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(N.S.) 249, 118 Am. St. Rep. 811, 55 S. E. band's domicil goes to another state with 831, 10 Ann. Cas. 643; Tussey v. Owen, 147 the intention not to return unless he sends N. C. 338, 61 S. E. 180; Eureka Lumber Co. for her does not destroy her residence in v. Harrison, 148 N. C. 333, 62 S. E. 413. the state, so as to deprive its courts of Nor can we sustain the motion that a cause

jurisdiction over a proceeding for divorce

begun by her under a statute requiring a of action is not stated.

year's residence in the state to entitle one to The judgment of nonsuit is reversed.

maintain such action.

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(October 14, 1914.) VERMONT SUPREME COURT.

E

XCEPTIONS by libellee to rulings of the

County Court for Orange County made ANABEL MILLER

during the trial of an action for divorce, V.

which resulted in a verdict for libellant. JAMES C. MILLER.

Overruled.

The facts are stated in the opinion. 1- Vt. — 92 Atl. 9.)

Mr. David S. Conant, for libellee: Divorce - domicil wife leaving state.

The residence of the libellant must be the That a wife compelled to leave her hus- same as her domicil. Note. Character of residence essen- at least for the time being, entertains no

tial to give jurisdiction in divorce idea of having or seeking a permanent home proceedings.

elsewhere. In this case it was held that a

woman could not, by leaving her husband The earlier cases on this question will and removing to another state because there be found in notes to Bechtel v. Bechtel, 12 had been a few quarrels between them over L.R.A.(N.S.) 1100, and Winans v. Winans, property, without violent or mental dis28 L.R.A.(N.S.) 992. The scope of the note tress which would destroy her health, acis sufficiently indicated in the earlier notes. quire "an actual bona fide residence” in

Severally, as to right of wife to acquire the state to which she removed, within the a separate domicil for the purposes of a maintain such action. divorce suit by her, see note to Carty v. The above rule was laid down also in Carty, 38 L.R.A.(N.S.) 297.

Andrade v. Andrade, 14 Ariz. 379, 128 Pac. And as to local domicil or residence as a 813, as the test of whether the plaintiff in condition of jurisdiction of action for annul. that case had been at the time of the comment of marriage, see note to Montague v. mencement of the action for divorce an Montague, 30 L.R.A.(N.S.) 745,

actual bona fide resident of the state for In 14 Cyc. 584, it is said that "under the one year. The court also quoted the rule statutes of nearly, if not all, the states laid down in the note on this question in plaintiff must ordinarily be a resident of 12 L.R.A.(N.S.) 1100, that “abiding in a the state at the time the action is com- place for a definite time until the accom. menced."

plishment of a certain purpose, unaccomTo establish a bona fide residence within panied by any intention to remain permathe meaning of a statute conferring juris- nently or indefinitely, is not sufficient to diction in divorce proceedings, it is not give a person a statutory residence." sufficient to show the mere fact of resi- In Harrison v. Harrison, 117 Md. 607, 84 dence, where it appears that there was a Atl. 57, it was said that for a valid change matrimonial domicil in a foreign state, and of domicil, there are two requisites, namely, the claim is that the party invoking the an act and an intent; that no definite jurisdiction has become a resident of the duration of residence is requisite to accomstate. The test to be applied is: “There plish the acquisition of a new domicil, but must be a voluntary change of residence; that what is required is that there shall be the residence at the place chosen for the a clear, definite intent and an act done in domicil must be actual; to the factum of the execution of that intent. residence there must be added an animus And under the California statute it was manendi; and that place is the domicil of said in Smilie v. Smilie, 24 Cal. App. 420, a person in which he has voluntarily fixed | 141 Pac. 829, that the residence can be his habitation, not for a mere temporary changed only by the union of act and in: or special purpose, but with a present in- tent; that intention to change one's domitention of making it his home, unless or cil is ineffectual unless accompanied by an until something which is uncertain or unex: actual change in the place of abode. pected shall happen to induce him to adopt So, the mere intention of the wife, who some other permanent home.” Williams at the time of the marriage was a resident v. Williams, 78 N. J. Eq. 13, 78 Atl. 693. of Pennsylvania, that she would return

