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and then purchased residence property, and ! vestments in California out of her surplus removed their household effects and personal proceeds, but retained her property interests belongings from Portland to Pasadena. Mr. and business of all kinds in Oregon as bad Reed's health growing worse, he died in Pas- been done by her husband. In numerous and adena in 1893, and Mrs. Reed brought the body sundry documents executed by her she deto Portland where it was buried in Riverview clared herself to be a resident of Oregon temCemetery. During his absence from Port- porarily residing in Pasadena, and in her land, Mr. Reed made no material change in will, which was several times changed and his business affairs, retained his residence revised, she invariably made the same declaproperty and large holdings in lands and city ration of herself. By the terms of her will, property and his investments and securities in after making bequests to divers persons this state, kept his bank account and deposits, amounting to $230,000 and disposing of severhis office and agent here to attend to his busi- al small articles of personal property, she

lle also retained his connection as a devised and bequeathed the remainder of her director in several Oregon corporations, and property for some 17 different charitable and his position as a member of the water com- literary purposes, the recipients of her bounty mittee of l'ortland and his fraternal aflilia

all being Portland institutions except three, tions. IIe never voted in California, nor as- and only one of them was in Pasadena. The sumed any of the duties and obligations of bulk of her property was devoted to the its citizenship. · The taxes on his personal | founding and maintenance at Portland “of property, except, perhaps, such as he used | an institution of learning, having for its obfor his immediate comfort and convenience, ject the increase and diffusion of practical were paid in Portland and not in California.

knowledge among the citizens of said city of Save and except his bare residence in Pasa- Portland, and for the promotion of literature. dena, Portland was the center of his affairs, science, and art," to be known as the "Reed and they remained unchanged as to his busi- Institute,” in memory of her husband. She ness connection and civic obligations and du- appointed a resident of Portland executor of ties. Mr. Reed left a will devising and be- her will, and residents of that city trustees queathing all his property, except some real to carry out its objects. The court below estate in Massachusetts, to his wife, and sug- held that the legal domicile of Mrs. Reed was gested therein that "feeling as I do a deep in- in Oregon at the time of her death, and her terest in the future welfare and prosperity of Will was entitled to probate here. From this the city of Portland, Oregon, where I have decree the contestants appeal. spent my business life and accumulated the

James A. Gibson and W'. M. Gregory, for property I possess, I would suggest to my wife that she devote some portion of my es

appellant. Joseph Simon, Wm. P. Lord, and

Martin L. Pipes, for respondent. tate to benevolent objects or to the cultivation, illustration or development of the fine arts of said city of Portland, or to some other

BEAN, C. J. (after stating the facts). This suitable purpose, which shall be of permanent contest arises out of the desire of a number of value and contribute to the beauty of the

the heirs of Mrs. Reed to divert and circumcity and to the intelligence, prosperity and

vent her manifest intention and desire as to happiness of its inhabitants."

the disposition. of her property by availing On November 18, 1895, Mrs. Reed petitioned themselves of the provisions of a statute the probate court of Multnomah county for

of California which makes void any devise administration upon the estate of her hus

or bequest for charitable uses in excess of band, reciting and stating in such petition

a certain proportionate share of the estate that she was a resident of Portland. She was

of the deceased. 2 Kerr, Cyc. Code, § 1313. appointed executrix, and thereafter settled To accomplish this purpose they assert that up the estate. She returned to California,

