Note. Character of residence essential to give jurisdiction in divorce proceedings.

The earlier cases on this question will be found in notes to Bechtel v. Bechtel, 12 L.R.A. (N.S.) 1100, and Winans v. Winans, 28 L.R.A. (N.S.) 992. The scope of the note is sufficiently indicated in the earlier notes. Severally, as to right of wife to acquire a separate domicil for the purposes of a divorce suit by her, see note to Carty v. Carty, 38 L.R.A. (N.S.) 297.

And as to local domicil or residence as a condition of jurisdiction of action for annulment of marriage, see note to Montague v. Montague, 30 L.R.A. (N.S.) 745,

In 14 Cyc. 584, it is said that "under the statutes of nearly, if not all, the states plaintiff must ordinarily be a resident of the state at the time the action is commenced."

To establish a bona fide residence within the meaning of a statute conferring jurisdiction in divorce proceedings, it is not sufficient to show the mere fact of residence, where it appears that there was a matrimonial domicil in a foreign state, and the claim is that the party invoking the jurisdiction has become a resident of the state. The test to be applied is: "There must be a voluntary change of residence; the residence at the place chosen for the domicil must be actual; to the factum of residence there must be added an animus manendi; and that place is the domicil of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home." Williams v. Williams, 78 N. J. Eq. 13, 78 Atl. 693.

An "actual bona fide resident" within the meaning of a statute conferring jurisdiction in divorce proceedings was said in Sneed v. Sneed, 14 Ariz. 17, 40 L.R.A. (N.S.) 99, 123 Pac. 312, to mean a person who is in the state to reside permanently, and who,

band's domicil goes to another state with the intention not to return unless he sends for her does not destroy her residence in the state, so as to deprive its courts of jurisdiction over a proceeding for divorce begun by her under a statute requiring a year's residence in the state to entitle one to maintain such action.

E

(October 14, 1914.)

XCEPTIONS by libellee to rulings of the County Court for Orange County made during the trial of an action for divorce, which resulted in a verdict for libellant. Overruled.

The facts are stated in the opinion.
Mr. David S. Conant, for libellee:

The residence of the libellant must be the same as her domicil.

at least for the time being, entertains no idea of having or seeking a permanent home elsewhere. In this case it was held that a woman could not, by leaving her husband and removing to another state because there had been a few quarrels between them over property, without violent or mental distress which would destroy her health, acquire "an actual bona fide residence" in the state to which she removed, within the maintain such action.

The above rule was laid down also in Andrade v. Andrade, 14 Ariz. 379, 128 Pac. 813, as the test of whether the plaintiff in that case had been at the time of the commencement of the action for divorce an actual bona fide resident of the state for one year. The court also quoted the rule laid down in the note on this question in 12 L.R.A. (N.S.) 1100, that "abiding in a place for a definite time until the accom plishment of a certain purpose, unaccompanied by any intention to remain permanently or indefinitely, is not sufficient to give a person a statutory residence."

In Harrison v. Harrison, 117 Md. 607, 84 Atl. 57, it was said that for a valid change of domicil, there are two requisites, namely, an act and an intent; that no definite duration of residence is requisite to accomplish the acquisition of a new domicil, but that what is required is that there shall be a clear, definite intent and an act done in the execution of that intent.

And under the California statute it was said in Smilie v. Smilie, 24 Cal. App. 420, 141 Pac. 829, that the residence can be changed only by the union of act and intent; that intention to change one's domicil is ineffectual unless accompanied by an actual change in the place of abode.

So, the mere intention of the wife, who at the time of the marriage was a resident of Pennsylvania, that she would return after the marriage to live in that state, and that her husband's domicil in New York should not be hers, even though communicated to the husband and assented to by him, will not entitle her to claim that her residence continued to be in Pennsylvania

Powers, Ch. J., delivered the opinion of the court:

These parties were married at Chicago in the fall of 1911, and came at once to New

Messrs. E. W. Smith and Frank S. Wil- bury, Vermont, to reside. They lived to

came back here to prosecute her libel for a divorce. The court below granted the libellant a divorce, and the libellee insists that this was error, because the libellant lacked the year's residence required by Rev. Stat. 3071.

was here, because her husband's was here; and the general rule is that the husband's domicil is that of the wife. True it is that, when compelled by his misconduct to leave him, she may acquire a separate residence. Patch v. Patch, 86 Vt. 225, 84 Atl. 815. But she is not obliged to do so. He cannot by his bad conduct compel her to acquire a new domicil for herself; she may retain his, though she lives elsewhere. Duxstad v. Duxstad, 17 Wyo. 411, 129 Am. St. Rep. 1138, 100 Pac. 112.