An "actual bona fide resident" within after the marriage to live in that state, the meaning of a statute conferring juris- and that her husband's domicil in New York diction in divorce proceedings was said in should not be hers, even though communiSneed v. Sneed, 14 Ariz, 17, 40 L.R.A. (N.S.) cated to the husband and assented to by 99, 123 Pac. 312, to mean a person who is him, will not entitle her to claim that her in the state to reside permanently, and who, I residence continued to be in Pennsylvania

was

vorce

Anderson v. Anderson, 42 Vt. 350, 1 Am. Powers, Ch. J., delivered the opinion of Rep. 334; Patch v. Patch, 86 Vt. 225, 84 the court: Atl. 815.

These parties were married at Chicago in Messrs. E. W. Smith and Frank S. Wilo bury, Vermont, to reside. They lived to

the fall of 1911, and came at once to New. liams, for libellant:

gether there on a farm owned by the liPetitioner's husband's domicil

in

bellee and his brother until May, 1912, Newbury; therefore her domicil was there, when, on account of the husband's cruel and Orange county was the proper place to treatment, the libellant was compelled to bring her petition for a divorce.

leave him. She went back once for a recLoker v. Gerald, 157 Mass. 42, 16 L.R.A. onciliation, but was in effect turned away 498, 34 Am. St. Rep. 252, 31 N. E. 709; by him and forbidden to return. She then Ayer v. Weeks, 65 N. H. 248, 6 L.R.A. 716, to return to Vermont unless her husband

went back to Chicago, and did not intend 23 Am. St. Rep. 37, 18 Atl. 1108; Re came for and requested her to do so. This Wickes, 128 Cal. 270, 49 L.R.A. 138, 60 Pac. he never did, though there was some cor867; Bechtel v. Bechtel, 12 L.R.A.(N.S.) respondence between them looking toward 1100, and note, 101 Minn. 511, 112 N. W. 2 resumption of marital relations at New883.

bury. She remained in Chicago until she after the marriage, within the meaning of quired by a statute providing that an applia statute requiring a year's residence in cant for divorce shall have resided in the the state by an applicant for divorce, where state for the term of one year is “a bona following the marriage the parties lived and fide residence animo manendi—a residence cohabited in New York. Barning v. Barn- acquired with domiciliary intent-as dising, 46 Pa. Super. Ct. 291.

tinguished from a mere coming into the And intention alone, it was said in Tur- state with the sole intent to abide there ner v. Turner, 87 Vt. 65, 47 L.R.A.(N.S.) | long enough to obtain a divorce and then 505, 88 Atl. 3, cannot retain a residence return to the former domicil.” every vestige of which is gone, with no But the fact that the plaintiff in an acplace left to which the party has the right tion for divorce was moved to go to the to return. Therefore, intention by one re- state as one in which he could obtain a dimoving with all his effects from a town

more speedily and readily than in which is not his domicil of origin, to re- the state of his former domicil, and for the tain his residence there, is not sufficient purpose of obtaining a divorce, would not, to effect that result for the purpose of it was said in Gildersleeve v. Gildersleeve, conferring jurisdiction of a divorce proceed- Conn. 92 Atl. 685, prevent him from ing, if he has in that place neither prop- acquiring a new domicil in the state to erty nor home nor place to which he has a which he removed. It was said that “whatright to return.

ever the motive or purpose actuating a The rule laid down in an earlier case-- change of domicil may be, the tests to be De Meli v. De Meli, 120 N. Y. 485, 17 Am. applied in determining whether one has in St. Rep. 652, 24 N. E. 996, cited in the note fact taken place do not include them. The on this question in 12 L.R.A. (N.S.) 1100,– sole considerations are: (1) An actual was approved in Butler v. Butler, 134 N. change of residence; and (2) the absence Y. Supp. 108, that the term “residence" as of an intention to remove elsewhere. used in the statute conferring jurisdiction There is no rule of law which prevents one in divorce proceedings is synonymous with from changing his domicil in order to facili. inhabitancy or domicil. And it was held tate his obtaining a divorce, or to secure that one did not lose his residence in New other advantages he may think that the York by going to Canada for his health, laws of the new domicil may afford him. when he expected to return to New York He is free to change at his pleasure, but and resume business upon his recovery, and the change must be a bona fide one to be left there his household and personal effects. effective. If actual and bona fide, the