Mrs. Reed was domiciled in California, and and for a time lived in the residence former- the disposition of her property was subject ly occupied by herself and husband. Some to its laws. The case, therefore, depends two or three years later she built a dwelling upon the single fact whether Mrs. Reed's at Carmelita, Pasadena, on property purchas- domicile at the time of her death was in Ore. ed by her husband, and on which he had con- gon or in California. To make out their case, templated building. She continued to reside the contestants are bound to establish, either there until her death, making frequent visits (1) that Mr. Reed changed his domicile, and to Portland. She made no change in the man

by virtue of the marital relation, the domiagement of the business or the property, real cile of Mrs. Reed, from Portland to Pasadena; or personal, to which she suceeeded,' except or (2) that, if his domicile remained at l'ortto have her husband's name removed from land unchanged, Mrs. Reed, after his death, the office door and hers placed thereon. She and when she became competent to choose retained her church connection in Portland, and acquire a new domicile, changed her and made regular contributions for its sup- domicile from Portland to Pasadena. Domniport and to its charities. She kept her office, cile is difficult of accurate definition and the agent, bank account, and deposits tbere, ex- opinion has been expressed by many judges cept a small amount from time to time to and writers that the term cannot be successmeet her current expenses. She made no in- fully defined so as to embrace all its phases.

WINCH

Mr. Justice Shaw says: "No exact definition nition of domicile as we are with the law can be given of domicile; it depends upon no regulating a change of domicile when once one fact or combination of circumstances, but acquired. It is shown by the evidence and from the whole taken together it must be admitted by the contestants that Mr. and Mrs. determined in each particular case." Thorn- Reed were domiciled in Oregon from 1851 dike v. Boston, 1 Metc. (Mass.) 212. Vice to 1892-a period of nearly 10 years--and Chancellor Kindersley observes: "With re- this domicile is presumed to have continued spect to these questions of domicile, there until it is shown that a new one was estalis no precise definition of that word, or any lished, in intent and in fact, hy indicating and formula laid down by the application of (arrying into effect an intention to abandon which to the facts of the case it is possible the Oregon domicile, and to establish another at once to say where the domicile may be." in California. Every person is assumed by Cockrell v. Cockrell, 25 L. J. Ch. (X. S.) the law to have one domicile and one only. 730, 731; Id., 2 Jur. (X. S.) 727. Lord Chan2

And when this is shown to exist, it is precellor IIatherley declined to "add to the many sumed to continue until not only another ineffectual attempts to define" the term. residence and place of abode are acquired, l'any v. t'any, L. R. 1 Sc. & Div. App. 141, but until there is an intention inanifesteri 419. Vír. Jacobs and Mr. Dicey have both and carried into execution of abandoning the devoted many pages to a discussion of domi- original domicile and acquiring another by cile and they cach point out the variety of actual residence; and the burden of proof attempts to define it, and how futile have is upon the party who asserts the change. heen the efforts. Jacobs, Domicile, $ 50 et 10 Am. & Eng. Enc. Law (20 Ed.) 3b), p. 14; seq.; Dicey, Conflict of Laws, p. 79.

3 Cyc. 565; Caldwell v. Pollak, 91 Ala. 35.. "Domicile,” strictly speaking, is the rela- 8 South. 546; Dupuy v. Wurtz, 53 N. Y. tion the law creates between an individual 556; Ennis et al. v. Smith et al., 14 How. and a particular place or country, and each 400, 123, 1+ L. Ed. 472; Islam y. Gibbons, 1 (ase is dependent upon its own particular Bradf. (N. Y. Sur.) 69; Aikman v. Aikman, facts. It is not in a legal sense synonymous 3 Macq. 852, 877; Wanzer Lamp Co. 1. with "residence." A person may have more Woods, 13 Ont. Pr. R. 511. than one residence and more than one home. Now, the principal fact upon which the in the ordinary acceptance of those terms, contestants rely to show a change of domibut he can have only one domicile, and the cile was the removal of the Reeds from Portlaw requires that for the purpose of the land to Pasadena in 1892, and the residence succession of his property he be domicile of Mr. Reed there until his death three years somewhere. The word "home" is undoubted- later and Mrs. Reed's residence thereafter ly the fundamental idea of domicile tlough until her death in 1901. But residence alone calling a place "home" as a matter of fact is not sufficient for the purpose'. Residenc. may not be and often is not entitled to much and domicile are not interchangeable terms. weight. Jacobs, Domicile, $ 72. To C011

