3 Bradf. 267 | N.Y. Sur. Ct. | 1855
David F. Sherwood having died intestate, a question has arisen as to his residence at the time of his decease, his brothers and sisters alleging that he was domiciled in
Without going back more remotely, I think it clear that the decedent was domiciled in Hew York at the time of his marriage in 1844. He marries here, and keeps house. It was sought to escape the force of this fact, by endeavoring to make it appear that the house was kept by his mother-in-law;
Hew York was the decedent’s place of business for many years—he signed all his papers as of Hew York—his vessels were registered here—he sailed from and returned to this port—he married here, kept house and left his wife here, when going abroad. It is said the residence of the wife cannot affect the question, because the domicil of the wife follows that of the husband; without controverting that legal doctrine, it is manifest that the residence of the family is an important element in determining the abode of the head of the family. The wife is usually placed at home. If not accompanying her husband abroad, her residence is ordinarily the point to which he expects to return, and which he esteems his place of permanent domicil. There is another fact, which, in a nicely balanced case, would be decisive. In 1852, the decedent became owner of the bark Cuba, and declared under oath at the Custom House that his “ present place of abode or residence” was Hew York. This sworn statement standing
I think his domicil here as well established as was consistent with the nature of his calling. He had no family except his wife, and his living at lodgings after the decease of his mother-in-law does not detract from the permanence of his abode. (Whicker vs. Hume, 5 Eng. Law & Eq. R., 52.) That he remained here only while preparing for sea is not sustained by the proof, though if it had been the case, it would have been nothing extraordinary for an industrious