40 N.C. 190 | N.C. | 1848
Francis Locke, by his will, devised to Esther Pinxston, during her life, certain shares of stock upon the State Bank of North Carolina, and after her death to her children. Dr. Scott, the executor, took said fund into his possession, and regularly received and paid the dividends over to the legatee up to the time of his death in 1838. Dr. Scott went to the State of Tennessee for the purpose of examining the country, with a view to a removal if he liked it, and took with him a number of slaves, leaving his wife and family, a number of slaves and other property behind him, in the county of Rowan, where he (191) had been living many years. After his death, which took place in 1838, administration was duly granted in that State upon his property there, and in the year _____ his widow removed to Tennessee, taking with her the remainder of the negroes belonging to the estate of Dr. Scott and other property. These negroes she took with her by the consent of the defendant, who was her uncle, and to whom Dr. Scott had conveyed all said property by deeds of trust. The defendant administered on the estate of Dr. Scott, which was in this State in 1841, and Mrs. Scott took the negroes to Tennessee some time before. Upon the hearing, an account was decreed and a reference made, with special instructions. Among others was the following: "The nature and value of the property sent by the defendant to Tennessee the time at which it was so sent, whether before or after the defendant took out letters of administration upon the estate of Dr. Scott. The master will further report whether Dr. Scott, at the time of his death, had removed to Tennessee or was there merely making preparations to remove."
The master made his report, and several exceptions were filed by the plaintiffs. The first exception is that there was no legal evidence that Dr. Scott had removed to Tennessee. The master has made no specific report upon this inquiry, and, if he intended so to do, it is to be gathered from the report on the subject of the administration granted *134 in Tennessee. If his intention was so to report on that point, the exception is sustained, for both the reasons assigned in the exception. (192) There is no evidence that such was the fact, and it is contradicted by the answer. Upon this subject the testimony of Mr. Stirwalt is decisive. He states that when Dr. Scott started for Tennessee, he declared he was going to Tennessee to look about, and, ifpleased with the country, intended to stay or make a permanent location there, and took with him eight or ten valuable negroes. His family continued to live on and cultivate the same place where Dr. Scott had lived for many years, and continued there until the fall of 1839. Dr. Scott went to Tennessee in 1837 and died in October, 1838. The defendant in his answer states that, at the time Dr. Scott died, he was making preparation to remove to Tennessee. Here, then, we have the declaration of Dr. Scott, that his going to Tennessee was not a removal there, but an exploratory trip, preparatory to a removal if he liked the country; and we have the admission of the defendant that he was making preparation to remove at the time he died. To remove is to change one's domicil or place of permanent residence. Dr. Scott had not changed his domicil at the time of his death. When he went to Tennessee, in addition to his own declaration, we have the fact that his wife and family and a large portion of his property was left in North Carolina, where it remained until after his death. North Carolina was the domicil of origin of Dr. Scott, and must so remain until he acquired another. The acquisition of a new domicil does not depend simply upon the residence of the party; the fact of residence must be accompanied by an intention of permanently residing in the new domicil, and of abandoning the former; in other words, the change of domicil must be made manifest, animo et facto, by the fact of residence and the intention to abandon. De Bonneval v. De Bonneval, 6 Eng. Eq., 502, 1 Curt., 856; Craigie v. Lewin, 7 Eng. Eq., 460, 3 Curt., 435.Sir Herbert Jermer Trest in the latter case says the result of all the cases is that there must be the animus et factum, and (193) that the principle is that a domicil once acquired remains until another is acquired or the first abandoned, and that the length of residence is not important, provided the animus be there. If a person goes from one country to another with the intention of remaining, that is sufficient, and whatever time he may have lived there is not enough, unless there be an intention of remaining. Again, in the case of De Bonneval the same judge lays down this principle: "The presumption of law being that the domicil of origin subsists until a change of domicil is proved, the onus of proving the change is on the party alleging it, and the onus is not discharged by merely proving residence in another place, which is not inconsistent with an intention to return to the original domicil." *135
Apply these principles to the case before us. Dr. Scott's domicil of origin was North Carolina. What evidence does the defendant, who insists he had changed it, produce? Not a particle, except the fact that he had resided in Tennessee a year before his death. Where is the proof of his intention to make that his permanent place of residence? There is none whatever. There is no proof of making any preparation to move his family. We have seen that the duration of the residence is nothing, unless theanimus non revertendi accompanies it, and that it did not, the continuance of his family at the former domicil is strong evidence. There was not theanimus et factum. We are of opinion then that Dr. Scott at the time of his death had not acquired a domicil in Tennessee, but that it was still in North Carolina.
The second exception is to that part of the master's report in which he states that there is no evidence that the defendant sent any property to Tennessee. This exception is allowed. The answer states that after the death of Dr. Scott, his wife being desirous to go to Tennessee, the defendant was willing that the other property mentioned in the deed of trust should be removed, and it was so accordingly removed, (194) there being, at that time, an administrator regularly appointed in that State, towit, Mr. William Treat, "to whom all saidproperty was consigned by the defendant." We think this is an admission that he did send the property to Tennessee.
The third exception is sustained. It is founded, as we understand it, upon the principle that the domicil of Dr. Scott, at the time of his death, being in Rowan County, in this State, the letters of administration granted to the defendant by the court of that county was the primary administration, and that granted in Tennessee was ancillary; and that it was therefore the duty of the defendant to have collected the assets of the estate, though they were in Tennessee. It is well settled that an administrator appointed in one State cannot sustain an action, brought in his representative character, in another. 1 Hagg., 355; Butts v. Price,
The report is set aside, and the case is referred back to the master, with the instructions formerly given, and in conformity with the principles now declared, unless the defendant admits the property sent to Tennessee was sufficient to pay the plaintiff's demands.
PER CURIAM. Order accordingly.
Cited: Horne v. Horne,
(196)
