Allgood v. Williams

• Decision Date: 14 January 1891
• Parties: ALLGOOD v. WILLIAMS.
• Court: Alabama Supreme Court

8 So. 722

92 Ala. 551

ALLGOOD v. WILLIAMS.

Supreme Court of Alabama

January 14, 1891

Appeal from probate court, Blount county; J. W. ELLIS, Judge.

Watts & Son, for appellant.

CLOPTON J.

Appellant was appointed in August, 1888, by the probate court of Blount county, guardian of Eva Williams, a minor, about five years of age. This proceeding is an application in the name of the ward to revoke the letters of guardianship, which the court revoked on the ground that her residence was not in Blount county, and that the court had no jurisdiction to appoint a guardian. The statute declares: "Guardians must be appointed for minors under the age of twenty-one years by the court of probate of the county in which such minor resides." Code, § 2370. Though the word "residence" is often used to signify a temporary abode, it is also used to signify a fixed and permanent home. "Residence" and "domicile" are not in all respects convertible terms; but when "residence" or "resides" is employed in a statute relating to succession, grant of administration, and of guardianship, it is generally construed to mean the legal residence, and as equivalent to "domicile." Jac. Dom. § 75. The same author observes: "In fact, the great bulk of cases of domicile reported in the American books are cases of statutory residence. This is especially true with regard to the subjects of voting, eligibility to office, taxation jurisdiction in divorce, probate, and administration, etc. With respect to these subjects, there is substantial unanimity in holding statutory 'residence to mean 'domicile."' And in Shaw v Shaw, 98 Mass. 158, in reference to the statutes regulating jurisdiction in divorce cases, it is said "The words, 'to live' and 'to reside,' in these provisions, are obviously synonymous, and both relate to the domicile of the party, or the place where he is deemed in law to reside, which is not always the place of one's present actual abode. 'To live,' 'to reside,' 'to dwell,' 'to have one's home or domicile,' are usually, in our statutes, equivalent and convertible terms." We construe the words, "of the county in which such minor resides," as used in the statute relating to the appointment of guardians, to mean the county of the minor's legal residence or domicile. Merrill v. Morrissett, 76 Ala. 433. As a general thing, the domicile of an infant child is that of the father during his life-time, following it through its changes, though they may live apart. Metcalf v. Lowther, 56 Ala. 312. An infant, not being Suit juris, has no freedom of choice, and cannot by his own act change his domicile; nor, generally, can his father, other than by changing his own. As has been said, their legal inseparability is essential to the efficiency of parental government, and to the discharge of the duties which the father owes the child, and to rendition of the service which the child owes the father. Hence, as said by GIBSON, C.J.: "The parent's domicile, therefore, is consequently and unavoidably the domicile of the child." School Directors v. James, 2 Watts & S. 568. Possibly the abandonment of his family by the father, and the emancipation of his child, may constitute exceptions to this rule; but, as these exceptions do not arise in the present case, we express no opinion as to them. Jac. Dom. §§ 236, 237. The expression of the father of the minor to his brother to take his child and raise her right, made three or four weeks before his death, did not constitute the residence of the brother the domicile of the minor. Therefore the domicile of the father, at the time of his death,...