87 P. 763 | Or. | 1906
delivered the opinion.
“Domicile,” strictly speaking, is the relation the law creates between an individual and a particular place or country, and each ease is dependent upon its own particular facts. It is not in a legal sense synonymous with “residence.” A person may have more than one residence and more than one home, in the ordinary acceptance of those terms, but he can have only one domicile and the law requires that for the purpose of the succession of his property he be domiciled somewhere. The word “home” is undoubtedly the fundamental idea of domicile, though calling a place “home” as a matter of fact may not be and often is not entitled to much weight: Jacobs, Domicile, § 72. To constitute domicile there must be both the fact of a fixed habitation or abode in a particular place, and an intention to remain there permanently or indefinitely; or, as Mr. Wharton says: “There must be: (1) residence, actual or inchoate; (2) the nonexistence of any intention to make a domicile elsewhere:” Wharton Conflict of Laws, § 21. Domicile,- therefore, is made up of residence and intention. Neither, standing alone, is sufficient for the purpose. Residence is not enough, except as it is co-joined with intent, whieh determines whether its character is permanent or temporary; and clearly a mere intent cannot create a
In Drevon v. Drevon, 34 L. J. (N. S.) Eq. 129, Vice Chancellor Kindersley, who has considered the subject of domicile in a number of eases, says with much force: “For example, the first act generally brought forward, and, of course, which is brought forward and relied upon in this ease, is length of residence. Length of residence has in many cases, both by English and by foreign jurists, been considered a very important ingredient in the question, and, in other cases, it has been considered as of little importance,- that is, as compared with and brought into connection and contact with other circumstances, of which evidence is given in the ease. I think, with regard to that point, the true conclusion is this, not that any one act or any one circumstance is necessarily per se of vast importance and other circumstances of little importance, but it is a question what is the relative importance of the different acts, whether some acts tending one way are of greater weight than those tending the other as to the animus rmmendi or the animus revertendi, or the ■ animus as to changing domicile.” And Lord Chelmsford "says in Moorhouse v. Lord, 10 H. L. C. 272: “In a question of change of domicile the attention must not be too closely confined to the nature and character of the residence by which the new domicile is supposed to have been acquired. It may possibly be of such a description as to show an intention to abandon the former domicile; but that intention must be clearly and unequivocally proved.”
So also in Gilman v. Gilman, 52 Me. 165 (83 Am. Dec. 502), -the court say: “A person may have two places of residence, for purposes of business or-pleasure. But, in regard to the succession of his property, as he must.have a domicile somewhere,
So, in Long v. Ryan, 30 Grat. 718, the court say: “There is, however, a wide distinction between domicile and residence recognized by the most approved authorities everywhere. ‘Domicile’
Other decisions might be referred to to the same effect, but these are sufficient to show the distinction between residence and domicile, and that mere change of residence is hot of itself proof of a change of domicile unless accompanied by an intention, expressed or implied, to abandon the old domicile and acquire a new one. Within the principle of law declared in the decisions, a person may reside for pleasure or health in one place without forfeiting or surrendering his domicile or legal residence in another, if he so intends. It is not residence alone, but it is the intention of the person, expressed or implied from the facts in evidence, conjoined with residence, that determines domicile. Every person sui juris and capable of controlling his personal movements may change his domicile at pleasure, but a change of domicile involves intention as the dominant factor.
