Fox v. Hicks
| Decision Date | 16 August 1900 |
| Docket Number | 12,077 - (216) |
| Parties | JOHN T. FOX v. HENRY G. HICKS |
| Court | Minnesota Supreme Court |
John T. Fox, as administrator of the estate of Ethel Vanderworker deceased, petitioned the probate court for Hennepin county for an order requiring Henry G. Hicks, as executor of the will of John Vanderwarker, deceased, to pay to him a legacy bequeathed in the will to the petitioner's intestate. From an order granting the petition, the executor appealed to the district court for that county. In the district court the case was tried before Harrison, J., who made findings of fact, and as conclusion of law found that the petition should be dismissed. From an order denying a motion for a new trial the petitioner appealed to the supreme court. Reversed.
Domicile -- Minor Child of Divorced Parents.
When a divorce has been granted to the wife, and unrestricted custody of the minor child of the marriage given her in the decree, her domicile establishes that of the child.
Domicile -- Heirs of Child.
Upon the law of the domicile of such minor child at the time of its death depend the inheritance rights of its heirs.
Vested Legacy.
Where a specific legacy is set apart from an estate for a minor legatee, to be given at a time in the future, as under the terms of the will in this case, such legacy is vested; and the fund designated therein should be segregated from the estate, and, upon the death of the legatee before its receipt, descends to her heirs.
Geo. D Emery, for appellant.
The decree of divorce expressly gave the mother custody and control of Ethel and in effect constituted her the guardian of the child. Deering, Civ. Code (Cal.) §§ 197, 198, dispose of any rights which the father might otherwise claim. Having the control and custody, the right to fix the domicile of the child must be necessarily hers. The divorce transferred all the father's parental rights to the mother. Wilkinson v. Deming, 80 Ill. 342. To effect a change of domicile there must be both an actual residence and intent to remain there. Magowan v. Magowan, 57 N.J.Eq. 322. The party entitled to the custody of the child has the right to determine and change its domicile. Deering, Civ. Code (Cal.) § 213; Brightly, Purdon's Dig. (Pa.) 1154; Townsend v. Kendall, 4 Minn. 315 (412), 322; Burritt v. Burritt, 29 Barb. 124. The mother's domicile was its domicile in absence of evidence of contrary intent. People v. Dewey, 23 Misc. (N.Y.) 267. A parent entitled to custody of a child has a right to change his residence, subject to the power of the court to restrain a removal which would prejudice the child. Deering, Civ. Code (Cal.) § 213. This is declaratory of the law. Brightly, Purdon's Dig. (Pa.) 1154; Townsend v. Kendall, supra; Burritt v. Burritt, supra. The subsequent marriage of the mother in no way affected her powers or duties as guardian or the status of the child. G.S. 1894, § 4542; Deering, Civ. Code (Cal.) § 255. The rights of the parties in divorce proceedings as to custody, support, services, and duty of maintenance of minor children should be determined therein. Burritt v. Burritt, supra; Husband v. Husband, 67 Ind. 583; G.S. 1894, § 4802.
The guardian has a right to change the domicile of the child, even to another state, the interest of the child being the sole object to which the court will look. Pedan v. Robb, 8 Ohio 227; Wood v. Wood, 5 Paige, Ch. 596; Story, Conf. Laws, § 506; 2 Kent, Com. 227, note b; Corrie v. Corrie, 42 Mich. 509. The decree ipso facto takes away all control of the father. Wilkinson v. Deming, supra; People v. Dewey, supra; Marvin v. Foster, 61 Minn. 154. The decree of a court of a foreign state fixing the status of the parties and minor children is binding in this state. People v. Allen, 40 Hun, 611; Wakefield v. Ives, 35 Iowa 238; Townsend v. Kendall, supra. A judicial award of children to the mother should be presumed to carry with it a transfer of parental duties as well as parental rights. Brow v. Brightman, 136 Mass. 187; Stanton v. Willson, 3 Day, 37. The rulings of some of the courts of England and even of this country, upon the effect of marriage of the mother during her guardianship and as to the rights of the father, have been the result of peculiar statutory provisions or else of the common-law view of the status of the wife, and are becoming obsolete. There was ample evidence of the change of domicile and of its being fixed in Pennsylvania at the time of the child's death.
