Kirkland v. Inhabitants of Whately, 86 Mass. 462

Kirkland v. Inhabitants of Whately

86 Mass. 462 | Mass. | 1862

Bigelow, C. J.

The single question in this case is, whether the agreed facts show that the domicil of origin of the minor had been changed, so that at the time of the assessment of the tax in controversy, he had his legal residence in Whately. Like most cases involving the issue of domicil, the solution of the question is not entirely free from difficulty. But on careful consideration we are of opinion that the domicil of origin had been lost, and a new one gained in the town of Whately. It is admitted that for two consecutive years the minor with the consent of his guardian had lived exclusively in that town. All the usual outward indicia by which the residence of a person is determined pointed solely to Whately as the place where he resided and had his home. This, then, is one essential element of domicil. The other is the intent with which he there lived; for the fact and intent must concur, in order to establish a legal domicil. In this case, as' the domicil of a minor under guardianship is at issue, the intent of the guardian is to be regarded. So far as the facts agreed indicate any intent on his part having reference to the domicil of origin of his ward at Northampton, it appears that, when he went to Whately and ever since, the guardian has had no definite intention to cause him to return to Northampton to reside. It appears, then, that the ward had for two years ceased in fact to reside at Northampton, and that when he left there and during all the subsequent time, there has been no fixed intention in the mind of the guardian that he should return thither to live. It follows necessarily that neither the fact nor the intent concurred in fixing that place as his domicil. On the contrary, the ward having ceased to live there, and his guardian having no fixed intent that he should return to that place to reside, it would seem very clear that the domicil of origin was abandoned. We know of no case, in which a domicil has been held to continue, where the fact of actual residence and intent to return are both wanting. But it is urged that the rule of law is that a domicil of origin must continue till a new one is acquired, because every person must have a domicil somewhere. This is undoubtedly true. And we are of opinion that the ward acquired a new *465home in Whately. As has been already said, the fact of his actual residence there is indisputable. It is also equally clear that the guardian intended, so far as he had an intent on the subject, that he should there remain until he formed a definite purpose to remove him elsewhere. There was no intent definitely formed that he should return to Northampton, or go to any other place than Whately. He went to live there with an intent on the part of his guardian that he should remain until he formed an intent to remove him. The ward was then in fact living in Whately with an intent that he should remain for an indefinite period, and until a new intention existed to procure a home for him in another town. So far as any definite intent existed in regard to his domicil, it established it at Whately; all else was indefinite and unformed. Holmes v. Greene, 7 Gray, 299. Judgment for the defendants.