The animus or intent is, therefore, as essential to a change of domicile as the fact of residence. To lose a domicile when once acquired, there must be an intention to do so. A mere change of the place of abode, however long continued, is not sufficient, unless the proper animus or intention is present. This intention, it is true, may be inferred from circumstances, and the residence ma} be of such a character and accompanied by such indices of a permanent home that the law will apply to the facts a result contrary to the actual intention of the party. Thus one cannot make a permanent fixed commercial residence with all the surroundings of a permanent home in one place and a domicile in another by a mere mental act. But a residence for mere pleasure or health is not regarded as of any great weight in determining the question of a change of domicile, for, in such ease it is just as likely that the party intends to retain as to abandon his present domicile. The books abound in cases where absences for 30, 30 and even 40. years effect no change of domicile. White v. Brown, 1 Wall. C. C. 217 (Fed. Cas. No. 17,538); Re Domingo Capdevielle, 10 Jur. 1155; Jopp v. Wood, 4 DeG. J. & S. 616; Hodgson v. Beauchesne, 13 P. C. 285; Cruger v. Phelps, 21 Misc. Rep. 252 (47 N. Y. Supp. 61). And Sir John Dodson says in Bremer v. Freeman, 10 Moore, P. C. 306: “A person may live 50 years in a place, and not acquire a domicile, for he may have had all the time an intention to return to his own country.” And Mr. Jacobs says: “Residence of itself, although decisive of the factum necessary for a change of domicile, is decisive of nothing further, and even when long continued, although per se evidence of intention will not supply its place. * * Intention must concur with fact,
The residence of Mr. and Mrs. Reed at Pasadena admittedly was for health and pleasure, and not business. It was, therefore, not of that permanent commercial or business character which will in law ■ constitute a change of domicile regardless of the intention of the parties.. Nor was it of such a character as will overcome the presumption that their former domicile at Portland continued. We must, therefore, look to the evidence to áscertain whether in fact they intended to abandon their Portland domicile and acquire a new one in California, and in doing so it is important to bear in mind their situation at the time of their removal, the causes which prompted it, its purpose and the place to which they removed. Mr. Reed was in failing health and had been compelled to cease active participation in his business affairs. It was necessary, as he thought, and as he was advised by his physicians, to seek a more congenial climate than that of Oregon. For this purpose he visited .California, and after examining several places or localities, finally selected Pasadena, which, as one of the witnesses testified, is “a health resort.” A large part of its population “come there and ¿way again; two-thirds of it was temporary.” “The temporary class is composed largely of people who come in search of health.” To this character of a location Mr. and Mrs! Reed moved, because its climatic conditions and general suroundings would, it was thought, conduce to their personal comfort and the improvement of Mr. Reed’s health. They did not make any investments in Pasadena except such as seemed to them necessary for their comfort and pleasure. Mr. Reed did not dispose- of his Portland property, or make any change- in his business affairs. He retained his office and bank account in Portland, and his entire conduct negatives an intention to abandon his Portland domicile or to acquire another. Mr. Reed’s health did not .improve, and he died in 1895, devising and bequeathing his property to his wife. Mrs. Reed con-
Mr. C. A. Dolph, who was the legal and confidential adviser of Mrs. Reed after the death of her husband, and’ who, perhaps, had a better opportunity to know her real intention than any other witness in the case, testified that he had numerous conversations with Mrs. Reed regarding the place of her permanent residence and that on every occasion when the subject came up she invariably gave it as Portland, and by her instructions she had been so described in the different wills that he had prepared for her; that when he came to prepare the petition for the probate of Mr. Reed’s will in November, 1895, he inquired of Mrs. Reed as to her permanent residence because she was to verify the petition, and he knew Mr. Reed had been away from Portland a good deal for several years prior to his death, and at that time Mrs. Reed told him distinctly that Portland was their permanent residence and that
“They had always claimed Portland as their home, that the matter had been incidentally discussed with relation to the removal or change of residence of Captains Thompson and Ainsworth, Mr. Reed had spoken of that, and stated that their permanent home was in Oregon.”
He further testified that he frequently visited Mrs. Reed at Pasadena professionally at her request, and on several occasions
“ ‘I don’t wish to do that. It is so hard to make people here understand that I do not belong here. My interests, what I have, my affections’ — I would not be sure that she said my home —but that was the significance of it, was in Oregon and not in California.”
He had many conversations with her with regard to the disposition on the part of the people of Pasadena to induce her to aid in public charities and enterprises, and that on more than one occasion she told him that
“They did not understand that she was not interested in those things, not belonging to them, or not belonging there, but in Oregon. She put California, or Pasadena, and Portland, Oregon, in juxtaposition a good many times and principally in urging her objection to having an adviser there, and transferring a portion of her business there, and it came up in regard to her bank account, as to having a bank account or an office there, she always answered that her office was here and her business was here, and her affections were here.”
He also says that she always spoke of Oregon as her home, and so far as her intentions were concerned he never had a suspicion that it was claimed by anybody that Portland was not her permanent home; that every expression of hers to him, whether drawn out for the purpose of obtaining information from a legal standpoint, or in a social way, was to that effect.