“The residence contemplated by the ex- change will be accomplished.”. And the pression of the statute 'a bona fide resi- rule was quoted that if “the animus really dence' means something more than an abode exists to remain there permanently, the fact more or less permanent. It denotes a ‘resi- that the motive of removal is to procure a dence' within the legal meaning of the word divorce is immaterial.” 'domicil,' that is, an abode animus manendi, The words "actual resident, in good faith,

a place where a person lives or has of this state for one year," in a statute his home, to which, when absent, he intends conferring jurisdiction in divorce proceedto return, and from which he has no pres. ings, are the equivalent of “domiciled in ent purpose to depart.” Cohen v. Cohen, this state for one year.” And the "domicil Del. --, 84 Atl. 122, holding that it was not is the place in which, both in fact and necessary that the plaintiff should be a intent, the home of the person is established citizen of the state to maintain an action without any purpose to return to a former for divorce, if he was a bona fide resident. home.” Connolly v. Connolly, N. D.

And in Halpine v. Halpine, 52 Pa. Super. 146 N. W. 581. Ct. 80, it was said that the residence re- So, the term “residence," within the

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came back here to prosecute her libel for a was here, because her husband's was here; divorce. The court below granted the libel- and the general rule is that the husband's ·lant a divorce, and the libellee insists that domicil is that of the wife. True it is that, this was error, because the libellant lacked when compelled by his misconduct to leave the year's residence required by Rev. Stat. him, she may acquire a separate residence. 3071.

Patch v. Patch, 86 Vt. 225, 84 Atl. 815. The term “reside” is used in different But she is not obliged to do so. He cannot senses, and if this statute makes actual by his bad conduct compel her to acquire living here for the time specified a prerequis- a new domicil for herself; she may retain ite, the libellant fails to make a case; for his, though she lives elsewhere. Duxstad she was living in Chicago, and not in Ver. v. Duxstad, 17 Wyo. 411, 129 Am. St. Rep. mont, during that time. But, having in 1138, 100 Pac. 112. 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. Tur. to 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 jurisdic- , and continue his residence, the time of such tion in divorce proceedings on the court absence shall not be considered in deterwhere either the plaintiff or the defendant mining the fact of such residence.” Under resides, was construed in Harrison v. Harri- these statutes, it was held in Fleming v. son, 117 Md. 607, 84 Atl. 57, as the equiva- Fleming, 36 Nev, 135, 134 Pac. 445, that the lent of domicil. It was said that the same plaintiff had not resided for six months term was to be found in the statutes of the within the county in which he sued for a state relating to the right to be registered, divorce, where a month after coming into and that in all the cases involving that the county he accepted employment which right the construction had been uniform, required an indefinite absence, and by reathe term having the legal significance of son of which he had been during three of domicil; and that no reason was apparent the six months continuously in another why a more lax construction should be county, although his postoffice address regiven to the word as it is used in the stat. mained in the county in which suit was ute with regard to divorce.

brought, and his personal effects were also And to a similar effect is Barber v. Bar- left there, and he returned to that county ber, 89 Misc. 519, 151 N. Y. Supp. 1064, the and continued to live there during the two rulé being laid down that the requirement months immediately preceding the bringing of residence, as that term is used in a stat- of the action. ute conferring jurisdiction in divorce pro- The statute of 1911 was said in Fleming ceedings if the plaintiff is a resident of the v. Fleming, supra, aside from the proviso, state when the offense is committed, and neither to limit nor enlarge, but rather to when the action is commenced, is not sat. emphasize, the original provisions of the isfied by mere actual and bodily presence statute. of the plaintiff in the state, even for a long The term "residence” was distinguished period; but that, as there used, residence from domicil in Fleming v. Fleming, supra, is synonymous with domicil.

