Mears v. Sinclair , 1 W. Va. 185 ( 1865 )

HarrisoN, J.

John Williams, of Brooke county, in the then State of Virginia, made his will bearing date on the 22d day of March, 1845, by which he directed all his estate to be sold on such terms as his executors should deem best for the benefit of his estate, and the money arising from the sale to be paid in equal proportions to his wife and his only children Mary and Caroline. He appointed his wife Elizabeth, executrix, and her brother William Brown, executor, of his last will, and his wife and Oliver Brown guardians of Ms children; and directed that they, (executor, executrix and guardians,) should not be required to give security.

At the April term 1845 of the county court of Brooke county, the will was admitted to probate, and the widow appeared in court and accepted the guardianship.

The widow and children resided at the homestead, called “Half Moon,” in said county, where the testator had lived aud died.

The widow intermarried with James Sinclair in January 1851, at her residence on said farm, and continued to reside there with the two children as members of the family, until 1852, when Sinclair and wife left Virginia and took up their residence in the State of Ohio. They carried the children with them to Ohio, and the four lived together there as one family, until June 1853, when Mary died in infancy: the mother and Caroline surviving her.

On the 25th of July, 1851, the executor, William Brown, and the executrix, Elizabeth Sinclair, sold and conveyed to the said James Sinclair, a portion of the real estate of the tesiator for the sum of 10,800 dollars, and took from him two bonds, each for one-tliird of the purchase money, (after adjusting some accounts), amounting to 8,649 dollars and 50 cents each: one payable when Mary arrived at age, the other when Caroline arrived at age — both payable to Vm. Brown as executor, and both bearing interest from date, the interest payable annually from the 1st day of November, 1851.

No bond was taken from James Sinclair for his wife’s third of the proceeds of sale; he execute^, a deed of trust, however, on the land, to secure payment of the two bonds and interest thereon, and this deed of trust was made on the day of the sale of the land.

It appears that James Sinclair supported Mary, from the time of his marriage with her mother, until her (Mary’s) death, a period of about two years; and he has rendered an account against her estate for medical services and support, amounting to 1,500 dollars, and has assigned the same to the appellant Robert Hears, who filed his bill in the circuit court of Brooke county, against the administrator of Mary, and asks that the amount of the account be decreed to him, as also the share of the personal estate of Mary which her mother inherited from her deceased daughter, which James Sinclair and wife had assigned to him. The said Caroline has intermarried with O. C. Baakee, who with Sinclair 'and wife and sundry attaching creditors of James Sinclair are made defendants to the bill. The defendants Baakee and wife filed their answer, and insist that the personal estate of Mary, passed after her death, to Mrs. Baakee, according to the law of descents of the State of Ohio. On the other hand, Mears insists that it passed, at her death, to her mother and Mrs. Baakee, according to the statutes of descents and distributions of the State of Virginia.

The case involves the inquiry, whether Mary, who was born in Virginia and domiciled here, became domiciled in Ohio, under the facts above stated; or in the language of counsel who have argued the cause in this court, where, in contemplation of law, was the domicil of Mary at the time of her death?

The numerous authorities cited in argument establish these propositions: that the home or domicil of a father, is the domicil of his infant children; and so as to the mother, while sole — her domicil is theirs. Parents have a right to choose a domicil for themselves; infant children have not such right; their domicil is derived from that of their parents. A guardian cannot fix the domicil of his ward. Can a mother, while under coverture with her second husband, a stranger in blood and estate to his infant step-children, change their domicil? Can a second husband take his infant step-child from its native State, where it is domiciled, and carry it into another State, thereby changing its domicil, and alter the succession of its estate?

This being the only serious question made and argued in tifie cause, I have come to the conclusion that the marriage of James Sinclair with the mother of Mary, and carrying Mary from her native State (Virginia,) to the State of Ohio, and remaining there until her death, did not so change her domicil as to alter the succession and distribution of her personal estate in Virginia; it must be distributed according to the Virginia law of descents and distributions, — not that of Ohio.

The decree of the circuit court of April 4th, 1830, deciding “that the personal estate of said Mary passed at her death, to said Caroline, to the exclusion of the mother, according to the laws of Ohio,” is, in my opinion, erroneous and should be reversed, and the cause remanded to the circuit court for proceedings in accordance with the principles herein stated. I am further of the opinion that, the accounts of James Sinclair and wife for maintenance, &c., of the children Mary and Caroline, and assigned to the appellant Mears, are in themselves just and proper and ought to be allowed; provided there was any fund out of which they could be satisfied; but inasmuch as it appeal’s that the indebtedness of James Sinclair to the estate of his wards, after applying the proceeds of the “Half Moon” farm, exceeds the amount of these accounts, the circuit court did not err in rejecting them, as there was no fund in the power of the court, applicable to their payment.

The other judges concurred in the opinion of Harrison, J.

Decree reversed; and the cause remanded to the circuit court for further proceedings.