The term "reside" is used in different senses, and if this statute makes actual living here for the time specified a prerequisite, the libellant fails to make a case; for she was living in Chicago, and not in Vermont, during that time. But, having in mind the evil which the statute was de- So here the libellant's domicil was at signed to guard against,-fraudulent di- Newbury, and was not lost by the mere act vorces, we do not think that, in a case of removal, but continued until she acquired like this, it is necessary for the libellant a new one somewhere else. Turner v. Turto actually live in this state during the year ner, supra. To make a change of domicil preceding the filing of her libel. It is suffi- effective, she must have not only gone to cient if her legal domicil is here. This is Chicago and lived there, but she must have generally so held, and sufficiently appears had the intention of remaining there and from Turner v. Turner, 87 Vt. 65, 47 L.R.A. making that city her home. Blondin v. (N.S.) 505, 88 Atl. 3. And her legal domicil' Brooks, 83 Vt. 472, 76 Atl. 184. Neither

meaning of a statute conferring jurisdiction in divorce proceedings on the court where either the plaintiff or the defendant resides, was construed in Harrison v. Harrison, 117 Md. 607, 84 Atl. 57, as the equivalent of domicil. It was said that the same term was to be found in the statutes of the state relating to the right to be registered, and that in all the cases involving that right the construction had been uniform, the term having the legal significance of domicil; and that no reason was apparent why a more lax construction should be given to the word as it is used in the statute with regard to divorce.

And to a similar effect is Barber v. Barber, 89 Misc. 519, 151 N. Y. Supp. 1064, the rule being laid down that the requirement of residence, as that term is used in a statute conferring jurisdiction in divorce proceedings if the plaintiff is a resident of the state when the offense is committed, and when the action is commenced, is not satisfied by mere actual and bodily presence of the plaintiff in the state, even for a long period; but that, as there used, residence is synonymous with domicil.

and continue his residence, the time of such absence shall not be considered in determining the fact of such residence." Under these statutes, it was held in Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445, that the plaintiff had not resided for six months within the county in which he sued for a divorce, where a month after coming into the county he accepted employment which required an indefinite absence, and by reason of which he had been during three of the six months continuously in another county, although his postoffice address remained in the county in which suit was brought, and his personal effects were also left there, and he returned to that county and continued to live there during the two months immediately preceding the bringing of the action.

The statute of 1911 was said in Fleming v. Fleming, supra, aside from the proviso, neither to limit nor enlarge, but rather to emphasize, the original provisions of the statute.

The term "residence" was distinguished from domicil in Fleming v. Fleming, supra, the court saying that actual residence was The Nevada statute, prior to the amend- made by the statute the basis upon which ment of 1913, provided that divorce may the court acquired jurisdiction, and that in be obtained by complaint to the district this respect residence must be distinguished court of the county in which the cause from domicil; that one may have his domitherefor accrued, or in which the defendant cil in one state and yet be a resident of shall reside or be found, or in which the another; that "giving to the word 'resided' plaintiff shall have resided for six months as used in the statute its plain before bringing the suit. In 1911 a statute ordinary significance, it must necessarily be was passed defining what should constitute construed to require an actual living in the legal residence within the state, to the ef- county for six months preceding the filing fect that legal residence is that place where of the suit. The word 'resided' in its genthe party "shall have been actually, phy-eral acceptation carries with it the idea of sically and corporeally present within the state or county, as the case may be, during all of the period for which residence is claimed by him or her; provided, however, should any person absent himself from the jurisdiction of his residence with the intention in good faith to return without delay

permanency as well as continuity. It does not mean living in one place and claiming a home in another; it does not mean a constructive or imaginary residence in Washoe county, while actually living or abiding or being in some other county. Our statute, as contrasted with similar statutes in other

