Plummer v. Brandon

• Decision Date: 30 June 1848
• Citation: 40 N.C. 190,5 Ired.Eq. 190
• Parties: MATTHEW PLUMMER et al. v. ALEXANDER W. BRANDON.
• Court: North Carolina Supreme Court

5 Ired.Eq. 190

40 N.C. 190

MATTHEW PLUMMER et al.

v.ALEXANDER W. BRANDON.

Supreme Court of North Carolina.

June Term, 1848.

The acquisition of a new domicil does not depend simply upon the residence of the party. The fact of residence must be accompanied by an intention of permanently residing in the new domicil, and of abandoning the former--in other words, the change of domicil must be made manifest animo et facto, by the fact of residence and the intention to abandon.

The length of residence is not important, provided the animus be there. If a person goes from one country to another, with the intention of remaining, that is sufficient--and whatever time he may have lived there is not enough, unless there be an intention of remaining.

An administrator, appointed in one State, cannot sustain an action brought in his representative character in another. But where a person dies in this State, in possession of slaves, then being in this State, the administrator may sue for them in his own name and upon his own legal title, either in this or another State, though they may have been removed out of this State before administration granted.

The cases of the Governor v. Williams, 3 Ire. 154. McBride v. Cheate, 2 Ire. Eq. 613, and Whit v. Ray, 4 Ire. 14, cited and approved.

This case came on to be heard upon the exceptions to the report of the master, to whom it had been referred to take an account, &c. The nature of the exceptions will be seen in the opinion of the Court.

Francis Locke, by his will, devised to Esther Pinxston, during her life, certain shares of Stock upon the State Bank of North Carolina, and after her death to her children. Dr. Scott, the executor took said fund into his possession--and regularly received and paid the dividends over to the legatee up to the time of his death in the year 1838. Dr. Scott went to the State of Tennesse for the purpose of examining the country, with a view to a removal if he liked it, and took with him a number of slaves leaving his wife and family, a number of slaves and other property behind him, in the County of Rowan, where he had been living many years. After his death which took place in 1838 administration was duly granted in that State upon his property there and in, the year____, his widow removed to Tennesse taking with her the remainder of the negroes belonging to the estate of Dr. Scott and other property. These negroes she took with her by the consent of the defendant, who was her uncle, and to whom Dr. Scott had conveyed all said property by deeds of trust. The defendant administered on the estate of Dr. Scott, which was in this State in 1841, and Mrs. Scott took the negroes to Tennessee sometime before. Upon the hearing, an account was decreed and a reference made, with special instructions. Among others was the following. “the nature and value of the property sent by the defendant to Tennessee?? the time at which it was so sent, whether before or after the defendant took out letters of administration upon the estate of Dr. Scott. The master will further report, whether Dr. Scott at the time of his death had removed to Tennessee or was there merely making preparations to remove.”

The master made his report and several exceptions were filed by the plaintiffs.

Boyden, for the plaintiffs .

Badger and J. H. Bryan, for the defendant .

NASH, J.

The first exception is that there was no legal evidence that Dr. Scott had removed to Tennessee. The master has made no specific report upon this enquiry, and, if he intended so to do, it is to be gathered from the report on the subject of the administration granted in Tennessee. If his intention was so to report, on that point, the exception is sustained, for both the reasons assigned in the exception. There is no evidence that such was the fact and it is contradicted by the answer. Upon this subject the testimony of Mr. Stirwalt is decisive. He states that when Dr. Scott started for Tennessee, he declared he was going to Tennessee to look about, and, if pleased with the country, intended to stay or make a permament location there, and took with him eight or ten valuable negroes. His family continued to live on and cultivate the same place, where Dr. Scott had lived for many years, and continued there until the fall of 1839. Dr. Scott went to Tennessee in 1837 and died in October. 1838. The defendant in his answer states, that, at the time Dr. Scott died, he was making preparation to remove to Tennessee. Here then we have the declaration of Dr. Scott, that his going to Tennessee was not a removal there, but an exploratory trip, preparatory to a removal if he liked the country, and we have the admission of the defendant, that he was making preparation to remove at the time he died. To remove is to change one's domicil or place of permanent residence. Dr. Scott had not changed his domicil at the time of his death. When he went to Tennessee, in addition to his own declaration, we have the fact that his wife and family and a large portion of his property was left in North Carolina, where it remained until after his death. North...