Hairston v. Hairston , 27 Miss. 704 ( 1854 )

Mr. Justice Smith

delivered the opinion of the court.

This is an appeal from the probate court of Lowndes county.

It appears from the record in this case that in June, 1852, the appellee, widow of Robert Hairston, deceased, renounced before the said court all claim to the estate of her deceased husband, under his will, and declared her intention to demand dower in Ms estate, both real and personal, and applied, by petition, at the August term following of said court for an allotment of dower in his real estate, and for her distributive share of his personal estate.

She alleges in her petition, that she is the widow of Robert Hairston, deceased, who died in March, 1852, at the place of his domicil in Lowndes county, leaving a will in which no provision was made for her; that George Hairston, one of the appellants, was the administrator with the will annexed, and that her said husband died possessed of a large estate, consisting of lands, slaves, stock, and other personal property. That he died unembarrassed; and that his personal property was not chargeable with any debts; and that he died, leaving no issue surviving, or lineal descendants, or heirs. The petitioner alleges, therefore, that she is entitled, as her dower and legal share of his estate, to a life-estate in one half of his land, and to one half of the personal estate in fee-simple. She prays for a writ of dower accordingly, and to have her share of the personal estate allotted to her.

At the succeeding term of the court, some of the heirs and distributees of the deceased filed their petition, in which they allege that the will of the deceased had been probated, by which he revoked all former wills, and devised his whole estate, real and personal, to one of his slaves, a child six years old, then in the State of Mississippi. They allege that the will was effective as a revocation of all former wills, but insist that the clause containing said devise was void, and that the real estate will descend, and the personal property will be subject to distribution as if he had died intestate.

They further allege, that the deceased left no child or lineal descendants, but left surviving his widow, the said Ruth S. Hairston, the petitioners, and others who were his heirs at law. They admit the right of the widow to dower in the land as claimed by her. They allege that the deceased and Mrs. Hairs-ton were married in the State of Virginia, where they had their domicil, and where they continued to reside for many years ; that in 1836, the deceased removed a large number of his slaves, and placed them upon lands which he had purchased in the State of Mississippi, and afterwards removed other slaves to the same State; that he frequently visited Mississippi to attend to his interest there, but did not remove his family, and kept up his establishment in the State of Virginia. In 1841, unpleasant relations sprung up between himself and Mrs. Hairston, and being a whimsical and capricious man, in a sudden fit of passion he, left Virginia, where he owned several plantations, but without any intention of changing his domicil. After having left the State of Virginia he visited Europe, whence he returned to this State in 1842, where he remained attending to his business down to the time of his death, which occurred in 1852. They aver that at the time of his death his domicil was in the State of Virginia, and insist that his wife, who never removed from that State, is not entitled to a share of ,his personal estate by the laws of Mississippi,- but under that of Virginia, according to which she would be entitled to only an estate for life in one half the slaves of which he died possessed.

They further insist, that if it should be held that the domicil of the deceased was, at the time of his death, in this State, that she is entitled to her share of the slaves, which the deceased owned or possessed, before his change of domicil, according to the law of Virginia, and not under the statute of Mississippi, which would vest in her the absolute title in fee-simple to one half of them.

It is- not controverted, if Robert Hairston died having his permanent residence in Mississippi, that the rights of his widow, as to all the personal property acquired after his change of domicil, are to be determined by the law of this State, and not by that of Virginia. Our first inquiry, therefore, respects the place of his domicil, at the time of his death, — whether it was in Virginia, or Mississippi ?

