62 N.J. Eq. 807 | N.J. | 1901
The opinion of the court was delivered by
The appeal in this case is taken from the decree of the court of chancery, refusing the application of the petitioner for a di
The fact that a person comes into a state for a specified purpose does not necessarily prevent him from procuring a residence there, if at the time of coming he has no definite idea of removing from the state when that purpose is accomplished, or at some other definite period. But if he goes with the avowed object of living there to secure a standing on which to found a judicial proceeding, a violent presumption would arise that the animus of remaining was not definite, but was largely determinate upon the termination of such procedure, and that an actual and bona fide residence had not been obtained. The petitioner was not impeached in any way, and her testimony not contradicted; it was consistent, clear and relevant; did not bear any intrinsic evidence of improbability, and was sufficient after the other testimony produced, under the statute, to establish her residence here, and entitled her to the divorce prayed for.
A court or jury may consider the weight of evidence, and pass upon the credit of the respective witnesses, but can they arbitrarily and capriciously refuse to accept the unimpeached, uncontradicted testimony of a witness which is not inherently
The act tinder -which this application was made provides that the court of chancery shall have jurisdiction in all causes of divorce, alimony and maintenance * * * where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and shall have been a resident of this state for the term of two years, during which such desertion shall have continued. Gen. Slat. p. 1273 § 39.
Residence has 'been defined to be the place where a person’s habitation is fixed, without any present intention of removing therefrom. The place where a person lives is prima facie taken to be his residence, unless facts be established to the contrary. 3 Am. L. Reg. (N. S.) 262; Ennis v. Smith, 14 How. 423; Hoskins v. Matthew, 8 De G. M. & G. 12. Residence does not depend upon the manner of living, which may be at housekeeping or lodging. Waterborough v. Newfield, 8 Greenl. 203; 1 Am. Lead. Cas. 744. Residence is lost by leaving the place where one has acquired a permanent home, and removing to another place animo non revertendi, and is gained by remaining in such new place animo manendi. A feme covert’s residence follows that of her husband, but terminates with the reason upon which it rests, and when the union between the two ceases, and an attitude of hostility arises, they may each have different residences. Harteau v. Harteau, 14 Pick. 181; 3 Am. L. Reg. (N. S.) 260. Residence and domicile have been fully described in this state, in Stout v. Leonard, 8 Vr. 492, 495; Daubmann v. Camden, 10 Vr. 57; Magowan v. Magowan, 12 Dick. Ch. Rep. 322. The testimony clearly shows that the petitioner lived within the State of New Jersey during the statutory time required for procuring the divorce prayed for; that she acquired a residence here and was a resident at the time of filing her petition; that the desertion was continued, willful and obstinate during the said time; that she left Albany with no idea of returning, and came herewith no -intention of leaving. She is entitled to the divorce prayed for.
The decree should be reversed.