75 F. 176 | U.S. Circuit Court for the District of West Virginia | 1896
This is a suit in equity, instituted by T. W. Chambers and wife, alleging that they are residents and citizens of the state of Missouri, against Burt Prince, executor of Edwin Prince, deceased, a citizen of the state of West Virginia. The question at -issue is whether the domicile of the plaintiff in this base, at the institution of this suit, was in Missouri or in West Virginia. The bill was filed on the 28th day of- October, 1895, and the sübpcena in chancery was issued returnable to December rales, 1895. Much evidence has been taken in regard to the question whether the plaintiff was at the time of the institution of this suit a resident of Missouri or West Virginia. The. facts testified to by the witnesses on the opposing sides have somewhat the appearance of being conflicting; but an analysis of the evidence clearly shows, to my mind, that they are not necessarily conflicting, and are easily reconciled with each other. The question whether a party moving from one -staté tó another has acquired a legal residence in the state tó which he has removed has been passed upon in many instances, and, so far as I am able to judge from the adjudications, it is mostly a question of intention with the party. The evidence discloses that the plaintiff -had resided in Pacific, Mo., for a number of years, and was engaged in business there until he formed the intention of going to West Virginia, with a view of intermarrying with the lady tó whom he was afterwards married. • Pacific was his domicile, and by reason of his being domiciled there he was not only a
As to the question of intention, we must strongly rely upon the declarations of the party, though they are not necessarily conclusive, because those declarations may be met and opposed by acts of the party that would control them. This principle of law seems to be well settled by both the state and federal authorities. Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N. E. 232; Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289; Viles v. City of Waltham, 157 Mass. 542, 32 N. E. 901; White v. Tennant, 31 W. Va. 790, 8 S. E. 596. In this connection it is to be noted that there is not only an obvious but a wide distinction between domicile and residence, which is recognized by all the authorities that I have examined. Domicile is a residence accompanied with proof, either positive or presumptive, of the intention of the party to remain at his place of abode for an unlimited time. It will be observed that domicile consists of two things, which must concur, — -residence and intention to remain. Gilman v. Gilman, 52 Me. 165; Gravillon v. Richards’ Ex’r, 13 La. 293; Hairston v. Hairston, 27 Miss. 704; Hart v. Lindsey, 17 N. H. 235. A party may he a resident of a place, and yet not domiciled there, for, while he is resident there, still if he does not intend to make that his permanent place of abode, but has always the “animo revertendi,” there can be no doubt that the mere fact of his residing for the time being in a place does not establish a domicile at the place of residence. A man always retains his domicile if he leaves it “animo revertendi.” Long v. Ryan, 30 Grat. 718; Pilson v. Bushong, 29 Grat. 240.
Having settled the questions of law which govern and control the question arising upon the facts in this case, I will now discuss the evidence relied upon by both parties in support of their respective positions. The evidence of the plaintiff himself states in unequivocal terms that at no time up to the date of the institution of this suit was it his intention to make the state of West Virginia his place of permanent abode, but, on the contrary, when asked by
The only other significant fact connected with the case is the time that the plaintiffs have remained in West Virginia. This is accounted for — First, by the fact that the executor had 12 months in which to settle up the estate after the death of the first husband of Mrs. Chambers; second, that there had arisen a difference between the executor and the plaintiffs to this action, as to what they were entitled to. Negotiations had been pending with a view to adjust and settle those differences, which had failed; and upon the failure of those negotiations this suit was instituted with a view to settling up that estate. Looking at this case, which involves the questions of fact as to what was the “animus” of this plaintiff, I must pass upon them as a jury would be expected to pass upon questions of fact. Justice Swain, in ruling upon this subject, in the case of Mitchell v. U. S., 21 Wall. 350, uses the following language, which I adopt as the law in this case:
“A domicile, unless clianged, is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged, the burden of proving it rests upon the person malting the allegation. To constitute a new domicile, two things are indispensable: First,’ residence in the new locality; second,' the intention to remain there. The change cannot be made except ‘facto et animo.’ Both are alike necessary. Either, without the other, is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until a new one is acquired, the old one remains. These principles are axiomatic.”
Applying this principle of law to this case, I conclude that the weight of evidence is not with the defendant, but with the plaintiffs in this action, as to the question of domicile. Independent of the circumstances in relation to the assessment of the plaintiff for taxes, the declarations of his wife, and the registration of his name, there is no evidence, beyond the fact that he has remained in the county upward of a year, that tends to show that he ever entertained the idea at any time of abandoning his home in Missouri and establishing his residence in West Virginia. On the contrary, his evidence, as well as the statements of those who had frequent conversations with him prior to the institution of this suit, all tend to show that he had never changed his intention of returning to Missouri. I reach the conclusion, therefore, that the plea in abatement cannot be sustained, and that tire jurisdiction of the court must be maintained.