Domicile embraces more than mere residence. stitute domicile there must be both the fact Residence denotes a place of abode, whether of a fixed habitation or abode in a particu- temporary or permanent; while

while domicile lar place, and an intention to remain there denotes a fixed and permanent home, and permanently or indefinitely; or, as Mr. Whar- need not be the actual place of abode. It ton says: “There must be: (1) residence, does not depend upon mere naked residence. actual or inchoate; (2) the nonexistence of but “is the legal, the juridical seat, of every any intention to make a domicile elsewhere." person,—the seat where he is considered to Wharton, Conflict of Laws, $ 21. Domicile, be in the eyes of the law, for certain applitherefore, is made up of residence and in- (ations of the law, whether he be corporeally tention. Neither, standing alone, is suffi- found there, or whether he be not foundi cient for the purpose.

Residence is not

there." Jacobs, Domicile, $ 63. This disenough, except as it is co-joined with intent. tinction is clearly recognized in the authoriwhich determines whether its character is ties. permanent or temporary; and clearly a mere In Drevon v. Drevon, 34 L. J. (N. S.) Ey. intent cannot create a domicile. Mr. Dicey 129, Vice Chancellor Kindersley, who has says: "The domicile of any person is, in considered the subject of domicile in a numgeneral, the place or country which is in ber of cases, says with much force: "For fact his permanent home, but is in some cases example, the first act generally brought forthe place or country which, whether in fact Ward, and, of course, which is brought forhis home or not, is determined to be his home ward and relied upon in this case, is length by a rule of law.” Dicey, Conflict of Laws, of residence. Length of residence has in p. 79. This is considered by Mr. Jacobs, with, many cases, both by English and hy foreign perhaps, one change, to be as nearly ac- jurists, been considered a very important incurate a definition as has been given. Jacobs, gredient in the question, and, in other reses, Domicile, 67.

it has been considered as of little importance; But we need not pursue this branch of the that is, as compared with and brought into question further. We are not so much concern- connection and contact with other circumed at this time with the correct techuical deti- stances, of which evidence is given in the

case. I think, with regard to that point, the true conclusion is this, not that any one act or any one circumstance is necessarily per se of vast importance and other circum. stances of little importance, but it is a question what is the relative importance of the different acts, whether some acts tending one way are of greater weight than those tending the other as to the animus manendi or the animus revertendi, or the animus as to changing domicile."

And Lord Chelmsford says in Moorhouse v. Lord, 10 H. L. C. 272: “In a question of charge of domicile the attention must not be too closely confined to the nature and character of the residence by which the new domicile is supposed to have been acquired. It may possibly be of such a description as to show an intention to abandon the former domicile; but that intention must be clearly and unequivocally proved."

So, also, in Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502, the court say: "A person may have two places of residence, for purposes of business or pleasure. But, in regard to the succession of his property, as he must have a domicile somewhere, so he can have only one. It is not very uncommon for wealthy merchants to have two dwellinghouses, one in the city and another in the country, or in two different cities, residing in each a part of the year. In such cases, looking at the domestic establishment merely, it might be difficult to determine whether the domicile was in one place, or the other.

If any general rule can be applied to such cases, we think it is this: That the domicile of origin, or the previous domicile shall prevail. This is in accordance with the general doctrine, that the forum origines remains until a new one is acquired. And this would generally be in harmony with the other circumstances of each case."

