20 Tex. 406 | Tex. | 1857
The plaintiffs having recovered in the action, the ruling of the Court upon the motion to quash the writ of sequestration'has become immaterial, as respects the merits of this appeal, and does not therefore require revision. (Cheatham v. Riddle, 8 Tex. R. 162.)
It is a sufficient answer to the objection now urged to the legal sufficiency of the petition, in that it does not distinctly aver that the domicil of Philip Trammell was in the State of Arkansas at the time of his death, that the objection was not taken in the Court below, where, had it been taken, it might have been immediately obviated by amendment. It is well settled that a demurrer, in our practice, will not be deemed to reach defective averments in pleading, which might have been cured by amendment. If a party would take advantage of such a defect in the pleadings of his adversary, he should point it out by exception, so that the adverse party, if he thinks proper, may amend. It sufficiently appears, for the purpose of determining the sufficiency of the petition on general demurrer, that the deceased had his residence in that State at the time of his death. And it is placed beyond question by the defendant’s answer and the evidence in the case.
It is well settled that the succession and distribution of personal or movable property, wherever situated, is governed by the law of the country of the owner’s or intestate’s domicil at the time of his death. The domicil of the nativity of Nicholas Trammell having been in the State of Arkansas, the plaintiffs are entitled to recover, unless his domicil had been changed to this State at the time of his decease.
The general rule is undoubted, that the domicil of nativity continues until a new domicil is acquired; and that minors are generally deemed incapable of changing their domicil during their minority. After the death of the father his domicil remains that of his infant children. It is true, thatj for some purposes, a
The widow of the minor, if properly a party to the suit in the Court below, has not appealed, and the decision of the case cannot affect her rights. Whatever they may be, we are of opinion that, upon the state of case presented by the record, the defendant is not in a condition to set up the alleged change of domicil of the minor to defeat the plaintiff’s right. We are therefore of opinion that there is no error in the judgment, and that it be affirmed.
Judgment affirmed.