Smith v. Croom

7 Fla. 180 | Fla. | 1857

Lead Opinion

DuPont, J.,

delivered the opinion of the Court.

This is an application on the part of the appellees for a re-hearing of the above stated cause, which was decided at the present term. The petition sets forth two grounds as the prominent basis of the application : First, that the Court erred in deciding upon the survivorship of William Henry, the son of Hardy B. Croom, for the reason that that point had not been passed upon by the Chancellor who pronounced the decree, and for the further reason that the conflict of evidence upon the fact, made it a case peculiarly appropriate for the decision of a jury. Secondly, that the Court erred in deciding that the domicil of succession of H. B. Croom was in North Carolina at the date of his decease; and that error is accounted for upon the hypothesis, that in the consideration of that point by the Court, the act of voting hy Mr. Croom, in Florida, in the year 1833, did not receive its proper weight, and that too ■much stress was placed upon the fact that his family continued to reside at the domicil of origin in North Carolina

With'respect to the first point, we are fully satisfied that it was not only within our province, but that it became'our' imperative duty to decide upon the question of survivor-ship. The position assumed in the petition is, that the Supreme Court, as an appellate tribunal, is prohibited by the very nature of its organic functions from determining any question which may not have been passed upon in the Court below, and that to do so would be to convert it into a Court of original jurisdiction. This position may be perfectly sound when applied to an appeal from an interlocutory decree, which does not conclude the merits of the case, but it is clearly not applicable to an appeal from a final decree. . The decree appealed from in this case was, that the bill be dismissed. Conceding the position to be. well taken, then how, and by what means, is the Court to ascertain whether or not the Chancellor did pass upon the question of the son’s survivorship ? The only legitimate source of information that we can resort to, to ascertain the action of the Chancellor, is the decree itself, which constitutes a part of the record. That decree is in the following words, viz; “ This cause having been heard in February, 1856, and held under advisement, until the Court being advised of its judgment and decree to be rendered therein ; and it appearing to the Court that the complainants have failed to sustain the allegations of their bill, and are not entitled to the decree prayed for therein; it is therefore ordered and decreed that the said bill be dismissed, and that the complainants pay the costs of the suit.” Will it, in the face of this decree, be seriously contended that the quéstion of the survivorship of the son was not determined by the Court below? Was it not a most material “allegation” in the plaintiff’s bill, and the one upon which her right (as his administratrix) to the possession of the personal property in controversy, mainly depended ? Here was a suit between the administratrix of the son, and the administrator of the father — the question of survivorship as between the two, was the controlling question in the case, so far as the right to the possession of the personal property, in their respective representative characters, was concerned. If the father survived, the possession belonged to the administrator; but if the son survived, then his administratrix was entitled to the possession, no matter whether the domicil were determined in Florida or in North Carolina. Some suggestion was made at the hearing of the original case, that if the domicil should be determined to be in Florida, the Court ought not to disturb the possession of the defendants, even though it should be decided the son survived the father, inasmuch as the defendants, in that state of case, would be the only parties entitled to the distribution of the estate. A full answer to this view of the matter is, that distributees of personal jaroperty are permitted to enforce their claims only through an- administration duly granted upon the estate of the decedent, and that by the recorded consent of the defendants, the complainant was permitted to amend her original bill, by styling herself as the administratrix of the son, and thus her representative character, and the rights and incidents attaching thereto, were fully recognised by the defendants themselves.

¥e will not feign an ignorance of the source whence the counsel who framed the petition for this application derived the information that the question of the survivorship of the son had passed subsilentio before the Chancellor. Thatinformation, we presume, was furnished by the printed opinion of the Chancellor, which was politely handed to the members of the Court during the progress of the cause, and the perusal of which they did not debar themselves from any false notions of propriety. But it will be distinctly recollected that the Court refused to permit the same to be read, for the avowed reason that it constituted no part of the record upon which they were called to decide. This Court furnished by the reasoning of the Court below, but when it comes to decide, it has to do only with the conclusions as they are embodied in the judgment or decree — the logic of the Judge is beyond its control.