And, again, in Tipton v. Tipton, 87 Ky. 245, 8 S. W. 440 it is said: "There is a broad distinction between a legal and actual residence. A legal residence (domicile) cannot, in the nature of things, coexist in the same person in two states or countries. He must have a legal residence somewhere. He cannot be a cosmopolitan. The succession of movable property, whether testamentary or in case of intestacy, except as regulated by statute, the jurisdiction of the probate of wills, the right to vote, the liability to poll tax, and to military duty, and other things, all depend upon the party's legal residence or domicile. For these purposes, he must have a legal residence. The law will, from facts and circumstances, fix a legal residence for him, unless he voluntarily fixes it himself. His legal residence consists of fact and intention. Both must concur. And when his legal residence is once fixed, it requires both fact and intention to change it. As contradistinguished from his legal residence, he may have an actual residence in another state or country. He may abide in the latter

without surrendering his legal residence in the former, provided he so intends. His legal residence, for the purposes above indicated, may be merely ideal, but his actual residence must be substantive. He may not actually abide at his legal residence at all, but his actual residence must be his abiding place.”

So, in Long v. Ryan, 30 Grat. (Va.) 718, the court say: “There is, however, a wide distinction between domicile and residence recognized by the most approved authorities everywhere. 'Domicile' is defined to be a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. To constitute a domicile, two things must concur--first, residence; secondly, the intention to remain there. Domicile, therefore, means more than residence. A man may be a resident of a particular locality without having his domicile there. He can have but one domicile at one and the same time, at least for the same purpose, although he may have several residences."

And, again, in Stout v. Leonard, 37 N. J. Law, 492, it is said: "Residence is not domicile though domicile is the legal conception of residence. Domicile is residence combined with intention. It has been well defined to be a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. A man can have but one domicile for one and the same purpose at any one time, though he may have numerous places of residence. His place of residence may be, and most generally is, his place of domicile, but it obviously is not by any means necessarily so, for no length of residence without the intention of remaining will constitute domicile."

Other decisions might be referred to to the same effect, but these are sufficient to show the distinction between residence and domicile, and that mere change of residence is not of itself proof of a change of domicile unless accompanied by an intention, expressed or implied, to abandon the old domicile and acquire a new one. Within the principle of law declared in the decisions, a person may reside for pleasure or health in one place without forfeiting or surrendering his domicile or legal residence in another, if he so intends. It is not residence alone, but it is the intention of the person, expressed or implied from the facts in evidence, conjoined with residence, that determines domicile. Every person sui juris and capable of controlling his personal movements may change his domicile at pleasure, but a change of domicile involves intention as the dominant factor.

To constitute a change of domicile three things are essential: (1) Residence in another place; (2) an intention to abandon the old domicile; and (3) an intention of acquiring a new one; or, as some writers express it, there must be an animus non revertendi and an animus manendi, or animus et factum. Berry v. Wilcox (Neb.) 62 N. W. 249, 48 Am. St. Rep. 706; Hayes v. Hayes, 74 Ill. 312, 316; Jopp v. Wood, 34 L. J. (N. S.) Eq. 212; Moorhouse v. Lord, 10 H. L. C. 272. The factum is the transfer of the bodily presence and the animus is the intention of residing permanently, or for an indefinite period. A change of domicile, therefore, involves a question of fact and intent. The fact is easily proved because it is shown by the mere transfer of the bodily presence from the old to the new place of abode, but the intent with which the change is made is to be determined from the character of the residence, its object and purpose, in connection with the other evidence in the case. Residence in a particular place is a fact obvious to the senses and cannot be easily mistaken, but its value in fixing domicile is unimportant unless accompanied with an intent of remaining permanently or indefinitely, or, as it is sometimes said, with no present intent of removing therefrom. Residence alone, however long continued, will not effect a change of domicile. On this point the authorities speak with practically one voice. In Jopp v. Wood, 4 DeG. J. & S. 616, Turner, L. J., says: "Though the residence may be decisive as to the factum, it cannot. when looked at with reference to the animus, be regarded otherwise than as an equivocal act. The mere fact of a man residing in a place different from that in which he had been before domiciled, even though his residence there may be long and continuous, does not of necessity show that he has elected that place as his permanent and abiding home. He may have taken up and continued his residence there for some special purpose, or he may have elected to make the place his temporary home.' And Mr. Justice Rapallo says in Dupuy v. Wurtz, 53 N. Y. 556, 561: "One leading rule is that for the purposes of succession every person must have a domicile somewhere, and can have but one domicile and that the domicile of origin is presumed to continue until a new one is acquired. * * * To effect a change of domicile for the purpose of succession there must be not only a change of residence, but an intention to abandon the former domicile, and acquire another as the sole domicile. There must be both residence in the alleged adopted domicile, and an intention to adopt such place of residence as the sole domicile. Residence alone has no effect per se, though it may be most important, as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicile.”