residence alone, nor intention, without more, would be sufficient. It is not found that the libellant intended to make Chicago her place of abode. All that is found is that she did not intend to return to Newbury unless her husband came for her, which is quite a different thing, and does not fulfil the requirement of the rule. Turner v. Turner, supra. The rule apparently approved by Mr. Bishop is thus stated: "If the wife is plaintiff, and by the local law it is necessary for plaintiffs in divorce controversies to be domiciled in the country, she may sustain herself on her husband's domicil there, though she is in fact living abroad; and he cannot set up, in answer to this position, his own wrong, on account of which she has lawfully acquired another domicil."

that the libellant has acquired a domicil in Chicago. The author quoted admits that the doctrine of the text is denied in some jurisdictions, and it is shown in the note to Benton's Succession, 59 L.R.A. at page 149, that some courts hold that the maxim that the wife's domicil follows her husband's cannot be invoked in her favor to confer jurisdiction when she, being a nonresident, applies for a divorce in the state of the husband's domicil. But the views herein expressed are within the following authorities: Kashaw v. Kashaw, 3 Cal. 312; Dunlop v. Dunlop, 3 Ky. L. Rep. 20; Masten v. Masten, 15 N. H. 159; Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299; Smith v. Smith, 19 Neb. 706, 28 N. W. 296; Davis v. Davis, 30 Ill. 180; Duxstad v. Duxstad, supra, a case in which the facts were es

This is going further than we are re-sentially as here. quired to go in the case in hand, for as we Affirmed, and cause remanded for a new have seen the findings here do not show time of payment of alimony to be fixed.

ties are residents of the state when the ac tion is commenced, the court saying that the term "both" in the provision "where both parties are residents" was significant, and would have not been used unless it was intended that both parties should reside in the state. So that it was held that a wife could not maintain an action against the husband in New York for separation, where the parties were married in Germany, and the husband, abandoning the plaintiff, came to New York and thereafter made his residence in that state, and the wife at the time of the beginning of the action had never been in the United States.

states, makes no provision as to residence, in the state, but bases the jurisdiction upon the residence in the county; hence actual residence in the county where the suit for divorce is instituted is necessary to convey jurisdiction to the court in which the complaint is filed. In this respect there must be a keen contract drawn between a mere legal residence, sometimes termed 'domicil,' and an actual residence. Legal residence consists of fact and intention combined; both must concur, and when one's legal residence is fixed, it requires both fact and intention to change it. Actual residence, on the other hand, is the place of actual abode, of physical presence, the abiding place. As to whether a wife may invoke the One may have an actual residence in one maxim that a wife's domicil follows the county and a legal residence or domicil in husband's, for the purpose of sustaining another. It is our judgment that the resi- the jurisdiction of a court of the husband's dence required by the statute and domicil over a suit by her for divorce when contemplated by the session act of 1911 was she is actually a resident of another state, actual residence; that is, physical corporeal see cases cited at page 149 of the note to presence, and not alone legal residence or Benton's Succession, 59 L.R.A. 135. It will domicil." be noted that in neither MILLER V. MILLER, nor in Duxstad v. Duxstad, 17 Wyo. 411, 100 Pac. 112, cited in the opinion, did the jurisdiction depend solely upon the affirmative of that proposition, as there was some evidence tending to negative a separate domicil.

In 1913 the Nevada statute was amended by adding a provision that when at the time the cause of divorce accrues, the parties are not both bona fide residents of the state, no court shall have jurisdiction to grant a divorce unless either the plaintiff or the defendant shall have been a bona fide resident of the state for a period of not less than one year next preceding the commencement of the action. Tiedemann v. Tiedemann, 36 Nev. 494, 137 Pac. 824. As to the constitutionality of the amendment, see Worthington v. District Ct. Nev. L.R.A., 142 Pac. 230.

