Bangs v. Inhabitants of Brewster

111 Mass. 382 | Mass. | 1873

Morton, J.

The question at the trial was whether the plain tiff had on May 1, 1869, acquired a domicil in Orleans. There is no doubt as to the rule of law that the plaintiff’s domicil of origin in Brewster adhered to him until he had acquired a domi cil somewhere else, and that in order to effect a change of domicil he must not only have had the intent to make his home in some other town, but he must in fact have made his home there. The intent and the act must concur, and until the intent was consummated by an actual removal of his home, no change of domicil was effected. Whitney v. Sherborn, 12 Allen, 111. Carnoe v. Freetown, 9 Gray, 357.

The question is as to the application of this rule to the facts of this case. The plaintiff was a shipmaster, most of whose time was spent at sea. He went to sea in November 1867, taking his wife with him, and in December 1868 he sent his wife to Orleans, and she arrived there in February 1869. He did not arrive at Orleans until July 1869, so that he was not personally present in Orleans on May 1,1869. The special findings of the jury settle conclusively that when he went to sea in November 1867 he had the definite intent to make Orleans his home, and that in December 1868 he sent his wife to Orleans in pursuance of that intent. We think the jury were justified in finding that his domicil was in Orleans on the first of May.

By sending his wife to Orleans with the intent to make it Ms home, he thereby changed his domicil. The fact of removal and the intent concurred. Although he was not personally present, he established his home there from the time of his wife’s arrival. We think the learned judge who presided at the trial rightly refused to rule, as requested, that the plaintiff had not shown such a personal presence in Orleans as the law required in order to effect a change of domicil, and that the instructions given upon this subject, when applied to the facts of the case, were correct.

The defendants object that the instruction that the jury should find for the plaintiff if they answered either of the questions submitted to them in the affirmative, was erroneous, upon the ground that it required the jury to find a change of domicil from proofi of an intention to remove, without an actual removal. We do-riot deem it necessary to consider whether this objection is founded! upon a just construction of the bill of exceptions taken as a whole-,, because the finding of the jury upon the second question renders the first immaterial. This finding settles that the plaintiff sent his wife to Orleans in pursuance of the intent then entertained to make it his home; and the question as to his intent at an earlier date, and its effect, becomes of no consequence to the rights of the parties in this suit. Exceptions overruled.