Reynolds v. Mills

CourtUnited States State Supreme Court of North Carolina
Citation99 S.E. 240
Decision Date14 May 1919
Docket Number(No. 476.)

99 S.E. 240


(No. 476.)

Supreme Court of North Carolina.

May 14, 1919.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Domicile.]

Appeal from Superior Court, Lincoln County; Webb, Judge.

Action by J. R. Reynolds, administrator of James Seism, deceased, against the Lloyd Cotton Mills, wherein defendant petitioned to vacate plaintiff's letters of administration, which was done by the clerk of the superior court; whereupon Reynolds appealed, and the judge of the court reversed the clerk's decision, and ordered the letters to be restored, to which order defendant excepted,

[99 S.E. 241]

as it did to an order that Reynolds as administrator, under grant of letters from another county, be made a party to the action, and defendant appeals. Error.

The facts, as agreed upon, are that James Seism was, prior to June 3, 1917, domiciled in the county of Gaston, and on that date he, with his family, was riding in an automobile from said county to the county of Lincoln, in which latter place he intended to make his home, having previously contracted to work for the Lloyd Cotton Mills. He ha sent his household and kitchen furniture forward before he started on his journey, and it had arrived in Lincoln county. While he was proceeding from his home in Gaston county to the county of Licoln the automobile in which he was riding was overturned before he reached the line dividing the two counties, and he was killed in Gaston county. The case does not show that he had selected a house or place of abode in Lincoln county, where he intended to live, but only that he j left his domicile in Gaston county with the intention of residing thereafter in Lincoln county.

On application of J. R. Reynolds to the clerk of the superior court administration upon the estate of James Seism was granted to him, and letters accordingly issued, and he thereupon commenced an action in the superior court of Lincoln county to recover damages of the Lloyd Cotton Mills for alleged negligence of its servant in upsetting the automobile and killing his intestate.

The Lloyd Cotton Mills moved before the clerk to set aside the letters of administration, or withdraw them, upon the ground that they were improvidently issued, the court having no jurisdiction of the matter, as James Seism, at the time of his death, was domiciled is Gaston county, and not in Lincoln county, and that under our statute the clerk of the superior court of Gaston county had sole and exclusive jurisdiction thereof. On hearing the motion the clerk held, upon the facts above stated, that he had no jurisdiction to issue the letters, and ordered the same to be revoked; whereupon the said J. R. Reynolds appealed, and the judge of the superior court reversed the decision of the clerk, and ordered the letters to be restored. The petitioner, Lloyd Cotton Mills, duly excepted to this order of the judge.

More than one year after the death of James Seism the said J. R. Reynolds applied to the clerk of the superior court of Gaston county for letters of administration upon the estate of James Seism, and they were granted to him, and the judge of the superior court of Lincoln county on application of J. R. Reynolds, as administrator under the letters issued by the clerk of Gaston superior court, ordered him to ue made a party to the action against the Lloyd Cotton Mills, to which the defendant, Lloyd Cotton Mills, excepted, and, relying upon both exceptions, it appealed to this court.

Mangum & Woltz, of Gastonia. for appellant.

WALKER, J. (after stating the facts as above). We are of the opinion that the judge erred in reversing the order of the clerk and holding the letters of administration which had been issued by him to be valid. The statute provides, under the title "Jurisdiction of Clerk of Superior Court, " that he shall have jurisdiction, "within his county, to take proof of wills and to grant letters testamentary, letters of administration with the will annexed, and letters of administration in cases of intestacy, in the following cases: Where the decedent at, or immediately previous to, his death was domiciled in the county of such clerk, in whatever place such death may have happened." Revisal of 1905, § 16. There are other subjects of his jurisdiction enumerated, but the provision stated by us is the only one pertinent to this case.