In its ordinary acceptation, by the term “ domicil” is meant the place where a person lives or has his home. In this sense, where a person has ■ his actual residence, inhabitancy, or commorancy, is called his domicil. But in a strict and legal sense, says Judge Story, “ that is properly the domicil of a person where he has his true, fixed, permanent home and principal establishments, and to which whenever he is absent, he has the intention of returning.” Confl. Laws, p. 39, § 41. This is perhaps the most comprehensive and correct definition of the term which could be given. Two things must concur, according to the same authority, to constitute domicil: “ first, residence ; and secondly, the intention of making it the home of the party. There must be the fact. and the intent.” Where it is certain that these conditions must concur to constitute a domicil, it is a matter frequently of difficulty to determine, from the facts in cases of contested domicil, the existence of such residence and the intention to make it the permanent home of the party. From the nature of the subject, it is impracticable to lay down any very definite rule by which either the fact of a permanent residence, or the intention of permanent residence, is to be ascertained. In none of the decided cases on this subject is there a definite period of time recognized, as being necessary to create a domicil. The time may be shorter or longer, according to the circumstances; and in all cases, the question whether a person has or has not acquired a domicil, must depend mainly upon his actual, or. presumed intention. In the case of Moore v. Darras, 4 Hag. Eccl. R. 346, it was said domicil does not depend upon residence alone, but upon a consideration of all the circumstances of the case; a person being at a place is primé facie evidence that he is domiciled there ; but it may be explained, and the presumption rebutted. The place where a man carries on his business or professional occupation, and has a home or permanent residence, is his domicil; and he has all the privileges, and is bound by all the duties flowing therefrom. As a domicil may be acquired by a longer or shorter residence, depending upon the circumstances of the case, its true basis and foundation must be the intention, the quo animo of evidence. The apparent or avowed intention of residence, not the manner of it, constitutes domicil. Bradley v. Lowry, 1 Spear, Eq. R. 2. In the absence of any avowed intention, and of acts which indicate a contrary intention, a long continued residence is regarded as a controlling circumstance in determining the question of domicil. In most cases it is unavoidably conclusive. The Ship Ann Green, Gall. R. 274; The Harmony, 2 Rob. R. 322. In the matter of Catherine Roberts’ Will, it was said, “ the declarations of the party himself, where' he can have no Object or inducement to falsify the truth or to deceive those to whom such declarations are made,.are the best evidence of his intention to make his actual residence his permanent residence also.” 8 Paige, R. 424. But where acts, although unaccompanied by declarations, concur with long continued residence or habitancy, evincing an intention of permanent residence, it is manifest that they furnish as satisfactory evidence of that intention as the express declarations of the party to that effect. So it is laid down by Judge Story, that even where a party has two residences at different seasons of the year, “ that will be esteemed his domicil which he himself selects, or-describes, or deems to be his home, or which appears to be the centre of his affairs, or where he votes or exercises the rights and duties of a citizen.” Confl. of Laws, p. 45, § 47; Shelton v. Tiffin, 6 How. S. C. R. 163.

Let us apply these principles, which are sustained by undoubted authority, to the facts in the cause about which there is no controversy.

It appears from the evidence, that Robert Hairston and the appellee were natives of the State of Virginia, where they were domiciled at the date of their intermarriage, and where they continued to reside until 1841. Hairston was then the owner of a large property, situated there, consisting of lands and slaves, with which he never parted. In 1841, having conceived an unconquerable aversion for the appellee, he abandoned his home, visiting New York and Europe, whence he returned to Mississippi in 1842. He had, in 1836, purchased land in Lowndes county, in this State; and had, before he left Virginia, removed thither a sufficient number of his slaves to cultivate a large plantation. The appellee did not accompany him to Mississippi, but remained in Virginia and resided at the family mansion. After his return from Europe in 1842, he resided upon some one of his plantations in this State, with occasional and temporary absences on business, until he died in 1852. After his return to this State, he purchased a large quantity of land, and added largely to his slave property. He never revisited Virginia after he came to this State in 1842, but continued his plantations there, and kept up the family mansion 117% style suitable to his means. He sold many tracts of the lands which he had purchased in this State, and in the deed of conveyance for the lands sold by him, he described himself as of Lowndes county in this State. He had in operation in this State five plantations at the time of his death. About the year 1845, he purchased a healthy situation, which he called “ Choctaw Spring,” and built there an indifferent house, in which he resided. Pie said that place was his home, and that he expected to live and die there. He repeatedly voted for county and State officers in Lowndes county, where he lived; and he attended and voted at the two last elections preceding his death, held in that county.

These facts, we think, conclusively show that when Hairston left Virginia in 1841, he intended to abandon his domicil in that State. But as a domicil, when once gained, continues until one is acquired in some other place, it is admitted that by his abandonment of his home in Virginia, he did not destroy his domicil there. His departure from Virginia, under the circumstances, can have no other effect than to lessen the degree of evidence required to establish the fact of his domicil in Mississippi. But if it were admitted that Hairston, when he came to Mississippi in 1842, did not intend to make it his permanent place o ■ residence, but designed to retain his domicil in Virginia, v!e cannot doubt that he changed such intention, and became in fact and intention domiciled in this State. His declaration that he expected to live and die at his residence in Lowndes county, his continued residence for ten years at a place where a large part of his property was situated, and finally, the exercise of the rights of a citizen, are without doubt conclusive on the subject.

It was said in argument, that when Hairston sought a residence in Mississippi, he abandoned his duty as a husband, and thereby violated a sacred obligation imposed by the laws of society; and hence, upon a principle of public policy, he should' be denied the rights of domicil in this State. However reprehensible the motive of the alleged act may have been, in a moral point of view, it is evident that it was not his intention,, by his change of residence, to affect injuriously the pecuniary rights of the appellee, as her interest in his estate W!s thereby been materially enhanced. Hence if the foundation of the argument were better sustained than it is, by the proofs in the cause, the objection comes from the wrong quarter.

