White v. Tennant

• Decision Date: 01 December 1888
• Citation: 31 W.Va. 790,8 S.E. 596
• Court: West Virginia Supreme Court
• Parties: White et al. v. Tennant et al.

8 S.E. 596

(31 W.Va. 790)

White et al.

v.Tennant et al.

Supreme Court of Appeals of West Virginia

December 1, 1888

1. Domicile—Change of Residence—Intent.

Where a person entirely abandons his former residence in one state, with no intention of resuming it, and goes with his family to another residence, which he has rented in another state, with the intention of making the latter his residence for an indefinite time, the latter state is his domicile, notwithstanding that after he and his family arrive at the new residence, which is only about a half a mile from the state line, they go on the same day on a visit to spend the night with a neighbor in the former state, intending to return in the morning of the next day, but he is detained there by sickness until he dies, and never does in fact return to his new home.

2. Conflict of Laws—Distribution of Property—Domicile of Decedent.

The laws of the state in which the domicile of a decedent is at the time of his death control and govern the distribution of his personal estate, although he may die in another state.

(Syllabus by the Court.)

Appeal from circuit court, Monongalia county.

Action by William L. White and others against Emrod Tennant, administrator, and another, to set aside a certain settlement and distribution. From a decree dismissing the bill, plaintiffs appeal.

P. H. Keck and J. Marshall Hagans, for appellants. Berkshire, Sturgiss & Baker and A. F. Haymond, for appellees.

Snyder, J. This is a suit brought December, 1886, in the circuit court of Monongalia county by William L. White and others against Emrod Tennant, administrator of Michael White, deceased, and Lucinda White, the widow of said Michael White, to set aside the settlement and distribution made by the administrator of the personal estate of said decedent, and have the same settled and distributed according to the laws of the state of Pennsylvania, which state it is claimed was the domicile of said decedent at the time of his death. The plaintiffs are the brothers and sisters of the decedent, who died in this state intestate. On October 28, 1887, the court entered a decree dismissing the plaintiffs' bill, and they have appealed.

The sole question presented for our determination is whether the said Michael White, at the time of his death, in May, 1885, had his legal domicile in this state or in the state of Pennsylvania. It is admitted to be the settled law that the law of the state in which the decedent had his domicile at the time of his death will control the succession and distribution of his personal estate. Before referring to the facts proved in this cause, we shall endeavor to determine what in law is meant by "domicile. " Dr. Wharton says: " ' Domicile' is a residence acquired as a final abode. To constitute it there must be (1) residence, actual or inchoate; (2) the non-existence of any intention to make a domicile elsewhere. " Whart. Confl. Law, § 21. " 'Domicile' is that place or country, either (1) in which a person in fact resides with an intention of residence, —animus manendi; or (2) in which, having so resided, he continues actually to reside, though no longer retaining the intention of residence, —animus manendi; or (3) with regard to which, having so resided there, he retains the intention of residence, —animus manendi, —though he in fact no longer resides there. " Dicey, Dom. 44. Two things must concur to establish domicile, —the fact of residence, and the intention of remaining. These two must exist, or must have existed, in combination. There must have been an actual residence. The character of the residence is of no importance; and, if domicile has once existed, mere temporary absence will not destroy it, however long continued. Munro v. Munro, 7 Clark & F. 842. The original domicile continues until it is fairly changed for another. It is a legal maxim that every person must have a domicile somewhere; and he can have but one at a time for the same purpose. From this it follows that one domicile cannot be lost or extinguished until another is acquired. Baird v. Byrne, 3 Wall. Jr. 1. When one domicile is definitely abandoned, and a new one selected and entered upon, length of time is not important; one day will be sufficient, provided the animus exists. Even when the point of destination is not reached, domicile may shift in itinere, if the abandonment of the old domicile, and the setting out for the new, are plainly shown. Munroe v. Douglas, 5 Madd. 405. Thus a constructive residence seems to be sufficient to give domicile, though an actual residence may not have begun. Whart. Confl. Law, § 58. A change of domicile does not depend so much upon the intention to remain in the new place for a definite or an indefinite period, as upon its being without an intention to return. An intention to return, however, at a remote or indefinite period, to the former place of actual residence, will not control, if the other facts which constitute domicile all give the new residence the character of a permanent home or place of abode. The intention and actual fact of residence must concur, where such residence is not in its nature temporary. Hallet v. Bassett, 100 Mass. 170, 171; Long v. Ryan, 30 Grat. 718. In Bradley v. Lowry, 1 Speer, Eq. 1, it is held that "change of domicile is consummated when one leaves the state where he has hitherto resided, avowing his intention not to return, and enters another state intending to permanently settle there. " A domicile once acquired remains until a new one is acquired elsewhere, facto et animo. Story, Confl. Law, § 47; Hart v. Lindsey, 17 N. H. 235. Where a person removes from one state to another and establishes a fixed residence in the latter, it will become his domicile, although there may be a floating intention to return to his former place of abode at some future period. Ringgold v. Barley, 5 Md. 186. "If a man intending to remove with his family visits the place of removal beforehand, to make arrangements, or even sleeps there occasionally for convenience, and then transfers his family, the change of domicile takes effect from the time of removing with the family; but if he has definitely changed his residence, and taken up his abode permanently in a new place, the fact that his family remains behind until he can remove them conveniently, and that he visits them occasionally, will not prevent the new place being his domicile. " Guier v. O'Daniel, 1 Amer. Lead. Cas. (753,) 902; Cambridge v. Charlestown, 13 Mass. 501.

The material facts in the case at bar are as follows: Joseph S. White, the father of the plaintiffs and Michael White, died intestate in Monongalia county, seised of a tract of about 240 acres of land, of which about 40 acres lay in Greene county, Pa., but the whole constituted but one tract or farm. The mansion-house in which the father resided was located on the West Virginia side of the farm, and there was also a dwelling-house generally occupied by tenants on the Pennsylvania part of the farm. After the death of the father, his widow and the plaintiffs remained together and occupied the home farm, residing in the mansion-house in West Virginia. Michael White, several years before his death, married the defendant Lucinda White, a daughter of the...