Actual residence, and not merely a constructive domicil, on the part of the wife, was regarded in Wacker v. Wacker, 154 App. Div. 495, 139 N. Y. Supp. 78, as necessary to the maintenance of the action by her, under a statute conferring jurisdiction in separation proceedings where both par

Actual residence, as distinguished from a legal residence, which may be maintained in one place while actually living in another, was said also in Dickinson v. Dickinson, Tex. Civ. App., 138 S. W. 205, to be required by a statute providing that no suit for divorce shall be maintained unless the petitioner at the time of exhibiting the petition is an actual bona fide inhabitant of the state, and shall have resided in the county where the suit is filed six months next preceding the bringing of the suit.

And the residence required by the above statute must be continuous; it is not neces

and still have resided therein such length of
time as to the court in its discretion shall
seem to warrant the exercise of the powers
conferred upon it by the statute, the ac-
quirement of a residence or domicil must
precede the preferment of the petition, and
one cannot present a petition for divorce
with the expectation or hope of thereafter
acquiring such a residence or domicil. Wal-
ker v. Walker, 32 R. I. 28, 78 Atl. 339. The
court, however, expressly stated that it did
not mean to imply that in a proper case,
one of urgent necessity, a wife could not
become a domiciled inhabitant of the state
by residing therein separate and apart from
her husband one day or even a fractional
part thereof for the purpose of becoming a
petitioner for divorce.
R. E. H.

sary that every day or perhaps every week | shall be a domiciled inhabitant of the state, should be passed in the county, but the bulk of the time should be passed there. Ibid. On the principle that a temporary absence would not defeat the jurisdiction of the court under the Texas statute, it was held in McLean v. Randell, Tex. Civ. App. 135 S. W. 1116, that the fact that the wife, after leaving her husband, went to another county and remained there with her married daughter until the trial in the divorce proceedings, the petition for divorce having been filed two days after she left her husband, would not prevent her bringing the action in the court of the county in which she and her husband had resided. And a mere temporary absence during the year, when the permanent bona fide residence within the state remains unchanged, will not defeat the right to maintain an action for divorce under a statute requiring an applicant for divorce to have resided in the state at least one whole year previous to the filing of the petition, but

KANSAS SUPREME COURT.

Deceased.

the period of such bona fide residence within RE ESTATE OF ALFRED I. MILLER, the state must include the time of the filing of the petition, and the whole of the previous year. Heath. v. Heath, 44 Pa. Super. Ct. 118.

The continuous residence contemplated by a statute conferring jurisdiction in actions for a separation of husband and wife, when the parties, having been married without the state, have become residents of the state, have "continued to be residents thereof at least one year," and the plaintiff is such a resident when the action is commenced, is a residence continued up to the time of the separation, and not merely an uninterrupted residence of one year by the husband and wife at any period antecedent to the commencement of the action. Elwell v. Elwell, 70 Misc. 61, 128 N. Y. Supp. 495.

Where the husband separates from the wife, with whom the children of the marriage remain, his place of residence is to be determined as if he were "a person having no family," within the meaning of a statute providing that the domicil of every person is the place where his family permanently resides, or, if he has no family, the place where he "shall generally lodge shall be considered his domicil." Smith v. Smith, 136 Ga. 197, 71 S. E. 158.

Mc

It has been said that one may have a residence in a boarding house as well as in a rented building or property owned outright; that the question is not how the party lived, but whether she has determined to make the place her home. Clintock v. McClintock, 147 Ky. 409, 39 L.R.A. (N.S.) 1127, 144 S. W. 68. In this case it was held that a wife who left her husband because of cruel treatment and went to another county, having no home of her own to which to go, might acquire a residence in such county, although she did not go to housekeeping, but merely stopped with a relative.

Under a statute providing that the petitioner in a proceeding for divorce from bed and board until the parties are reconciled,

Appeal

(90 Kan. 819, 136 Pac. 255,)

denial of administration. 1. An appeal may be had from a decision administrator and grant administration of of the probate court refusing to appoint an the estate of a nonresident intestate, where the decision is based upon the ground that to be administered. such intestate left no property in the state

Executor - situs of stock.

2. The situs of shares of capital stock in a Kansas corporation owned by one who was

a resident of another state at the time of his death, for the purpose of administration, is at the domicil of the decedent,

rather than in the state in which the cor

poration is organized and has its place of business.

(Johnston, Ch. J., and Mason and Smith, JJ., dissent.)