In re Estate of Jones

• Decision Date: 07 April 1921
• Docket Number: 33508
• Citation: 182 N.W. 227,192 Iowa 78
• Parties: IN RE ESTATE OF EVAN JONES. MARGARET ADAMS, Appellant, v. J. J. SMITH, Administrator, et al., Appellees
• Court: Iowa Supreme Court

182 N.W. 227

192 Iowa 78

IN RE ESTATE OF EVAN JONES. MARGARET ADAMS, Appellant, v. J. J. SMITH, Administrator, et al., Appellees

No. 33508

Supreme Court of Iowa, Des Moines

April 7, 1921

REHEARING DENIED OCTOBER 1, 1921.

Appeal from Wapello District Court.--C. W. VERMILION, Judge.

PLAINTIFF claims that she is the illegitimate child of the decedent Evan Jones, and as such is his sole heir, and entitled to his entire estate. The administrator of the estate is made a party, and also the brothers and sisters of the said decedent, who claim that the estate of the decedent descends to them. The court denied the plaintiff the relief sought and she prosecutes this appeal.

Reversed.

Jaques & Jaques and Gillies & Daugherty, for appellant.

J. J. Smith and Roberts & Webber, for appellees.

FAVILLE, J. EVANS, C. J., STEVENS, ARTHUR, and DE GRAFF, JJ., concur.

OPINION

FAVILLE, J.

The decedent, Evan Jones, was a native of Wales. When he was about 33 years of age, he came to America as an immigrant. This was in 1883. He came over on the same ship with the wife and children of one David P. Jones. At that time, David P. Jones was living in Oskaloosa, Iowa, to which place the decedent went. After the death of David P. Jones, the decedent married his widow, who subsequently died, in January, 1914. The decedent, Evan Jones, was a coal miner, an industrious, hard-working, thrifty Welshman, who accumulated a considerable amount of property. In 1896, he was naturalized in the district court of Wapello County, Iowa, and thereafter voted at elections. The reason for his leaving Wales at the time he did was because of bastardy proceedings which had been instituted against him by the mother of the appellant. In 1915, the decedent disposed of his property, which then consisted of two farms and some city real estate. He was advised by his banker to leave the greater part of his money in a bank at Ottumwa until he got to Wales, and did so deposit it. He purchased a draft for about $ 2,000, and left some $ 20,000 on deposit in the bank, and also a note and mortgage for collection, and left with the banker the address of a sister in Wales, stating that he intended to live with said sister. He sailed from New York on May 1, 1915, on the ill-fated Lusitania, and was drowned when that boat was sunk by a German submarine on May 7, 1915. The Lusitania was a vessel of the Cunard line, flying the British flag. Thereafter, the brothers and sisters of the decedent secured the appointment of an administrator in Wapello County, Iowa. Various proceedings were had, which finally resulted in the trial of the issues in this cause.

I. The question for our determination in this case is whether or not, under the facts stated, the domicile of the decedent at the time of his death was in Wapello County, Iowa, or in Wales. If his domicile at the time that the Lusitania sank was legally in Wales, then it is conceded by all the parties that, under the laws of the British Empire, the appellant, as his illegitimate child, would have no interest in his estate. On the other hand, if the decedent at said time legally had his domicile in Wapello County, Iowa, then the property passed to the appellant as his sole heir, under the laws of this state.

For the purposes of the present discussion, it may be conceded that the evidence is sufficient to justify a finding that the appellant was the child of the decedent, and had been so recognized and declared to such an extent as to satisfy the requirements of Code Section 3385.

It may also be conceded, for present purposes, that it is established by the evidence in the case that the decedent had, by acts and declarations, evidenced a purpose to leave his home in Iowa permanently, and to return to his native country, Wales, for the purpose of living there the remainder of his life.

The question of what constitutes domicile has often been passed upon by the courts, but the cases are so unlike in their facts that precedents to aid us in the determination of this precise question are difficult to find.

In White v. Brown (Pa.), 29 F. Cas. 982 (No. 17,538), Mr. Justice Grier well said:

"There are few subjects presented to courts for their decision which are surrounded with so many practical difficulties as questions of domicile."

The words "domicile" and "residence" are not always synonymous at law, nor are they convertible terms. Ludlow Clark & Co. v. Szold, 90 Iowa 175, 57 N.W. 676; Mann v. Taylor, 78 Iowa 355, 43 N.W. 220; Fitzgerald v. Arel, 63 Iowa 104, 16 N.W. 712; Cohen v. Daniels, 25 Iowa 88.

A person may have his residence in one place, while his domicile is in another. In re Estate of Titterington, 130 Iowa 356, 106 N.W. 761; Fitzgerald v. Arel, supra; Cohen v. Daniels, supra; Love v. Cherry, 24 Iowa 204.

