Harkins v. Arnold , 46 Ga. 656 ( 1872 )

Montgomery, Judge.

1. The Act of October 8d, 1868, provides that every person seeking the benefit of the Act “should make out a schedule and description of the personal property claimed by him to be exempt,” etc.

The Act of March 20th, 1869, enacts that “it shall be the duty of such debtor, when he takes steps in the Court of Ordinary, or before the proper Court, to have said exemption of personalty set off to him to make a full and fair disclosure of all the personal property,” etc. Only then when he claims exemption of personalty is it his duty to file a schedule.

2. My associates prefer, in this case, to treat the question of domicil which arises, as a question of fact, and (under the evidence as set forth in the decision pronounced from the bench and as embodied in Che statement of facts by the Eeporter,) to hold that the jury had sufficient evidence before them of the animus revertendi on the parts of the step-father and the mother of the children to sanction the verdict. For myself I am prepared to say, as matter of law, that the minors have never lost their domicil in Gordon county, so far as to deprive them of their right to homestead, for the following reasons: First, the place of birth of a person is considered as his domicil, if it is at the time of his birth the domicil of his parents, or, rather, of his father. Ratris originem unusquisque sequatur. Secondly, the domicil of birth of minors continues until they have obtained a new domicil. Thirdly, minors are generally deemed incapable, proprio motu, of changing their domicil during minority. [This rule has, perhaps, its exceptions: Roberts vs. Walker, 18 Georgia, 5;] and, therefore, they retain the domicil of their father. Fourthly, if the father dies, his last domicil is that of his infant child.

A widow retains the domicil of her deceased husband until she obtains another. A married woman follows the domicil of her husband : Story’s Conflict of Laws, section 46. At common law a domicil cannot be acquired by act of the infant; but, with the exception of fraud, a domicil acquired by the mother with whom the infant continues to reside (the father being dead) becomes the domicil of the infant: Pottinger vs. Wrightman, 3 Mer., 67. But by the civil law minors retain the domicil which their father had at the time of his decease, although the infants afterward remove with the consent of their curators, tutors or relations; -because they are not permitted to change the order of their succession to personal property, which depends on the law of domicil: 2 Domat’s Public Law, 487, book 1, title 16, section 3, article 10. This principle does not appear to have been adopted by the common law because the right of inheritance is not changed by a change of domicil within the State nor is the settlement of estates affected thereby: Holyoke vs. Haskins, 5 Pickering’s Reports, 25-6, and authorities there cited.

In Georgia, if', as contended by counsel, no one, who is a resident of another Siate, is entitled to homestead here, the reason of the civil law applies in full force. In addition to this, section 1695 of the Code provides that “ A person, whose domicil for any reason is dependent upon that of another, can, by no act or volition of his, effect a change of his own domicil; nor can a guardian change the domicil of his ward by a change of his own, or otherwise, so as to interfere with the rules of inheritance or succession, or otherwise affect the rights or interests of third persons.” The same person may have a domicil in one place for one purpose — in another, for another purpose : Somerville vs. Somerville, 5 Vesey, 786. Eor these reasons, as matter of law, I think that no change of the domicil of the mother, the natural guardian of the children, could so far change their domicil as to. deprive them of their right to homestead in their father’s estate. The jury, however, have found, as matter of fact, that their step-father did not change his domicil. There is evidence to sustain this finding. And this settles their right to homestead.

3. Section 13 of the Homestead Act of 1868 provides that the minors may apply for homestead by next friend.

Judgment affirmed.