Younger v. Gianotti

• Decision Date: 06 April 1940
• Citation: 138 S.W.2d 448
• Parties: YOUNGER et al. v. GIANOTTI et al.
• Court: Tennessee Supreme Court

138 S.W.2d 448

YOUNGER et al. v. GIANOTTI et al.

Supreme Court of Tennessee.

April 6, 1940.

Appeal from Chancery Court, Shelby County; John E. Swepston, Chancellor.

Suit by Veronica M. Younger and others against Frank B. Gianotti, Jr., administrator, and others, to determine rights to distribution of the estate of Mrs. Madeline Dailey. From a decree dismissing the bill, complainants appeal.

Affirmed and remanded for further proceedings.

Albert G. Riley and B. J. Semmes, both of Memphis, for complainants.

John D. Martin, Jr., of Memphis, and Ralph G. Coad and William J. Hotz, both of Omaha, Neb., for defendants.

EDWARD J. SMITH, Special Justice.

From a decree dismissing the bill after a hearing on the pleadings and a stipulation, the complainants appealed.

On November 6, 1937, Mrs. Madeline Dailey died intestate at Memphis, Tennessee, where she had resided for twenty-one years, and the distribution of her personal estate is the subject of this suit.

Complainants, sisters of the intestate, contend that despite her long residence in Memphis, she was domiciled at Omaha, Nebraska, and that under the statutes of distribution of Nebraska, which were offered in evidence, they are entitled to one-half of her personal estate, while co-defendant, John F. Dailey, husband of the intestate, insists that she, with his acquiescence and consent, had established a domicile at Memphis, Tennessee, which she retained until her death, and that as no children were born of the marriage, he, as surviving husband, is the sole distributee of her personalty. Code 8389 (2).

On February 6, 1915, John F. Dailey and Madeline Davis were married in Sioux City, Iowa, and returned to Omaha, Nebraska where they lived in an apartment, and the wife was supported by the husband according to his means. In 1916, without fault on the part of the husband, Mrs. Dailey removed to Memphis, Tennessee, where her sister, Mrs. Catherine Broderick, resided at 384½ South Main Street.

When Mrs. Dailey left Omaha, she had the fixed intention of making Memphis her permanent place of residence, and when Mrs. Broderick left Memphis, Mrs. Dailey occupied the premises and conducted a rooming house for twenty-one years until she died on November 6, 1937.

Between 1916 and 1921, Mr. Dailey would send his wife small sums of money at her request, but she supported herself, and, during her residence in Memphis, seems to have prospered in a financial way, as at her death she had a bank deposit of about seven thousand dollars, a certificate of deposit of a Memphis bank of about thirty-one thousand dollars, and some other articles of personal property of a relatively insignificant value.

In 1919 and again in 1921, Mr. Dailey came to Memphis for the purpose of seeking to persuade his wife to return with him to Omaha, but she declined to do so, and from the time she left Omaha in 1916 until her death in 1937, she had no marital relations with her husband.

As a result of the two visits made by Mr. Dailey to Memphis, they decided that nothing could be done other than each should continue his and her respective, separate places of residence, and separate ways of life.

Mrs. Dailey qualified herself as a voter, and as such voted in all elections, primary and general, held in Shelby County, for many years prior to her death.

In June 1936, Mrs. Dailey went to Omaha, Nebraska, to visit her sister, Mrs. Broderick, who lived at that place, and while there, Mr. Dailey called on her at her sister's house.

She asked him to come to Memphis to live with her, and stated that she would build a new home at Memphis for them if he would come.

He refused, and said that if she would leave Memphis and come to live with him in Omaha, he would take her back. She declined, however, and said that she wanted to remain in Memphis as her home, and he said that was agreeable to him.

She returned to her permanent place of dwelling in Memphis, and thereafter they never saw or communicated with each other.

The rule of the common law that the domicile of the wife follows that of the husband was based on (1) the doctrine of marital unity, and (2) that public policy demanded that the family unit be protected by allowing one family to have only one domicile.

The enactment of legislation removing practically all of the common law disabilities of married women, Code sections 8460, 8461, 8462, has destroyed the first reason for the rule, and while the ideal that the welfare of society demands the protection and preservation of the family as a unit still persists, its potency has been impaired by the enactment of emancipation legislation, the object of which is to put wives on a parity with their husbands, and this progressive tendency is evidenced by decisions holding that as married women may freely contract with their husbands, the domicile of the husband may be abandoned by mutual agreement, and with his acquiescence or consent, they may acquire separate domiciles.

