Shute v. Sargent

• Decision Date: 17 March 1893
• Citation: 67 N.H. 305,36 A. 282
• Parties: SHUTE v. SARGENT et al.
• Court: New Hampshire Supreme Court

36 A. 282

67 N.H. 305

SHUTE

v. SARGENT et al.

Supreme Court of New Hampshire. Rockingham.

March 17, 1893.

Opinion on bill of interpleader filed by Shute, as administrator with the will annexed of Sarah A. P. Sargent, deceased, against the husband and legatees of decedent. Case discharged.

The will was made in 1885, at which time the testatrix was domiciled with her husband in Massachusetts, and the husband expressed in writing, on the back of the will, consent to its provisions. In 1888, he abandoned her without cause, and procured her ejection by legal process from the house in which they had been living. She removed to Kensington, in Rockingham county, in this state, and lived there till her death, in 1880; and her domicile was there, if she could legally have a domicile apart from her husband. The husband retained a domicile in Massachusetts. The will was approved and allowed by the probate court of Rockingham county, on petition of one of the legatee defendants, with notice to the other defendants, and without objection from any one. On the same day, the husband filed with the probate court a revocation of his assent to the will, together with his waiver of its provisions, and claim of his distributive share, under the statute. The Public Statutes of Massachusetts (chapter 147, §§ 1, 6) and the reported decisions of Massachusetts were made a part of the case.

Henry A. Shute, for plaintiff. Arthur O. Fuller, for defendant Sargent.

C. H. Knight, for defendant legatees.

BLODGETT, J. The maxim that the domicile of the wife follows that of her husband "results from the general principle that a person who is under the power and authority of another possesses no right to choose a domicile." Story, Confl. Laws, § 46. "By marriage, husband and wife become one person in law; that is, the very being or legal existence of the wife is suspended during the marriage, or, at least, is incorporated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything." 1 Bl. Comm. 442. Such being the common-law status of the wife, her domicile necessarily followed her husband's, and the maxim applied without limitation or qualification. But the common-law theory of marriage has largely ceased to obtain everywhere, and especially in this state, where the law has long recognized the wife as having a separate existence and separate rights and separate interests. In respect to the duties and obligations which arise from the contract of marriage, and constitute its object, husband and wife are still, and must continue to be, a legal unit; but so completely has the ancient unity become dissevered, and the theory of the wife's servitude superseded, by the theory of equality which has been established by the legislation and adjudications of the last half century, that she now stands, almost without an exception, upon an equality with the husband as to property, torts, contracts, and civil rights. Pub. St. c. 176; Id. c. 90, § 9; Seaver v. Adams, 66 N. H. 142, 143, 19 Atl. 776, and authorities cited. And since the law puts her upon an...