The next question is, whether the appellee is entitled to her widow’s portion out of the slaves which were owned by the deceased in the matrimonial domicil before he removed to and permanently settled in Mississippi, under the law of that domicil, or under that of Mississippi.

As we have stated, if the distribution is to be made according to the statute of this State, the appellee will succeed to one half of the slave property, and will hold it by an absolute title in fee-simple; whereas if the law of Virginia is to give the rule of succession, she will have only a life-estate in one half of the slaves. This question will admit of very little debate.

We have decided that Hairston’s domicil, at the time of his death, was in Mississippi. Hence, although the appellee did not follow him there, but remained in Virginia, her legal domicil was that of her husband at the time of his death. Story, Confl. Law, p. 43, § 46. The case, therefore, presented by the petition of the appellee, is not one in which the citizen of a foreign jurisdiction solicits the aid of our courts to enforce rights arising under a contract made elsewhere; but it is one in which the widow of a citizen, having his proper domicil within this State, invokes an application of our municipal regulations for the ascertainment of her rights in regard to his estate. But the rights claimed against her are alleged to arise out of a marriage celebrated in another State. Therefore, upon a well settled principle of comity, it becomes our duty to enforce those rights, if they shall be found to exist. This brings us.to the question of what were the respective rights, in reference to the property in controversy, of the appellee and her husband, arising out of the contract of marriage, as regulated by the laws of Virginia.

In the ingenious and very learned argument of counsel, it was assumed that the widow, under the law of Virginia, does not take her share of the deceased husband’s estate by virtue of the general statute of distributions; but is entitled to it under a separate and independent provision of the law.

This may be conceded. It may also be admitted, that the wife, not being of the next of kin to the husband, does not succeed to her share of his estate as a distributee, in the proper sense of the term; but that the right to her portion of the deceased husband’s estate is an incident ingrafted by law upon the contract of marriage. But the concession will avail nothing, unless it can be shown that the right of the feme covert in the personal estate of the husband, during the subsistence of the marriage., are of a superior character and different nature to those of the next of kin; or, in other words, unless it can be proved that by the consummation of the marriage, the wife acquires a vested interest in the personal estate of the husband, possessed at the time of the marriage, or acquired subsequently and before there has been a change of domicil. It is evident to us, that this position is not maintainable.

By the law of Virginia regulating the rights of husband and wife, the husband becomes the absolute owner of the personal property of the wife which is in her possession at the time of the marriage, or which he shall reduce into his possession during its continuance. The marriage is held to operate an absolute gift to the husband of all the personal property of the wife. During the subsistence of the marriage, the wife has no right whatever to the personal estate of the husband, or to any portion of its proceeds or profits. This is conclusively shown by the unlimited right of the husband to dispose of it for any purpose whatever. Such an unrestricted right of disposition is manifestly inconsistent with the idea of a fixed and vested right on the part of the wife to his personal property. It is true that the husband is incapable, by a testamentary disposition, which can only take effect after his death, to deprive the wife of her statutory portion of his effects of which he may die possessed. In this respect only does the wife stand on a different or better foundation than those persons who, as next of kin, would be entitled to the succession, as heirs or distributees, in the event the husband should die intestate.

It matters not, therefore, whether the right of the wife to her share of the deceased husband’s personal effects, arises under the general statute of distributions of the State of Virginia, or whether it is based upon a distinct and independent act of legislation. The question is, does the wife, by the contract of marriage, under the operation of the law of Virginia regulating the institution of marriage, acquire a vested interest in the personal estate of the husband, then possessed , by him or subsequently acquired ? It seems too evident to admit of debate, that she acquires no immediate fixed right of present or future, enjoyment, which are the conditions of a vested estate. 4 Kent, 202. The most that can be said of it is, not that it is.a vested interest in or right to the personal estate of the husband, but a privilege to have her portion of the personal effects of which the husband may die possessed, and of which he cannot deprive her by a testamentary disposition, which can only take effect after he is dead.

Where, by the operation of the law regulating the institution of marriage, the husband is the absolute and exclusive owner of the personal property brought into the marriage, it is clear that the doctrine of a tacit contract cannot apply. If the wife 'has no vested interest of any character to the .personal property possessed at the time of the marriage, or to any future ac-quest and gains which may accrue during its continuance, there is, evidently, nothing to which it can attach or upon which it could op.erate. Personal property has no situs. In contemplation of law it follows the owner, and is subject to the law which .governs his person, both with respect to the disposition of it, and its transmission either by succession or the act of the party. It is the law of Virginia, as well.as the law of Mississippi, that personal property shall be distributed according to the law of the domicil. Hence, if any tacit contract can be'imagined to attach to the fact of marriage as regulated by the law of Virginia, it is that the wife shall be entitled to distribution according to the law of the place in which the husband may have his domicil at the time when he shall die.

Let the decree be affirmed.