In support of their contentions, opposing counsel stress certain language in Prater v. Prater, 1888, 87 Tenn. 78, 9 S.W. 361, 10 Am.St.Rep. 623, the only Tennessee case having even a remote bearing on the subject now under consideration.

Counsel for the appellants insist that the controverted language is at best a dictum, while counsel for the appellees contend that the case is a leading one, and directly supports the theory that Mrs. Dailey was domiciled at Memphis at the time of her death.

In that case the wife, who had deserted the husband some years prior to his death, and lived in adultery with a man of Asheville, North Carolina, claimed a homestead right in property of her deceased husband situated in Tennessee.

In denying her claim, and citing Emmett v. Emmett, 1884, 82 Tenn. 369, 14 Lea 369, 370, the court, speaking through Mr. Justice Caldwell, said: "We concede that, as a general rule, the domicile of the husband is, in the contemplation of the law, the domicile of the wife; but of necessity there are many exceptions to that rule. This case furnishes a striking exception and forcibly illustrates the injustice that would flow from a universal application of the rule.

"No effect was given to this rule in the Emmett Case, just mentioned. In fact it was not referred to at all in that case; but the real residence of the wife was treated as controlling. So we treat it in this case." 87 Tenn. 83, 9 S.W. 363, 10 Am.St.Rep. 623.

Headnote two of the case, prepared by Attorney General Pickle, reads: "In such case the wife has acquired a domicile in the State of her actual residence, independent of her husband's domicile."

In Keelin v. Graves et al., 1914, 129 Tenn. 103, 110, 165 S.W. 232, 234, L.R.A. 1915A, 421, it was said: "In Prater v. Prater, 87 Tenn. 78, 9 S.W. 361, 10 Am.St. Rep. 623, the term `nonresidence' is used; but it is apparent from the opinion that the word was used as the equivalent of domicile."

In 19 C.J., Domicile, section 34, p. 416, note 71; 17 Am.Jur., Domicile, section 49, note 16; 84 Am.St.Rep. note page 29; and 1 Beale Conflict of Laws (1935), section 28.5. p. 208, note 1, Prater v. Prater, supra, is classified as an exception to the general rule that the domicile of the wife follows that of the husband; and that a wife, even though at fault, may acquire a separate domicile, is sustained by Chapman v. Chapman, 1889, 129 Ill. 386, 21 N.E. 806; In re Dunning, 1918, 211 Ill.App. 633, and Saperstone v. Saperstone, 1911, 73 Misc. 631, 635, 131 N.Y.S. 241.

In Restatement, Conflict of Laws, (1934), no rule is stated on this point, as in section 28, p. 51, this appears "Caveat: The Institute expresses no opinion whether a wife, guilty of desertion, according to the law of the state which was her domicil at the time of separation, may not acquire a domicil in another state."

As the decision in the present case will be based on another and independent principle, it is unnecessary to determine whether what was said in Prater v. Prater, supra, is to be regarded merely as a dictum, or as a decision supporting the theory that a wife, without fault on the part of her husband, may acquire a separate domicile.

It may be observed in passing that there is a conflict in the authorities as to whether a wife, living with her husband on amicable terms, can, with his consent, acquire an independent domicile.

In Daggett's Will, 1931, 255 N.Y. 243, 174 N.E. 641, 642, 75 A.L.R. 1251, annotation, it was held that she could not.

While the opinion recognized that legislation of New York had fully emancipated married women, the court, emphasizing the importance of preserving the home as a social unit, and of recognizing the husband as the head of the home, was of the opinion that it was not the intention of the legislation to put it within the power of the husband and wife so to contract as to permit the wife to establish an independent domicile.

In the course of the opinion it was said: "We sometimes hear of amicable married couples living apart by consent (Matter of Florance's Will, 54 Hun 328, 7 N.Y.S. 578; Matter of Crosby's Estate, 85 Misc. 679, 148 N.Y.S. 1045), but that is not the case we have before us (Dean v. Dean, 241 N. Y. 240, 244, 149 Me. 844, 42 A.L.R. 1398).

"Mr. Daggett says he resided in Orange county in his wife's home at the time of her death. Indubitably such was the fact. He says he made it his domicile. Neither had any other fixed place of abode. They stopped in New York transiently in hotels. She went to New York for hospital care before she died. In no way did he indicate any acquiescence in her desire that New York should be their place of abode, their residence, their domicile, for any purpose."

In Commonwealth v. Rutherfoord, 1933, 160 Va. 524, 169 S.E. 909, 90 A.L.R. 348 annotation, the opposite conclusion was reached on facts raising the same question.

Considering that legislation of Virginia emancipating married women not only destroyed the fictional unity of husband and wife, but...