86 S.W. 520
Ky. Ct. App.
1905

Opinion by

Judge Barker.

Affirming.

This rеcord involves a controversy between appellant and appellee as guardian, of Virgil Thomas for the possession of his personal estate. The father of the infant, Sam O. Thomas, 'died in 1888, domi*282oiled in Warren county, Ky., leaving a wife, Mrs. Fannie Thomas, and the infant, Virgil Thomas, surviving him. His only estatе appears to have been a policy of insurance on his life, which the company for some reason refused to pay, and which thereupon became a subject of litigation. Pending this controversy a guardian was appointed for the infant, and before the policy was finally collected ‍‌​​‌​​​‌​​‌​‌‌‌‌‌‌‌‌​​‌​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​​‌​‍the widow, with her infapt son, then about three years old, moved to Nashvillе, Tenn., and became a resident there. When the policy was paid, the portion of the infant, amounting to about $500, was turned over to his guardian appointed by order of the Warren county court, and by successive devolution from one guardian to another it has reached the hands оf the appellant, who now holds it.

After moving in 1890 to Nashville, Mrs. Fannie Thomas died domiciled there in 1893, on her deathbed giving her son, Virgil, to her mother, Mrs. Annie Law, with whom he has since lived. In 1902, when he had reached the аge of 14 years, Virgil Thomas, by virtue of the laws of Tennessee, chose the appellee •аs his guardian, and this corporation was duly appointed and qualified as such. Afterwards it instituted these рroceedings, under sec. 2043, Ky. Stats., 1903, to recover from appellant the personal estаte belonging to the infant. In the circuit court the chancellor rendered a judgment in accоrdance with the prayer of the petition, of which appellant now complains.

It is cоnceded in.the argument by appellant, as we understand it, that, if the domicile of the infant is in Nashville, thе appointment of appellee is valid, and ‍‌​​‌​​​‌​​‌​‌‌‌‌‌‌‌‌​​‌​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​​‌​‍the judgment of the chancellor must be affirmеd, and by the appellee that, if his domicile is in Warren county, the order of appointment- of appellee, for *283want of jurisdiction, is void, and the judgment must he reversed.

We have no doubt that when Mrs. Thomas moved to Nashville, in 1890, it was with the intention of making it her permanent residence, and that she bеcame legally - domiciled there. The question of law then arises, did the ‍‌​​‌​​​‌​​‌​‌‌‌‌‌‌‌‌​​‌​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​​‌​‍domicile of the mother become the domicile of her infant son? This must be answered in the affirmative. The domicile of the father at his death is the domicile of his infant children. (City of Louisville v. Sherley, 80 Ky., 71, 3 Ky. Law Rep., 566; Munday v. Baldwin, 79 Ky., 121, 1 Ky. Law Rep., 420; Mills’ Guardian v. Hopkinsville, 11 S. W., 776, 11 Ky. Law Rep., 166.) On the death of the father, the mother, as long as she remains unmarried, is the natural guardian of the infant children, and her domicle bеcomes theirs. She, in the matter of controlling the domicile, taking the place of the father. (School Directors v. James, 37 Am. Dec., 525; Allen, Adm’r v. Thomasson, 54 Am. Dec., 55; A. & E. Encyclopaedia of Law (2d Ed.), vol. 10, p. 30; Cyc., vol. 14, p. 844; Schouler’s Dоmestic Relations, sec. 230.) The reasoning of the court in the case of Munday v. Baldwin, sought to be аpplied by appellant to the case at bar, is in no wise inconsistent with the principle that the domicile of the ‍‌​​‌​​​‌​​‌​‌‌‌‌‌‌‌‌​​‌​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​​‌​‍infant after the death of the father follows the mother. In the case сited an aunt of the infant orphan took him to her home out of this State, and the court held that thе aunt had no power to change the domicile of the infant, and it therefore remained whеre his parents resided at their- death.

Nor does it follow, as appellant contends, that bеcause sec. 2032, Ky. St., 1903, gives the custody of the ward’s person as well as his estate to the guardian, therefore the latter has the power to control *284the domicile of the infant. In Louisville v. Sherley it was held that the residence of the ward ’was not necessarily that of the guardian. And in School Directors v. James, Chief Justice Gibson said: “When an infant has no parent, the law remits him to his domicile of ‍‌​​‌​​​‌​​‌​‌‌‌‌‌‌‌‌​​‌​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​​‌​‍оrigin, or to the last domicile of his surviving parent; and why should this natural and wholesome relation be disturbed by thе coming in of a guardian, when a change .in the infant’s domicile is not necessary to the accomplishment of any purpose of the guardianship 1 The appointment of a new residence may be necessary for the purposes of education or health, but such a residence, being essentially temporary, was held in Cutts v. Haskins, 9 Mass., 543, insufficient to constitute a domicile.* * * A guardian has, indеed, power over his ward’s person and residence; but it follows .not that the ward’s domicile must attend that of his guardian, for there is nothing in a state of pupilage which requires it to do so.”

We think that the evidence clearly shows the mother of the infant, after the death of her husband, permanently rеmoved from Bowling Green to Nashville, and became domiciled in the latter city; that she never afterwards changed this domicile, and, under the principle of law announced above, the domicile of her infant son, Yirgil Thomas, in 1890, was in Nashville, Tenn., where it now is.

It, therefore, follows that the judgment of the chancellor must be affirmed, and it is so ordered.