said: "The first circumstance is, that he died in Scotland, where some of his children were boarded. This, however, of some of the children being boarded in Scotland, is not mentioned as the ratio decidendi, but is thrown in along with the circumstance of his death. On that circumstance, however, no stress can be laid, for nothing is more clear than that residence, purely temporary, has no effect whatever in the creation of a domicil. Precisely of this kind was the residence of Sir Charles Douglas, in Scotland, at the period of his death. He had been appointed to the command on a foreign station, and went down to Scotland to take leave of such of his children as happened to be there, with all the hurry which was the necessary consequence of a speedy and immediate return. When he set out for Scotland, he was actually appointed. He had, therefore, so very short a time to continue, that it is impossible to say or imagine that he had the remotest thought of settling or remaining in Scotland at the time when, unfortunately, his life was closed. The time he had to spend in Scotland, at that period, was limited; his stay was circumscribed; an immedi

cited in Denizart to show that the death can have no effect; and not one that that circumstance decides between two domicils. The question in those cases was, which of the two domicils was to regulate the succession; and without any regard to the place where he died."

The writer may add, that so far as he is aware the place of death has been relied upon in no British or American case as in any degree contributing to determine the domicil.9

§ 427. Place of Burial. The place of burial of a person is of no consequence in the ascertainment of his domicil, unless it has been selected by himself; and then its value depends much upon circumstances. The mere desire or direction to be buried in a particular place has not been given much weight in cases in which the question has arisen.2 Said Lewis, J., in a Pennsylvania case: 3 "His desire to be buried in his native

Here using "domicil" really in the sense of "residence." See supra, § 94.

7 Verb. Dom. nos. 16 and 17, and held, in Van Leeuwen's case (Holpassim. landsche Consultatien, vol. v. p. 309; Henry, For. Law, p. 200 et seq.), that the burial at Utrecht of one whose domicil of origin was there, but who had resided ten years at Amsterdam for the purpose of trade, was evidence that he had retained his domicil of origin at the time of his death. Henry, in a note, remarks that the burial at Utrecht was "most probably by his direction, but this does not appear in the case."

Cochin, in the case of the Marquis de Saint-Pater, laid some stress upon the fact of the deceased person dying at the place of his origin, as evidence that his original domicil had never been changed, but only in connection with the fact that he had passed the last days of his life there (he had resided in Maine during the entire eighteen months preceding his death). He said: "Secondement, le Marquis de SaintPater est mort dans cette même province du Maine, après y avoir passé les derniers tems de sa vie. Si, dans l'intervalle, il y avoit des preuves d'un domicile fixé à Paris, la circonstance de l'habitation dans les derniers tems, et de la mort dans le domicile d'origine, suffiroit pour prouver un esprit de retour à ce domicile, et pour effacer les preuves contraires qui s'élèveroient dans les tems intermédiares. La nature éclateroit dans ses dernières démarches; et ses opérations sont si vives que la loi ne balanceroit pas un moment à en reconnoître toute l'autorité."

2 Platt v. Attorney-General, L. R. 3 App. Cas. 336; Attorney-General v. De Wahlstatt, 3 Hurl. & Colt. 374; Hood's Estate, 21 Pa. St. 106; and see infra, Hodgson v. De Beauchesne, 12 Moore P. C. C. 285, and Lord Campbell, in Johnstone v. Beattie, 10 Cl. & Fin. 42, 139.

8 Hood's Estate, supra. Lord Campbell, in Johnstone v. Beattie (supra), said: "If, instead of remaining in Albion Street, Hyde Park, she had gone for her health to the island of Madeira, where her husband died, and had written letters stating that she should die there, and had given directions that she should be buried there, although she had died and been buried there, unquestionably her Scotch domicil never

1 The Dutch jurist De Witt, however, would have been superseded."

country, and the execution of that wish by his executor after his death in France, whither he had gone for medical aid, cannot change the state of the case as it actually existed in his lifetime. A residence is established by acts and intentions while the body and soul are united. When they are separated, the question of domicil is at an end. No disposition of the inanimate corpse can affect it. Graves and sepulchres are resting-places for the dead, not dwelling-houses for the living."

In Bremer v. Freeman, the Privy Council considered the declarations of an English woman who had resided fifteen years in France, that "she would never return to England, and that she wished to be buried near her sister in the Cemetery Père la Chaise," as, among others, strong circumstances to show her acquisition of a French domicil. But what weight would have been given to her desire to be buried in France if it had not been coupled with the declaration of her intention never to return to England, or with the other circumstances relied upon as strong in the case, does not appear. In the very similar case of Attorney-General v. De Wahlstatt, a contrary view was taken by the Court of Exchequer.

§ 428. Purchase of Burial-place. Haldane v. Eckford. -The purchase by a person of a burial-place for himself and family has, under some circumstances, been considered strong evidence of domicil.1 In Haldane v. Eckford,2 a Scotchman who had spent thirty-three years in India in the Company's service, subsequently, after a brief residence in France, settled with his family in the island of Jersey, where he resided for twenty-five years. He purchased ground and built a vault in a burial-ground in Jersey, and removed to it the bodies of two of his children who had been buried in