Mr. James Patterson, a resident of Pasadena, who became acquainted with and frequently visited the Reeds after their removal to that city, testified that Mr. Reed was regarded as a temporary resident, and that he came to Pasadena fo.r his health; that after Mr. Reed’s death Mrs. Reed frequently referred to Oregon as her home, and that on one occasion he suggested to her that she had lived in Pasadena long enough to become a Californian and she replied: “Oh, no! I will never become a Californian. Oregon is my home. I was raised there and grew up with the country.” Miss Stevens ,who was the maid of Mrs. Reed from January, 1900, to October, 1902, testified that Mrs. Reed always spoke of Portland as her home, and
Mrs. Martin Winch, who was regarded practically as a daughter by Mrs. Reed, and with whom she talked frankly and freely, testified that the Reeds went to California on account of Mr. Reed’s health; that after Mr. Reed’s death she (witness) was with Mrs. Reed practically all the time up to her death except during the summers of 1900 and 1903; that witness always understood that Mrs. Reed’s permanent home was in Portland, and never thought anything else; that Mrs. Reed always kept up her dues in the Ladies’ Relief Society and in the TJnitarian Church of which she remained a member, and when solicited to contribute to Pasadena charities, she would say: “That is not my church. My church is in Portland. I give to my church just as I always did”; that Mrs. Reed loved Carmelita dearly but always spoke of it as Carmelita, and witness never heard her refer to it as home; that witness never heard her in any shape or manner say that Pasadena was her home for the rest of her "life or all the time, but often heard her refer to Portland as her home; that she often talked about California and Oregon people, and witness had frequently heard her say that the people of Pasadena did not seem to understand why she would not take the same interest in their charities and social affairs as she did in Portland, but she said: “That I do not do. Portland is my home. That is where I am interested, and what I want to do I want to do there”; that when people would come to her in Pasadena and solicit contributions she would say: “Why, I have no business here. My business, my office is in Portland and my business agent is there”; and that so far as witness knew Portland is the place she always spoke of as her permanent home. Mr. Martin Winch, a nephew of Mrs. Reed and her confidential agent and business manager, and that of her husband during the latter part of his life, and who, consequently, was
The contestants have the testimony of numerous witnesses as to alleged declarations made by Mrs. Reed concerning her home and some letters written by her to relatives and friends. In many of these letters Mrs. Reed expresses her appreciation of the climate of Pasadena, its flowers and fruits, and in some of them refers to Carmelita as home, but there is nothing in any of thgm to indicate that she used the word “home” in any other sense than as referring to a temporary residence. It is not necessary to cite authorities or enter into an argument to show that the word “home” is very frequently used with reference to a place other than the legal and permanent domicile, but it would be quite natural for Mrs. Reed, who manifestly enjoyed her beautiful residence in Pasadena, to refer to it as her home in a casual conversation and in friendly letters. The oral testimony consists principally of the evidence of interested witnesses who undertake to relate statements alleged to have been made by both Mr. and Mrs. Reed to the effect that they never intended to return to Portland to live; that Pasadena was their home, and that they expected to live there during the remainder of their lives. It is not necessary to prolong the opinion by referring to this evidence in detail. We have read it with care. The declarations, or most of them, are claimed to have been made many years ago, and in the course of casual conversations, or in answer to questions, and are entitled to but little weight. Such testimony is admissible in cases of this character, but it is considered by courts as of the lowest species of evidence, especially when, as in this case, it encounters conflicting declarations. Such expressions or declarations are so much influenced by the circumstances under which and the person to whom they are made, and the state of the temper at the time, that they cannot be safely relied Upon when they conflict with each other, or are inconsistent with the actions and conduct of the parties.
The time, occasion and manner of making the declarations to these witnesses, the fact that such declarations were frequently repeated and always consistent with each other and with the solemn declarations made by her in her several wills and written instruments, strongly corroborate the inference as to residence to be drawn from Mrs. Reed’s acts and conduct. They were not expressions let drop in mere casual conversations or contained in friendly letters, but, as said by Chase, J., in Cruger v. Phelps (Sup.) 47 N. Y. Supp. 61: "Were made when there was no controversy, and cover such a long period of time as to preclude the idea of their being made with reference to property rights, and they were so deliberately and
The decree is affirmed. Affirmed.