35 Conn. 351 | Conn. | 1868
The principal question in this case is in regard to the domicil of Mrs. Lewin at the time of her death. She died in the state of New York, and the administrator of her estate claims that her domicil at the time was in Connecticut ; while the administrator of the estate of her husband claims that it was in the state of New York.
It appears by the finding of the court that her husband was a native of the state of New York; that he married Mrs. Lewin while temporarily residing in Connecticut; that immediately after their marriage they went to the state of Missouri, and resided there till the spring of 1862, when they returned to Connecticut, and after residing at various places in the state, became permanently located in the town of Branford. While their domicil continued there, Mrs. Lewin received a bequest that had been left her by her brother. Sometime in the spring of 1866 Mr. Lewin and his wife left Branford with the intent to abandon his residence there, and went to Geneseo in the state of New York, where he remained till the death of his wife, which occurred in the month of July of the same year.
The character of Mr. Lewin’s residence at Geneseo is thus described in the report of the committee. “He did not go to Geneseo with the intent to adopt that place as a place of permanent residence. He and his wife, being in feeble health, went to Geneseo for the purpose of spending the summer there in the house of his brother-in-law, in the hope that the health of himself and wife might be benefited by the change of air, and by the use of the water of certain mineral springs near Geneseo. Prom the time he left Branford until the death of his wife he had no definite intentions in regard to the selection of any place as the place of his future l’esidence. So far as he had any intention on the subject it was, during the whole period of time, an intention conditional and uncertain, whereby all decision in his mind upon the question was
In the month of August of the same year he left Geneseo and returned to Connecticut, and not long afterwards became permanently settled in the town of Windham. These facts render it apparently clear that Mr. Lewin was not domiciled in the state of New York at the time his wife died.
But it is claimed that, inasmuch as he was a native of the state of New York, and inasmuch as he left Branford with no intention of returning to that place to reside, aud went to the state of New York, and remained there, in fact, for a time, no matter what the character of his abiding may have been, he became domiciled there, on the principle that a native domicil easily reverts. Would it be claimed that if Mr. Lewin had left Branford with the intent to take up his residence in the state of Ohio, and on his way sojourned a few days in the state of New York, that would be sufficient ? And what real difference is there between that case and the present ? In both cases Mr. Lewin had no intention of permanently remaining in the state of New York. All the difference there is consists in the fact, that in one case his mind is made up in regard to his future residence and in the other it is not. His abiding in both cases is temporary. We said in another case upon the present circuit, that a temporary residence did not change its character by mere lapse of time. Whether it is longer or shorter it is temporary still. But the principle that a native domicil easily reverts applies only to cases where a native citizen of one country goes to reside in a foreign country, and there acquires a domicil by residence without renouncing his original allegiance. In such cases his native domicil reverts as soon as he begins to execute an intention of returning; that is, from the time that he puts himself in motion bona fide to quit the country sine animo revertendi, because the foreign domicil was merely adventitious, and defacto, and prevails only while actual and complete. The Indian Chief, 3 Rob. Adm. R., 17, 24; The Venus, 8 Cranch, 253, 280, 301; The State v. Hallett, 8 Ala., 159;
This principle has reference to a national domicil in its enlarged sense, and grows out of native allegiance or citizenship. It has no application when the question is between a native and acquired domicil, where both are under the same national jurisdiction. It was so held in the case of Monroe v. Douglas, 5 Maddock, 379. In that case the question was between the native domicil of a party in Scotland, and a domicil of residence acquired by the same party in India, and the Vice Chaneelor said he could find no difference in principle between the original domicil of the party and the acquired one in India. See also 1 American Leading Cases, 742.
If this principle does not apply to the case in question, then it follows from this finding that Mr. Lewin had no domicil in the state of New York when his wife died, but his domicil at that time remained in the town of Branford, in accor dance with the maxims that universally prevail in relation to this subject, that every person must have a domicil some where, that he can have but one domicil for one and the same purpose, and that a domicil once acquired continues until another is established. Abington v. North Bridgewater, 23 Pick., 170 ; Thorndike v. City of Boston, 1 Met., 242 ; Grawford v. Wilson, 4 Barb., 504 ; Rue High, Appellant, 2 Doug. (Mich.) 515 ; Somerville v. Lord Somerville, 5 Vesey, 750; Greene v. Greene, 11 Pick., 410; Walker v. Bank of Circleville, 15 Ohio, 288.
It is claimed further, that the bonds in question became the property of Mr. Lewiii by donatio causa mortis. But it is clear that no gift was intended by Mrs. Lewin, as plainly appears by her letter to the officers of the bank, and besides, a gift of this nature must be made in contemplation of the approach of death and must be given to take effect only in case the donor dies. Raymond v. Sellick, 10 Conn., 480. Nothing of this kind appears in the case.
Again, it is claimed that the court of probate for the district of New Haven granted letters of administration on the
We advise the Superior Court that the administrator of the estate of Mrs. Lewin is entitled to the property.
In this opinion the other judges concurred.