The animus or intent is, therefore, as essential to a change of domicile as the fact of residence. To lose a domicile when once ac

quired, there must be an intention to do so. A mere change of the place of abode, however long continued, is not sufficient, unless the proper animus or intention is present. This intention, it is true, may be inferred from circumstances, and the residence may be of such a character and accompanied by such indices of a permanent home that the law will apply to the facts a result contrary to the actual intention of the party. Thus one cannot make a permanent fixed commercial residence with all the surroundings of a permanent home in one place and a domicile in another by a mere mental act. But a residence for mere pleasure or health is not regarded as of any great weight in determining the question of a change of domicile, for, in such case it is just as likely that the party intends to retain as to abandon his present domicile. The books abound in cases where absences for 20, 30, and even 40 years effect no change of domicile. White v. Brown, 1 Wall. C. C. 217, Fed. Cas. No. 17,538; Re Domingo Capdevielle, 10 Jur. 1155; Jopp y. Wood, 4 DeG. J. & S. 616. Hodgson v. Beauchesne, 12 P. C. 285; Cruger v. Phelps, 21 Misc. Rep. 252, 47 N. Y. Supp. 61. And Sir John Dodson says in Bremer v. Freeman, 10 Moore, P. C., 306: “A person may live 50 years in a place, and not acquire a domicile, for he may have had all the time an intention to return to his own country." And Mr. Jacobs says: “Residence of itself, although decisive of the factum necessary for a change of domicile, is decisive of nothing further, and even when long continued, although per se evidence of intention, will not supply its place. * * * Intention must concur with fact, and must clearly appear. On the one hand, the shortest residence is sufficient if the requisite animus be present, and, on the other, the longest will not suffice if it be absent.” Jacobs, Domicile, $ 136.

The residence of Mr. and Mrs. Reed at Pasadena admittedly was for health and pleasure, and not business. It was, therefore, not of that permanent commercial or business character which will in law constitute a change of domicile regardless of the intention of the parties. Nor was it of such a character as will overcome the presumption that their former domicile at Portland continued. We must, therefore, look to the evidence to ascertain whether in fact they intended to abandon their Portland domicile and acquire a new one in California, and in doing so it is important to bear in mind their situation at the time of their removal, the causes which prompted it, its purpose and the place to which they removed. Mr. Reed was in failing health and had been compelled to cease active participation in his business affairs. It was necessary, as he thought, and as he was advised by his physicians, to seek a more collgenial climate than that of Oregon. For this purpose he visited California, and, after examining several places or localities, finally selected Pasadena, which, as one of the wit

nesses testified, is "a health resort.A large, change of residence of Captains Thompson part of its population "come there and away and Ainsworth, Mr. Reed had spoken of that, again"; "two-thirds of it was temporary." and stated that their permanent home was "The temporary class is composed largely of in Oregon"; that he frequently visited Mrs. people who come in search of health." Reed at Pasadena professionally at her rethis character of a location Mr. and Mrs. quest, and on several occasions suggested Reed moved, because its climatic conditions that it might be better for her to consult and general surroundings would, it was some resident lawyer and offered to recomthought, conduce to their personal comfort mend some one for that purpose, but that and the improvement of Mr. Reed's health. she invariably replied: "'I don't wish to do They did not make any investments in Pasa- that. It is so hard to make people here un