A person may have more than one residence at the same time, but can have only one domicile, at least for purposes of succession. Farrow v. Farrow, 162 Iowa 87, 143 N.W. 856; Savage v. Scott, 45 Iowa 130; Love v. Cherry, supra.

It is well settled that every person, under all circumstances and conditions, must have a domicile somewhere. Barhydt v. Cross, 156 Iowa 271, 136 N.W. 525; In re Estate of Titterington, supra.

There are different kinds of domiciles recognized by the law. It is generally held that the subject may be divided into three general classes: (1) Domicile of origin; (2) domicile of choice; (3) domicile by operation of law. Smith v. Croom, 7 Fla. 81; Louisville & N. R. Co. v. Kimbrough, 115 Ky. 512 (74 S.W. 229).

The domicile of origin of every person is the domicile of his parents at the time of his birth. In Prentiss v. Barton, (Va.) 19 F. Cas. 1276 (No. 11384), Chief Justice Marshall said:

"By the general laws of the civilized world, the domicile of the parents at the time of birth, or what is termed the 'domicile of origin,' constitutes the domicile of an infant, and continues, until abandoned, or until the acquisition of a new domicile in a different place."

The domicile of choice is the place which a person has elected and chosen for himself, to displace his previous domicile. Warren v. Warren, 73 Fla. 764 (75 So. 35); Boyd's Exr. v. Commonwealth, 149 Ky. 764 (149 S.W. 1022); Mather v. Cunningham, 105 Me. 326 (74 A. 809); Duke v. Duke, 70 N.J.Eq. 135 (62 A. 466); Price v. Price, 156 Pa. 617 (27 A. 291).

Domicile by operation of law is that domicile which the law attributes to a person, independent of his own intention or action of residence. This results generally from the domestic relations of husband and wife, or parent and child. Hindorff v. Sovereign Camp, W. O. W., 150 Iowa 185, 129 N.W. 831; In re Guardianship of Benton, 92 Iowa 202, 60 N.W. 614; Jenkins v. Clark, 71 Iowa 552, 32 N.W. 504.

In the instant case, we have to deal only with the first two kinds of domicile: that is, domicile of origin and domicile of choice. Applying these general definitions to the facts of this case, the domicile of origin of Evan Jones was in Wales, where he was born, and the domicile of choice was Wapello County, Iowa. The question that concerns us is, Where was his domicile for the purpose of descent of personal property on the 7th day of May, 1915, when the Lusitania was sunk off the western coast of the British Isles?

The matter of the determination of any person's domicile arises in different ways, and is construed by the courts for a variety of different purposes. Apparent inconsistencies occur in the authorities, because of the failure to clearly preserve the distinctions to be made by reason of the purpose for which the determination of one's domicile is being legally ascertained. The question frequently arises where it becomes important to determine the domicile for the purpose of taxation, or for the purpose of attachment, or for the levy of execution, or for the exercise of the privilege of voting, or in determining the statute of limitations, or in ascertaining liability for the support of paupers, and perhaps other purposes. Definitions given in regard to the method of ascertaining the domicile for one purpose are not always applicable in ascertaining the domicile for another purpose. Some of the courts have made the broad assertion that a person can have only one domicile. We appear to have so declared in Farrow v. Farrow, 162 Iowa 87, 143 N.W. 856; Savage v. Scott, 45 Iowa 130; Love v. Cherry, 24 Iowa 204. Other courts have declared that a person may have a domicile at one place for one purpose and at another place for another purpose. Smith v. Croom, 7 Fla. 81; Lau Ow Bew v. United States, 144 U.S. 47 (12 S.Ct. 517, 36 L.Ed. 340). Confusion has frequently arisen because of a failure to distinguish between domicile and residence.

Generally speaking, it is an established rule that a person can have but one domicile at the same time for the same purpose. In any event, it is the uniform holding that a person can have only one domicile for the purpose of descent of personal property. White v. Brown, supra; Merrill's Heirs v. Morrissett, 76 Ala. 433; Mather v. Cunningham, 105 Me. 326 (74 A. 809); Greene v. Greene, 28 Mass. 409; Isham v. Gibbons, 1 Bradf. Sur. 69; Somerville v. Somerville, 5 Ves. Jr. 750; Smith v. Croom, supra.

In the instant case, we are concerned only in the matter of the domicile of the decedent, Evan Jones, as it affects the question of the descent of his personal estate. An examination of the record satisfies us that the evidence is sufficient to amply justify a finding that the said decedent disposed of his property in Wapello County, Iowa, and converted the same into money or securities, and left Wapello County, Iowa, with the present intention of abandoning his domicile there, and without any present intention of returning thereto, and also with the...