It will be seen, therefore, that the clerk of Lincoln superior court had no jurisdiction or authority to grant the letters of administration, unless James Seism was domiciled in Lincoln county at the time of his death. The word "domicile'' has been variously defined, but its meaning may be accurately expressed as the residence of a person at a particular place, with the intention to remain there permanently, or for an indefinite length of time, or until some unexpected event shall occur to induce him to leave the same. Phillimore, Domicile, 13; Mitchell v. United States, 21 Wall. 353, 22 L. Ed. 584,. 586; Morrill v. Morrlssett, 76 Ala. 433, 437; Little-field v. Brooks, 50 Me. 475, 477; Stout v. Leonard, 37 N. J. Law, 492, 495; Matter of Steer, 3 H. & N. 594; Black's L. Diet. "Domicile." In its ordinary acceptation, a person's domicile is the place where he lives or has his home. It is distinguished from "residence" or "inhabitancy, " the three terms not being exactly convertible. Home v. Home, 31 N. C. 104. Domicile is of three sorts domicile by birth or of origin, by choice, and by operation of law. The first is the common case of the place of birth, domicilium originis; the second is that which is voluntarily acquired by a party, proprio motu; the last is consequential, as that of the wife arising from marriage. Story, Conflict of Laws, § 46, Black's Dictionary. It is universally held, and clearly so by this court, that in order to constitute a domicile by choice two essential things must concur, which are "residence" and "intent" to remain at the place for an indefinite period. Home v. Home, supra; Plummer v Brandon, 40 N. C. 190; 14 Cyc. p. 838, and note 22, where many cases are collected from nearly every state of the Union and from England and Canada.

In the Home Case it was held that two

[99 S.E. 242]

facts must concur to establish a domicile: First, residence; and, secondly, the intention to make it a home (page 99 of 31 N. C. Anno. Ed.). We will refer to this case again, more at large, as it is decisive of this one.

The court, by Chief Justice Nash, said in Plummer v. Brandon, supra:

"The acquisition of a new domicile 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 domicile, and of abandoning the former; in other words, the change of domicile must be made manifest, animo et facto, by the fact of residence and the intention to abandon. De Bonneval v. Dq Bonneval, 6 Eng. Eq. 502, 1 Curt. 856; Craigie v. Lewin, 7 Eng. Eq. 460, 3 Curt. 435. Sir Herbert Jerman Trest in the latter case says the result of all the cases is that there must be the animus et factum, and that the principle is that a domicile, once acquired, remains until another is acquired or the first abandoned, and that 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. * * * The presumption of law being that the domicile of origin subsists until a change of domicile is proved, the onus of proving the change is on the party alleging it, and the onus is not discharged by merely proving residence in another place, which is not inconsistent with an intention to return to the original domicile."

It therefore is settled that, before there can be a change of domicile, there must be not only an intent to acquire another home but that intention must be fully executed by actual residence in the new place with the purpose of remaining there and not returning to the former domicile. The party must have gone to the new home, or, in other words, he must have reached the place m his journey thither, with present settled intention of remaining in the chosen locality for an indefinite length of time. If he fails to reach his destination, or the requisite intent is lacking, there is no new domicile and the domicile of origin is not displaced. The length of residence, or the particular kind of place selected, is not material, but it is absolutely essential that he should be at the chosen place for his new domicile before any change is effected. 14 Cyc. 840. It is said in Ruling Case Law, vol. 9, p. 542, § 6:

"To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a home"

Residence, combined with the intention to remain, is required to constitute domicile. Id. p. 543, § 6; King v. King, 74 N. J. Eq. 824, 71 Atl. 687, 135 Am. St. Rep. 731. And again, in the same volume, at page 553, § 18, it is said:

"The well-established rule is that a domicile is not lost until a new one is acquired. This follows from the proposition that every one must at all times have a domicile somewhere. A person sui juris may change his domicile as often as he pleases. To effect such a change, naturalization in the country he adopts as his domicile is not essential. But there must be a voluntary change of residence; the residence at the place chosen for the domicile must be actual; and to the fact of residence there must be added the animus manendi."

The court in Mitchell v. United States, 21 Wall. (SS U. S.) 353, 22 L. Ed. p. 588, said:

"A domicile once acquired is presumed to continue until it is shown to have...

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