. dena except such as seemed to them necessary derstand that I do not belong here. My infor their comfort and pleasure. Mr. Reed terests, what I have, my affections'-I

my did not dispose of his Portland property, or would not be sure that she said my homemake any change in his business affairs. He but that was the significance of it, was in retained his office and bank account in Port- Oregon and not in California”; that he had land, and his entire conduct negatives an in- many conversations with her with regard tention to abandon his Portland domicile or to to the disposition on the part of the people acquire another. Mr. Reed's health did not

of Pasadena to induce her to aid in public improve, and he died in 1897, derising and be- charities and enterprises, and that on more queathing his property to his wife. Mrs. than one occasion she told him that “they Reed continued to reside in Pasadena as be

did not understand and that she was not fore, without making any change in her busi

interested in those things, not belonging to ness affairs or indicating in any way a pur

them, or not belonging there, but in Oregon. pose to change her domicile. She continued She put California, or Pasadena, and Porther church connection in Portland, making

land, Ougon in juxtaposition a good many regular contributions for its support and to

times and principally in urging her objection its Charities. She described herself in numer

to having an adviser there, and transferring a oils documents and in her will as a resident portion of her business there, and it came up of Portland temporarily residing at Pasadena,

in regard to her bank account, as to having a and the very terms of the will itself indicate

bank account or an office there, she always that she considered Portland as her home,

answered that her office was here and her and entitled to receive her charitable be

business was here, and her affections were

here"; that she always spoke of Oregon as quests. The acts of Mr. and Mrs. Reed, and

her home, and so far as her intentions were the undisputed facts surrounding and charac

concerned he never had a suspicion that it terizing their removal from Portland to Cali

was claimed by anybody that Portland was fornia, and their subsequent residence in

not her permanent home; that every expresPasadena, show to our minds quite clearly

sion of hers to him, whether drawn out for that they at all times deemed and considered their residence there as temporary rather

the purpose of obtaining information from a

legal standpoint, or in a social way, was to than perinanent, and that Portland was their

that effect. legal domicile. The decided weight of the

Mr. James Patterson, a resident of Pasatestimony as to their purposes as declared by

dena, who became acquainted with and frethem is to the same effect.

quently visited the Reeds after their removal Mr. C. A. Dolph, who was the legal and

to that city, testified that Mr. Reed was reconfidential adviser of Mrs. Reed after the

garded as a temporary resident, and that death of her husband, and wlio, perhaps, had

he came to Pasadena for his healtlı; that a better opportunity to know her real inten

after Mr. Reed's death Mrs. Reed frequently tion than any other witness in the case, tes

referred to Oregon as her home, and that on tified that he had numerous conversations

one occasion he suggested to her that she with Mrs. Reed regarding the place of her had lived in Pasadena long enough to bepermanent residence and that on every oc- come a Californian and she replied: "Oh, casion when the subject came up she inva- no! I will never become a Californian. Oreriably gave it as Portland, and by her instruc- gon is my home. I was raised there and tions she had been so described in the differ

grew up with the country.” ent wills that he had prepared for her; that Miss Stevens, who was the maid of Mrs. when he came to prepare the petition for the Reed from January, 1900, to October, 1902, probate of Mr. Reed's will in November, 1895, testified that Mrs. Reed always spoke of he inquired of Mrs. Reed as to her permanent | Portland as her home, and when they were residence because she was to verify the pe- planning to make visits to Oregon as they tition, and he knew Mr. Reed had been away frequently did, Mrs. Reed would say: "Well, from Portland a good deal for several years we are going home this summer"; that in prior to his death, and at that time Mrs. April, 1904, she told witness that her phyReed told him distinctly that Portland was sician thought that the climate at Pasadena their permanent residence and that "they did not agree with her, and that it might be had always claimed Portland as their home, necessary for her to make a change, and she that the matter had been incidentally dis- said: “If so, I will go back to my home in cussed with relation to the removal or Portland."

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