36 A. 282 | N.H. | 1892
The maxim that the domicile of the wife follows that of her husband "results from the general principle that a person who is under the power and authority of another possesses no right to choose a domicile." Sto. Confl. Laws, s. 46. "By marriage, husband and wife become one person in law, — that is, the very being or legal existence of the wife is suspended during the marriage, or at least is incorporated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything." 1 Bl. Com. 442. Such being the common law status of the wife, her domicile necessarily followed her husband's, and the maxim applied without limitation or qualification.
But the common-law theory of marriage has largely ceased to obtain everywhere, and especially in this state, where the law *306
has long recognized the wife as having a separate existence, separate rights, and separate interests. In respect to the duties and obligations which arise from the contract of marriage and constitute its object, husband and wife are still, and must continue to be, a legal unit; but so completely has the ancient unity become dissevered and the theory of the wife's servitude superseded by the theory of equality which has been established by the legislation and adjudications of the last half century, that she now stands, almost without an exception, upon an equality with the husband as to property, torts, contracts, and civil rights. Pub. Sts., c. 176; ib., c. 90, s. 9; Seaver v. Adams,
This cannot be the law. On the contrary, the good sense of the thing is, that a wife cannot be divested of the right of suffrage, or be deprived of any civil or legal right, by the act of her husband; and so we take the law to be. Whenever it is necessary or proper for her to acquire a separate domicile, she may do so. This is the rule for the purposes of divorce (Payson v. Payson,
Upon these views, the testatrix was domiciled in this state at the time of her decease, and, as the consequence, distribution of her estate is to be made accordingly. Goodall v. Marshall,
Case discharged.
CARPENTER, J., did not sit: the others concurred.