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 permanency as well as continuity. It does state or county, as the case may be, during not mean living in one place and claiming a all of the period for which residence is home in another; it does not mean a conclaimed by him or her; provided, however, structive or imaginary residence in Washoe should any person absent himself from the county, while actually living or abiding or jurisdiction of his residence with the inten- being in some other county. Our statute, tion in good faith to return without delay | as contrasted with similar statutes in other residence alone, nor intention, without more, that the libellant has acquired a domicil in would be sufficient. It is not found that Chicago. The author quoted admits that the libellant intended to make Chicago her the doctrine of the text is denied in some place of abode. All that is found is that jurisdictions, and it is shown in the note to she did not intend to return to Newbury Benton's Succession, 59 L.R.A. at page 149, unless her husband came for her,—which that some courts hold that the maxim that is quite a different thing, and does not ful the wife's domicil follows her husband's fil the requirement of the rule. Turner v. cannot be invoked in her favor to confer Turner, supra. The rule apparently ap- jurisdiction when she, being a nonresident, proved by Mr. Bishop is thus stated: “If applies for a divorce in the state of the the wife is plaintiff, and by the local law husband's domicil. But the views herein it is necessary for plaintiffs in divorce con expressed are within the following authoritroversies to be domiciled in the country, ties: Kashaw v. Kashaw, 3 Cal. 312; Dunshe may sustain herself on her husband's lop v. Dunlop, 3 Ky. L. Rep. 20; Masten v. domicil there, though she is in fact living Masten, 15 N. H. 159; Sewall v. Sewall, abroad; and he cannot set up, in answer to 122 Mass. 156, 23 Am. Rep. 299; Smith v. this position, his own wrong, on account Smith, 19 Neb. 706, 28 N. W. 296; Davis of which she has lawfully acquired another v. Davis, 30 Ill. 180; Duxstad v. Duxstad, domicil.”

supra,-a case in which the facts were esThis 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. states, makes no provision as to residence, ties are residents of the state when the ac. in the state, but bases the jurisdiction upon tion is commenced, the court saying that the residence in the county; hence actual the term "both” in the provision "where residence in the county where the suit for both parties are residents” was significant, divorce is instituted is necessary to convey and would have not been used unless it jurisdiction to the court in which the com- was intended that both parties should replaint is filed. In this respect there must side in the state. So that it was held that be a keen contract drawn between a mere a wife could not maintain an action against legal residence, sometimes termed 'domicil,' the husband in New York for separation, and an actual residence. Legal residence where the parties were married in Germany, consists of fact and intention combined; and the husband, abandoning the plaintiff, both must concur, and when one's legal resi- came to New York and thereafter made his dence is fixed, it requires both fact and residence in that state, and the wife at intention to change it. Actual residence, on the time of the beginning of the action the other hand, is the place of actual abode, had never been in the United States. 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, In 1913 the Nevada statute was amended nor in Duxstad v. Duxstad, 17 Wyo. 411, by adding a provision that when at the 100 Pac. 112, cited in the opinion, did the time the cause of divorce accrues, the par jurisdiction depend solely upon the affirmties are not both bona fide residents of the ative of that proposition, as there was state, no court shall have jurisdiction to

some evidence tending to negative a sepagrant a divorce unless either the plaintiff rate domicil. or the defendant shall have been a bona fide Actual residence, as distinguished from a resident of the state for a period of not legal residence, which may be maintained less than one year next preceding the com- in one place while actually living in anmencement of the action. Tiedemann v. other, was said also in Dickinson v. DickTiedemann, 36 Nev. 494, 137 Pac. 824. As inson, Tex. Civ. App.

- 138 S. W. 205, to the constitutionality of the amendment, to be required by a statute providing that see Worthington v. District Ct. Nev. no suit for divorce shall be maintained unL.R.A.-, 142 Pac. 230.

less the petitioner at the time of exhibit. Actual residence, and not merely a con- ing the petition is an actual bona fide structive domicil, on the part of the wife, inhabitant of the state, and shall have rewas regarded in Wacker v. Wacker, 154 sided in the county where the suit is filed App. Div. 495, 139 N. Y. Supp. 78, as neces- six months next preceding the bringing of sary to the maintenance of the action by the suit. her, under a statute conferring jurisdiction And the residence required by the above in separation proceedings where both par- statute must be continuous; it is not neces

