19 Tex. 522 | Tex. | 1857
It is objected on behalf of the appellee, that the appellant is not entitled to a revision of the judgment on the merits, because the statement of facts is imperfect. It
The main question in the case is, whether the removal of Watson and wife with his ward, Elizabeth Hamilton, from Mississippi to Texas, and hence to Arkansas, effected a change of the domicil of the ward ; for it is not questioned and is undeniable, that the law of her domicil at the time of her death must regulate the succession to her personal property. Judge Story, in his Conflict of Laws, has examined the authorities on the question, whether a guardian has the power to change the domicil of his ward from one country to another, so as to change the rule of succession to his personal property, in case of his death, at some length ; and from his citations it ' appears that, while there is a difference of opinion among '.foreign jurists, the weight of authority is in favor of the power, if the change was without fraud. There certainly is a great weight of authority in favor of such a power in the parent; though some foreign jurists take a distinction between the case of a change of domicil by a parent, and by a guardian, and while they admit the right in the former, deny it to the latter. (Story, Con. Laws, Sec. 505 to 507, and notes.) “ The same question (says Judge Story) has occurred in England ; and it was on that occasion held, that a guardian may change
It is to be regretted that the question is left by the authorities in so much doubt and uncertainty. The opinions of American Courts, as far as we have seen, appear to favor the power of the guardian ; though the cases are not precisely in point to the present. (Holyoke v. Haskins, 5 Peck. R. 20 ; Cutes v. Haskins, 9 Mass. 543 ; Guier v. O’Daniel, 1 Binn. R. 349, note ; Upton v. Northbridge, 15 Mass. 239.) We will conclude our examination of authorities by reference to the opinion of Chief Justice Gibson, in.School Directors v. James (2 Watts & Serg, 568.) He considers the civilians equally divided upon the question, whether a guardian or tutor stands in the place of a parent, and has the same power as a father, or mother, sui juris, to change the domicil of a child ; and
Reversed and remanded.
Roberts, J., did not sit in this case.