But the question as to the province of this Court to consider all questions made by the pleadings, has been authoritatively settled by a former adjudication, and we need do no more than briefly to refer to the case. In the Southern Life Insurance and Trust Co. vs. Cole, 4 Florida Rep., 359, Justice Thompson, in a very able review of the cases on this subject, sums up in the following language: “ From a careful review of the authorities, we are satisfied that an appeal in equity is substantially a re-hearing of the cause, and that the appeal opens the whole case to the respondent in the Appellate Court; and although the appellant may show that the view taken by the Court below was error.oneous, yet on the other hand the respondent may argue, and show if he can, that upon the whole case the same result must be attained here. The authority of this Court, by sec. 5th of the act of Feb. 10, 1832, (Thomp. Dig., 449,) is ‘to reverse or affirm the judgment, sentence or decree of the Court below, or to give such judgment, sentence or decree as the Court ought to have given.’ It is very clear that the power to give the decree which the Court below ought to haye pronounced, could never be exercised if this Court did not possess the right to look into the whole case, as it is presented in the record, and to con. sider it as th.e Court below should have considered it. ¥e are therefore satisfied that we have the right to look into the whole cause, as it is presented in the record — to reexamine questions decided against the respondent, and also such as passed sub silentio in the Court below ; or to consider points made here for the first time, provided they are made by the pleadings and proofs, but adopting, howpyer, for the protection of the parties, the guards laid down by C. J. Spencer, in the case before cited, that neither party will be permitted, to surprise or mislead his adversary, or to make objections which might have been obviated had they been presented for the consideration of the Court below.”

~With regard to the suggestion that the conflict of evidence upon the question of survivorship, makes it a point peculiarly appropriate for an issue to the country, we have only to remark, that if the conflict were such as it is represented to be, the suggestion woulcl have been much more appropriately made in the Court below than here, where the consequence would be a still further delay of rights which have already been in litigation near twenty years. Nut this Court does not feel the pressure of the conflict of the evidence to the extent suggested, for our conclusion upon this point is the result of a moral conviction, which leaves no reasonable doubt upon the mind. An issue out of chancery is usually at the suggestion of the Chancellor himself, and is intended to aid him in arriving at a satisfactory conclusion as to a particular fact; it is not a matter of right.

"With regard to the second ground of error assigned in the petition, viz : that in the consideration of the question of domicil, too little weight was given to the exercise by Mr. Croom of the political right of voting, and too much of the fact of the continued occupancy by his family of his original family mansion. We have only to remark that we have maturely considered the point, by an anxious and deliberate review of our reasoning on the subject, and a thorough re-examination of the authorities relied on ; and we find no cause to suspect the correctness of our original conclusion. In treating of these acts in the original opinion, they are viewed merely as criteria.of intention, more or less controlling, according to the attendant circumstances. The error into which the counsel have fallen in the argument on this point, we conceive to he, that instead of weighing the various acts and declarations of Mr.-Croom, .as a matter of evidence, to determine his intention, they would make the isolated act of voting over-ride every other indication, and therefore conclusive. We do not think that any of the authorities, when properly interpreted, give any support to this view.

We deem it proper to remark, in conclusion, that the mode observed in presenting this application to the Court, has been in some measure a departure from the obvious requirement of the rule upon this subject. That rule prescribes that Re-hearings must be applied for by petition in writing within fifteen days after the judgment or decree? setting forth the cause or causes for which the judgment or decree is supposed to be erroneous. The Court will consider the petition without argument, and if a re-hearing is granted, direct it as to one or more points, as the case may require.” The application in this case has been presented in the form of an elaborately written argument, and not by simple petition, as is directed in the rule. We mention this merely for the purpose of maintaining the correct practice under the rulo, and with no design to impute an intentional impropriety to the counsel who makes the application. The soundness of this interrelation of the rule is too obvious to need any argument in its support, for it will readily occur to every practitioner that if it be important to one party to have his cause re-heard, it is equally important to the other that there should be an end to the litigation. The case of Lines vs. Darden, (6 Fla. Rep. 37,) forms no exception to this view of the practice. In that .case the petition had been filed at a former term, but was not then heard. It afterwards came before the Court, which was composed of other Judges, (an election for these officers having intervened,) and inasmuch as they had not heard the case when argued at bar, as a matter of necessity, and to avoid the inconvenience of another argument on the merits, they resorted to the original briefs of the counsel in order to put .themselves fully in possession of the-case. There was no new brief to support the application for the re-hearing.