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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 and still have resided therein such length of of the time should be passed there. Ibid. time as to the court in its discretion shall

On the principle that a temporary ab- seem to warrant the exercise of the powers sence would not defeat the jurisdiction of conferred upon it by the statute, the acthe court under the Texas statute, it was quirement of a residence or domicil must held in MeLean v. Randell, Tex. Civ. precede the preferment of the petition, and App. 135 S. W. 1116, that the fact that one cannot present a petition for divorce the wife, after leaving her husband, went with the expectation or hope of thereafter to another county and remained there with acquiring such a residence or domicil. Walher married daughter until the trial in the ker v. Walker, 32 R. I. 28, 78 Atl. 339. The . divorce proceedings, the petition for divorce court, however, expressly stated that it did having been filed two days after she left not mean to imply that in a proper case, her husband, would not prevent her bring one of urgent necessity, a wife could not ing the action in the court of the county become a domiciled inhabitant of the state in which she and her husband had resided. by residing therein separate and apart from

And a mere temporary absence during her husband one day or even a fractional the year, when the permanent bona fide part thereof for the purpose of becoming a residence within the state remains un petitioner for divorce.

R. E. H. changed, 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 KANSAS SUPREME COURT. previous to the filing of the petition, but the period of such bona fide residence within RE ESTATE OF ALFRED I. MILLER, the state must include the time of the filing

Deceased. of the petition, and the whole of the previous year. Heath.v. Heath, 44 Pa. Super.

(90 Kan. 819, 136 Pac. 255.) Ct. 118. The continuous residence contemplated by

Appeal - denial of administration. a statute conferring jurisdiction in actions for a separation of husband and wife, when of the probate court refusing to appoint an

1. An appeal may be had from a decision the parties, having been married without the administrator and grant administration of state, have become residents of the state, the estate of a nonresident intestate, where have "continued to be residents thereof at the decision is based upon the ground that least one year,” and the plaintiff is such a resident when the action is commenced, is such intestate left no property in the state

to be administered. a residence continued up to the time of

situs of stock, the separation, and not merely an uninter- Executor rupted residence of one year by the husband

2. The situs of shares of capital stock in and wife at any period antecedent to the a Kansas corporation owned by one who was commencement of the action. Elwell v. El

a resident of another state at the time of well, 70 Misc. 61, 128 N. Y. Supp. 495.

his death, for the purpose of administra. Where the husband separates from the tion, is at the domicil of the decedent, wife, with whom the children of the mar

rather than in the state in which the corriage remain, his place of residence is to poration is organized and has its place of be determined as if he were “a person hav- business. ing no family," within the meaning of a statute providing that the domicil of every (Johnston, Ch. J., and Mason and Smith, person is the place where his family perma

JJ., dissent.) nently resides, or, if he has no family, the place where he “shall generally lodge shall

(November 8, 1913.) be considered his domicil.” Smith v. Smith, 136 Ga. 197, 71 S. E. 158.

Headnotes by JOHNSTON, Ch. J. It has been said that one may have a

Note.

What assets will give jurisdicresidence in a boarding house as well as in

tion to appoint administrator. a rented building or property owned outright; that the question is not how the party lived, but whether she has deter- to Manning v. Leighton, 24 L.R.A. 684.

This note is supplementary to the note mined to make the place her home. Mc

These notes do not include cases involv. Clintock v. McClintock, 147 Ky. 409, 39 L.R.A.(N.S.) 1127, 144 S. W, 68.

In 'this ing conflict between different administrators case it was held that a wife who left her who have been appointed in different jurishusband because of cruel treatment and dictions, as to the right to administer upon went to another county, having no home

particular assets. of her own to which to go, might acquire a residence in such county, although she

Necessity for assets. did not go to housekeeping, but merely Unless a statute so requires, the possesstopped with a relative.

sion of an estate by a resident decedent is Under a statute providing that the peti. not a prerequisite to jurisdiction for the tioner in a proceeding for divorce from bed appointment of an administrator. Holburn and board until the parties are reconciled,' v. Pfanmiller, 114 Ky. 831, 71 S. W. 940;

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