The court erred in finding that it was the intention of testator that Ethel should take only a contingent legacy, and the legacy never became vested in her. The estate vested and passed immediately on the death of testator, its enjoyment only being postponed, and at her death it vested in her heirs. The intention of testator as gathered from the entire will is what the court will seek to ascertain, and the law is strongly in favor of the immediate vesting of estates. An estate created by will vests immediately on the death of testator, unless intention to make it contingent only unequivocally appears. Scofield v. Olcott, 120 Ill. 362, 371; 2 Redfield, Wills, *157, *218, *220, *260; Bayard v. Atkins, 10 Pa. St. 15, 17; Doe v. Considine, 6 Wall. 458, 475; Collins v. Metcalfe, 1 Vern. 461; Saunders v. Vautier, Cr. & Ph. 240, 247; 2 Redfield, Wills, *221, *234, *236, *251; McCartney v. Osburn, 118 Ill. 403; Bredell v. Collier, 40 Mo. 287; Huber v. Donoghue, 49 N.J.Eq. 125; Littles Appeal, 81 Pa. St. 190; Clarkson v. Pell, 17 R.I. 646; Robinsons Estate, 149 Pa. St. 418; Sellers v. Reed, 88 Va. 377; Ingraham v. Ingraham, 169 Ill. 432; McArthur v. Scott, 113 U.S. 340, 375; Hawkins, Wills, 225, 226; Phipps v. Ackers, 9 Cl. & F. 583; Furness v. Fox, 1 Cush. 134; Eldridge v. Eldridge, 9 Cush. 516; Guyther v. Taylor, 3 Ired. Eq. 323, 327; Duffield v. Duffield, 1 Dow & Cl. 268, 311; Howe v. Hodge, 152 Ill. 252; Healy v. Eastlake, 152 Ill. 424; Weatherhead v. Stoddard, 58 Vt. 623; Zartman v. Ditmars, 37 App.Div. (N.Y.) 173.
The intention of testator to give a vested estate is apparent from many incidents: (a) from the use of the words "I give, devise and bequeath;" (b) from the fact that no bequest over is made in case of Ethel's death before reaching twenty-one; (c) from the language of the residuary clause which conveys the residue to trustees for the use of Henry, "after paying the * * * foregoing bequests;" (d) from the fact that the legacy is made payable to her absolutely when she arrives at thirty; (e) from the direction to pay the interest when she reaches twenty-one and annually thereafter; (f) from the language of the will in requiring the principal, after payment of accumulations at twenty-one, to "remain invested for her benefit"; (g) by the direction to sever the fund from the estate and set it apart in a particular class of securities "for her benefit," to be paid over to her absolutely at a given time; (h) from the comparison with the provisions made for the care and disposition of the "residue" and its payment over to Henry when he shall reach forty, if in the opinion of the executors he shall have become a man of proper habits, etc.; (i) it was so declared to, and understood by, the father. Wardwell v. Hale, 161 Mass. 396; Sawyer v. Cubby, 146 N.Y. 192; Manice v. Manice, 43 N.Y. 303, 369; Smith v. Edwards, 88 N.Y. 92, 106; Murtha v. Wilcox, 47 App.Div. (N.Y.) 526; Warner v. Durant, 76 N.Y. 133; Patterson v. Ellis, 11 Wend. 260, 269; Fonnereau v. Fonnereau, 1 Ves. Sr. 118; Cave v. Cave, 2 Vern. 508; 2 Redfield, Wills, *251, and note 123; Hone v. Van Schaick, 20 Wend. 564; Van Wyck v. Bloodgood, 1 Brad. Sur. 154; Beach, Wills, § 177; Mumford v. Rochester, 4 Red. Sur. 451; Hanson v. Graham, 6 Ves. Jr. 239; Toner v. Collins, 67 Iowa 369, 374; Duffield v. Duffield, supra; Linton v. Laycock, 33 Oh. St. 128, 134; In re Estate of Rogers, 94 Cal. 526, 529; Greet v. Greet, 5 Beav. 123, 128; Lister v. Bradley, 1 Hare, 10; In matter of Rouses Estate, 9 Hare, 649; Saunders v. Vautier, supra; Furness v. Fox, supra; 1 Jarman, Wills (5th Ed.) *837.
Where a legacy is given absolutely, but the time of payment is deferred, the legacy vests on the death of testator, even though the legatee may die before the time of payment; for in such cases the time of payment is not regarded as of the substance of the gift. Zartman v. Ditmars, supra; Patterson v. Ellis, supra; Loder v. Hatfield, 71 N.Y. 92; Nelson v. Russell, 135 N.Y. 137; Fuller v. Winthrop, 3 Allen, 51; Eldridge v. Eldridge, supra; Smith v. Edwards, supra; Traver v. Schell, 20 N.Y. 89; Everitt v. Everitt, 29 N.Y. 39; Warner v. Durant, supra; Gott v. Cook, 7 Paige, Ch. 521, 534; Frost v. McCaulley, 7 Del. Ch. 162.
The legacy, being personal property, had its situs at the domicile of Ethel at the time of her death, and descends according to the law of her then domicile. Jacobs, Dom. § 42. On her death the legacy became at once payable to her representatives. Toner v. Collins, supra; Millards Appeal, 87 Pa. St. 457; Furness v. Fox, supra; Eldridge v. Eldridge, supra; Farnam v. Farnam, 53 Conn. 261; Borastons Case, 3 Coke, 16; Hanson v. Graham, supra.
Wilbur F. Booth, for respondent.
The descent and distribution of personal property depends on the domicile of the intestate. The domicile of a child is the domicile of the father, so long as he is living. The separation of man and wife, where the care and custody of the child is with the wife, nevertheless does not change the domicile of the child. 5 Am. & Eng. Enc. 861-875; Jacobs Dom. §§ 235-237; Von Hoffman v. Ward, 4 Red. Sur. 244; Cannons Estate, 15 Pa. Co., 312; Blumenthal v. Tannenholz, 31 N.J.Eq. 194; Guier v. O'Daniel, 1 Binn. 349; Town v. Town, 19 Conn. 229. While for the purpose of divorce a married woman may...
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