[The following opinion of Pearson, J., on the case as first decided, did not reach the Reporter in time to be inserted in its place immediately following the main opinion, and is here inserted.]

We desire to remark in this connection, that in view of the important principles of law decided in this case, and' also in view of the heavy interest at stake, with a most anxious desire to detect any error that we may have inadvertently fallen into, we have, under these veiy peculiar circumstances, felt ourselves at liberty to depart from the strict, and, we think, proper practice, and have maturely considered the argument and authorities presented by the-counsel for the applicant.- But in thus acting, it has been with the distinct understanding among ourselves that if, in the investigation, we should see cause to waver as to our original conclusions, it would be appropriate to call for an argument from the other side. We trust, however, that this departure from strict practice will not hereafter be invoked as a precedent.

The application for a re-hearing of the cause is refused, and the petition ordered to be dismissed.

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Concurrence Opinion

Pearson, J.:

Concurring as I do entirely in the opinion and judgment of the Court, I am nevertheless desirous of presenting some further views upon the question of domicil, ■ which has been considered of so much importance in the determination of this cause.

. Sundry distinctions have been taken in-the books, in regard to tbe various character and different descriptions of domicil, arrising under local statutes, and Mr. Phillimore, in his work on the subject of domicil, expresses with great propriety his regret that the term had ever been applied, in legal parlance, to any other than the domicil of succession, as regulated and defined by the great code of international law. All other domicils are merely local, and prescribed by local laws, imposing certain duties, or conferring particular privileges, on the precise conditions of residence or inhabitancy whiclrthey define; and it is man-fest that the questions arising under these local laws, and the adjudications had thereupon, must turn upon their construction, and the duty imposed or privilege granted abide the result. With this class of cases we have, at present, nothing to do. Our enquiry is, what, by the law of civilized nations, constitutes such an incorporation of an individual with the mass of citizens of a particular State or country, as will make the local law of such State or country the rule of succession to his personal estate.

Neither elementary writers nor learned judges have succeeded in supplying a definition of this description of domicil which has generally obtained; and it would appear, upon a review of the authorities, that it would prove a much easier task to define what does not, than what does, constitute domicil of this sort. Without, therefore, attempting to furnish a definition, which jurists have not yet satisfactorily accomplished, we may venture to say, that the domicil of nativitjq or of origin, remains until changed, and that three things must necessarily concur to effect such change:

First. The original domicil must be abandoned, in purpose and fact;

Secondly. A new domicil must be obtained, de facto et animo ; and

Thirdly. There must be an intention to remain at the new domicil an indefinite time, of, in other words, no present purpose of departure therefrom.

These several propositions are questions of fact, and are to be tested by the evidence, according to the rules of the common law. Each and all of them contain two elements, the one of éxternal fact capable of the observation of the senses, the other of mental purpose, only to be reached by á full consideration of the significance of the acts done, the opinions and purposes disclosed in the writings ánd correspondence of the deceased, and the evidence of his oral declarations in relation to his intentions.

Guided by these principles, we proceed to the enquiry ¿rising oh the first point, whether Hardy B. Groom did actually form and execute the purpose of removing his domicil of succession from the State of North Carolina to the Territory of Florida. There being no imputation of fraudulent or sinister objects in the writings and correspondence of the deceased, and no direct impeachment of the credit and integrity of the witnesses, we may consider the testimony more or less valuable in the ordér in which it has been stated, and to be estimated accordingly.

What, then, upon a full survey of the vast mass of testimony presented to the Court, were the acts done by Hardy B. Oroom, in reference to this alleged change of domicil? Such acts, if not conclusive in themselves, must necessáfily be subject to the explanations afforded by simultaneous'written and oral declarations 'on his part. We find that he was a native citizen of North Carolina, residing with his family at Newbérn, in that State; that he was a gentleman of liberal education, and' trained for the bar; that he derived a handsome fortune from his father,Wm. Oroom, and intermarried with the daughter of Nathan Smith, of Newbern, by whom he received a considerable accession thereto; that he ¿planted in Lenoir county, North Carolina, ánd once represented that county in the Senate of Ms native State; that he had a taste for the natural sciences, and was particularly fond of botanical studies ; that in the fall of the year 1831 he sold out his plantation in Lenoir county, and in that and the following year removed his plantation negroes to the Territory of Florida, and purchased and settled a plantation therein, where he planted with success ; that he spent much of his time during the winters, subsequent to the removal of his planting interest to Florida, in superintending that interest, traveling south and west to see the country and choose a home, and in pursuit of his favorite amusement of botanizihg;'"'tkat in the years 1833 and 1834 he voted at the territorial elections in Florida, but never removed his family, his domestic servants and furniture to Florida, but returned, after each annual visit to Florida, to them at his original mansion house in Newbern, where they, continued to reside.

Upon this state of facts, without reference to further evidence, it is contended that the act of voting in Florida was conclusive on the question of domicil. But this is not necessarily the case. Conceding that 'Mr. Croom was a gentleman of integrity, the exercise of the elective franchise, on his part, under the territorial law prescribing the qualifications of voters in Florida, would only justify the conclusion that he considered himself possessed of such qualifications. It is simply an act equivalent to a declaration on his part that he was thus qualified. Such declaration, however formally announced, could not have been, conclusive even as to the right to vote, because Mr. Croom was not the legally authorized and final judge of his own qualifications as a voter, much less could it be conclusive on the question of a domicil of succession, which might require other circumstances and conditions not imposed by the local election law, to make out a case in conformity with the public law. And, further, it may be safely asserted that even the most direct and positive declaration that one’s domicil of succession was within a certain jurisdiction, could not conclude that question when it was unsupported by the facts and circumstances necessary to establish such domicil. That the effect of such declaration, even if made by Mr. Croom, would be in a great measure obviated by counter declarations made to the witnesses Burguin, Mrs. Winthrop and Mrs. Bice, in which Mr, Croom is not merely expressing his opinion of his rights as a voter in Florida, but declares expressly his intention of continuing his residence and domicil at Newbern. The cases which have been ruled upon the local statutes, it has been already shown, have no bearing upon this question, except in so far as a local statute may prescribe the same conditions, for some other purpose, which are necessary to be found,¡according to the jus gentium, to establish a domicil of succession. To this extent they .are entitled to consideration, but no further. The history of our own Legislation, in relation to the qualifications of voters, may well illustrate this.

By the Act of Congress, approved the 30th March, 182.2, establishing a Territorial Government in Florida, it is provided that the citizens of said Territory shall be entitled to one delegate in Congress; and, further, that “the said delegate shall be elected by such description of persons, at such times and under such regulations, as the Governor and Legislative Council may, from time to time, ordain and direct.”

By virtue of such authority, the Legislative Council, by the 13th section of the Act of Feb,, lüí:'-, pv ■’ “'Giafc all whi:.c male inhabitants, citizens oí tüe United tótates, above the age of twenty-one years, who have resided in the Territory of Florida for the space of three months immediately preceding the day of election,” may vote, — « Duval Comp. 347. It was under this act that, in May, 1833, and in 1834, Mr. Croom. voted. .

After the admission of the Territory as a State, by the Act of the General Assembly of 1846, (Thomp. Dig. p. 71,) new and far more restrictive qualifications of voters are prescribed. This act provides that “ every free white male person of the age of twenty-one years and upwards, and -who shall be, at the time of offering to vote, a citizen of the United States, and who shall have resided and had his habitation, domicil, home, and place of permanent abode in Florida'for two years nest preceding the election at which he shall offer to vote, and six months in the County,” * ** “ and who shall be enrolled in the militia thereof, unless exempted by 1,a,w from serving in the militia,” shall be’deemed a qualified elector. It is apparent, upon the slightest comparative view of these statutes, that such “ description of persons ” as might have voted under the provisions of the act of 1833, could not exercise that privilege'under the more stringent enactments of the statute''of 1846 ; arid that, although the latter act prescribes; conditions which might fulfil the requirements fox; a domicil of succession on the part of a qualified voter under it, it by no means' follows that the same consequence would Result in behalf of one qualified to vote under the former act.'

It is not then the mere right to vote, which may be conferred or withheld at the pleasure óf tlxe law-giver, and xip.on conditions light or onerous, still less is it the exex’cise of that n’ght under a local election law of doubtful import, that can fix the domicil of succession. The act of voting, therefore, being in its vei’y nature inconclusive on the question of domicil, does not impose upon the complainants, as suggested in the ai’gument, the necessity of explaining it away upon the ground of fraud or mistake. It jg but one arixong the many acts and declarations of the de? ceased illustrative of his purposes and intentions, and should have its proper weight only in such connection.— But it should be considered that Mr. Croom was an educated lawyer, and that any manifestation of an actual abandonment of his domicil in North Carolina, to be deduced from his act of voting in Florida, must depend upon his own opinion of the question whether the exercise of such privilege in Florida amounted to a forfeiture of his domicil in North Carolina. There is nothing to show conclusively what were his views on this subject. But there is ample authority in the books, which will be cited hereafter, for the opinion that such would not have been the legal result. The hypothesis that he entertained this opinion, is more plausible than that he adopted a contrary view of the subject. His subsequent declaration of purpose to remain at Newbern until he found a better home, and his final determination to settle at Charleston, show this. The act of voting in Florida is therefore as inconclusive on the question of intention to abandon the original domicil, as it has been shown to be in relation to tbe/aci of abandonment itself. The view of the argument in favor of the Florida domicil consists in a transposition of the order of events. There could be at the same time but one domicil of succession, and the abandonment and desertion of the existing domicil is a material and necessary condition precedent to the acquisition of a new one. But the argument reverses the natural order of events necessary to effect a change of domicil, and claims that by the exercise o£ the political privilege of voting in Florida, Mr. Croom acquired a domicil, and this worked, by legal intendment, a forfeiture and abandonment of his original domicil, and then proceeds, as in a circle, to claim that such abandonment of the former domicil is sufficient to establish a new one here. If the fact of voting then does not establish the further and material fact pf the actual abandonment of the North Carolina domicil, by what other act of Mr. Groom’s is such abandonment made manifest ? We look in vain through the testimony for any such act. His family and his homestead were never broken up and removed to the day of his death, whatever may have been bis intentions, whether fixed and permanent, or vague and vacillating.

The right to vote might well have been confei’red by a Territorial Council, acting under an organic law of Congress, from which it derived its sole authority, upon a citizen of the United States, on condition of a brief residence in the territory. The enactments of a Territorial Legislature emanate in effect from the Federal power, because it is the source of their authority and retains the power to annul them. The qualification of voters in the Territory of Florida, in the years 1838 and 1834, may well then be considered as having been sanctioned by Federal authority. The. Territory had no existence as a State and no vote in Congress, and the entire argument, therefore, based upon the idea of State sovereignty and [a divided allegiance, has no application to the case.

In the history of tbe government, it is no new thing that citizens of the United States, and even aliens, should be permitted to vote in the territories. This practice commenced as far back as tbe Ordinance of 1787, and has been continued, under various circumstances, down to tbe late organization of tbe Kansas Territory. It was accorded to tbe Spanish population of Florida, under tbe treaty of cession, and soon after to all citizens of the United States upon three months residence therein. That the exercise of such privilege in Florida would not necessarily and by operation of law work a renunciation and forfeiture of a domicil of succession elsewhere, is sustained by the following authorities : 1 Curtis, 856 ; 2 Binn., 110-118 ; 2 Scam., 392; 10 Mass., 488; 3 Greenleaf; 11 Mass., 350; 10 Mass., 500-501; to flie'doctrind'of which the authorities cited on the other side are reconcilable. It does not appear then that Mr. Orpom, by any positive act of his, either in fact or by legal intendment, renounced his original domicil in North Carolina, without which no new domicil could be acquired. And here we might well rest the argument. But, inasmuch as a most interesting history of Mr. Groom’s life has been submitted to the Court in his correspondence and conversations with his family and friends, from, the period of his first operations in Florida to the hour of his fatal embarkation with his family on the Home, it becomes necessary that it should be examined in order that it may appear whether it contains anything to give a new color or construction to the acts under consideration. The Court has given a very patient and full consideration to this history in all its bearings, and I am well content with its conclusions.