Plaintiff, the former wife of G. O. Paudler, from whom she was divorced by an Arkansas decree, brought this action in the United States District Court for the Northern District of Texas against her erstwhile spouse and other citizens of the State of Texas to cancel certain conveyances of real and personal property, recover her separate *902 estate, partition the community property, and secure an accounting from defendant Paudler. Federal court jurisdiction was based upon diversity of citizenship and requisite amount in controversy, it being specifically alleged that plaintiff was a citizen of the State of Arkansas and that defendants were citizens of the State of Texas. Defendants’ motion to dismiss the complaint for want of diversity was sustained and the action dismissed.
The sole question presented by this appeal is whether the plаintiff, Lyda M. Paudler, was a citizen of the State of Arkansas on July 28, 1949, when this suit was commenced.
The evidence, so far as it need bе stated, shows that plaintiff was married in Crosby County, Texas, on February 9, 1921, and there she and defendant Paudler lived until about September 14, 1948, at which time plaintiff left her home in Crosbyton, with the intention of becoming a resident and citizen of the State of Arkansas. Prior tо leaving, plaintiff had informed her former husband of her intentions but she did not tell him when or where she was going because he was very аbusive and had threatened her. with acts of reprisal and she was afraid of him. From Crosbyton plaintiff travelled by automobile in Cоmpany with a Mr. Brixey, who drove her to Dickens, Texas. From Dickens plaintiff travelled by bus to Harrison, Arkansas. She remained in Harrison from the latter part-of September 1948 until the middle of April 1949 and during this period she lived in an apartment, working for Brixey as a housekeeper. In April she moved to Little Rock,| Pulaski County, Arkansas and accepted employment as a practical nurse for an elderly lady. In the same month she filed a suit for divorce in the Pulaski Chancery Court, alleging that she was a resident of and dоmiciled in the State of Arkansas. This suit came on for hearing and the court found that it was well and sufficiently advised as to all matters of fact and law arising therein, and on June 1, 1949 entered a decree of divorce. Up until the time when plaintiff testified in this cause, it affirmatively appears that she has continuously resided in the State of Arkansas, save for two short visits to Texas, wherе she was summoned to attend her sick father. Plaintiff testified that she selected her new domicile in the State of Arkansas not оnly because she wanted to live there but because she was afraid of her husband as long as she remained in the State of Texas; that there she lived and there she intends to reside. It is true that this record reveals that plaintiff owns no property in Arkаnsas and has paid no taxes but this testimony must be accepted in the light of the plausible explanation that her husband was in charge of the community property and having no funds with which to purchase property, plaintiff consequently had no prоperty on which to pay taxes. It further appears that she paid no poll tax and did not vote in Arkansas for the goоd and sufficient reason that she arrived there too late to vote in the year 1948.
The Fourteenth Amendment of the Federal Constitution provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens оf the United States and of the State wherein they reside.” We take it to be well established 1 that plaintiff was at liberty to instantly transfer her citizenship from Texas to Arkansas and this she might do without necessity and simply from choice. She had a right to select her dоmicile for any reason that seemed sufficient to her. To bring about a change of citizenship two things are indispensablе : First, there must be residence in the new domicile; and, second, the intention to remain there permanently or indefinitely, and both physical presence and animus manendi in the new location must concur. If plaintiff’s new citizenship was really acquired, her right to suе in the Federal courts was a legitimate and legal *903 consequence, not to be impeached by her motive for removal.
In the instant case, it seems to us that although there is some evidence from which an inference may be drawn to support the finding of the trial court that Lyda M. Paudler was not a citizen of the State of Arkansas at the time this suit was filed, our review of the entire evidence leaves us with the “definite and firm conviction” that a mistаke has been made. Plaintiff testified positively and without contradiction that she left her former husband because he had thrеatened her and she was afraid of him as long as she remained in the State of Texas. And though it was within their power and to their interests to do so, defendants offered no testimony to refute this evidence. Under the circumstances their silence “not оnly strengthens the probative force of the affirmative proof but of itself is clothed with a certain probative forсe.” Sullivan v. Fant, Tex.Civ.App.,
For the reasons stated, the judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion.