Konop, William

English

Notre Dame Law School: NDLScholarship

Notre Dame Law ReviewVolume 5 | Issue 1 Article 410-1-1929Capacity of an Infant to Acquire an IndependentDomicileWilliam KonopFollow this and additional works at: http://scholarship.law.nd.edu/ndlrPart of the Law CommonsThis Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationWilliam Konop, Capacity of an Infant to Acquire an Independent Domicile, 5 Notre Dame L. Rev. 26 (1929).Available at: http://scholarship.law.nd.edu/ndlr/vol5/iss1/4THE CAPACITY OF AN INFANT TOACQUIRE AN INDEPENDENT DOMICILEBy WILLIAm KONOPThe queston of domicile has ever held an important place inlitigations. The laws of states and nations differ both in the pro-cedural rules they follow and in the substanitve doctrines theyexpound. Hence it often happens that in a given situation beingdomiciled in a particular jurisdiction gives you a cause of actionwhich you would not have if domiciled elsewhere. Even oftenera more favorable interpretation of your case is to be found underthe decisions of one state or nation than under those of another.The question of domicile is raised frequently in cases regardingthe settlements of estates, in suits for divorce, in cases involvingcorporations, and in attempts to give federal courts jurisdictionon the theory of diversity of citizenship. In the settlement ofestates, for example, the laws of nations and states with regard toprobate and adminsitration are very diverse. There is an axiomthat "the law of the state in which the decedent had his domicileat the time of his death will control the succession and distribu-tion o his personal estate." In the case of White v. Tennant, 31"W. VA. 790, the question arose as to whether the domicile ofthe deceased at the time of his death was in Pennsylvania orWest Virginia. Administration was granted in West Virginiaunder whose law the widow took all personalty after the paymentof debts. On appeal the domicile of the deceased was shownto have been Pennsylvania at the time of his death and the widowwas, under the latter state's rules, only entitled to one-half ofthe excess personal property.Domicile is "a residence at a particular place, accompaniedby an intention, either positive or presumptive, to remain therepermanently or for an indefinite length of time" (19 CJ 394). Aperson's domicile of origin is "the domicile of his parents at thetime of his birth" (In re Jones' Estate, 192 Ia 78). A domicileof choice is "the place which a person has elected and chosen forhimself to displace his previous domicile" (Ibid). Domicile byoperation of law is "that domicile which the law attributes to aTHE NOTRE DAME LAWYER.persdn independant of his intention or action of residence. Thisgenerally results from the domestic relations of husband andwife, or parent and child" (Ibid).Ordinarily the domicile of an infant is, by operation oflaw, that of his father. "Every person at his birth acquires adomicile of origin, which is that of the person on whom he islegally dependant, and in the case of a legitimate child is thatof its father." (Deleware, L & W R. Co. v. Petrowsky, 250 Fed.554). An infant is non sui juris and at 6ommon law and underthe statutes practically universally does not become sui jurisuntil twenty- one years of age. Upon the death of the father thechild's domicile is under the control of his mother, though somejurisdictions hold she cannot change the child's domicile det-rimentally to his legal rights. Upon remarriage of the mother,by operation of law, she surrenders her domicile for that of herhusband, and ipso facto loses control of the domicile of her child,whose domicile thereafter is that of his mother before remarriage.(Lamar v. Micou, 112 US 452; In re Tharpe 24 NY 444). Thefather in changing his own domicile changes that of his wife andchildren. In case of the death of both parenfs the grandfather orgrandmother may control the minor's domicile. Adopting par-ents exercise like control, (Matter v. Johnson, 87 Ia 130) butguardians usually cannot. The law is fair in so establishing thechild's domicile, for upon the parent evolves the duty to support,in return for which it is only just that he be given the power tocontrol the child's movements. It is to the best advantage ofchild and state that the minor be under the care and guidanceof his parents, his natural guardians.As a general 'rule the infant is incapable of changing hisdomicile by his own act. "An infant's domiclie is not affectedby the removal of the infant from its former domicile by an un-authorized person or by the infant's own act without the consent.of parent or guardian" -(Sudler v. Sudler, 121 Ind 46). Themere leaving of his home by a minor and his living elsewheredo not create for him a new domicile in the eyes of the law. (Hessv. Kimball, 82 NJEq 311), The infant has no legal residence ofhis own, whatever his abode. His legal residence is that of hisfather. (In re Tharpe, 24 NY 444)There are three situations creating a capacity in the infantwho has reached the age of discretion to change his domicile fromTHE NOTRE DAME LAWYERthat of his parent. They are emancipation, abandonment, andmarriage. All there are much challenged and none is univer-sally held to be an occurrence that allows an infant to chose hisown domicile.On the qestion of emancipation early cases cited in 10Am. & Eng. Encyc. Law (2nd Ed) 31, note hold that an eman-cipated minor may gain a settlement of his own. (Dennysvillev. Trescott, 30 Me 470; Charleston v. Boston, 13 Mass 469; andLisbon v. Lyman, 49 NH 453). The recent case of Jackson v.Southern Flour and Grain Co., 146 Ga 153, indicates that emanici-pation empowers the infant to change his domicile in sayingthat the domicile of an infant is his father's, if the father is living,and parental authority is not voluntarily relinquished. The caseof Russell v. State, 62 Neb. 512, directly held that an emancipatedinfant could establish a domicile for himself. There, a youngman, being emancipated by his father, left his domicile of originin New York and took up his residence in Nebraska. Afterbeing there for eight months he was called for jury service andsat in a murder trial, having only come of age one month beforethe trial. By law male persons over twenty-one, having thequalifications of electors were made competent for jury service.To be a qualified voter you had to be over twenty-one and tohave resided in the country for six months. The defendant saidthe young man was not qualified, arguing that his residence un-til he was twenty-one years of age was New York, with hisfather. The court said that by emancipation the father had em-powered the minor to choose his own domicile, and concludedthat the young man had the requisite six months' Nebraska res-idence.A case suggesting abandonment as giving the minor whohas reached the age of discretion the privelege of changing hisdomicile is that 6f Bjornquisf v. Boston & A. R. Co., 25 Fed. 929.This case however merely suggests the proposition just men-tioned and is not authority for it. It is authority for the prop-osition that any minor orphan who has reached the age of dis-cretion may choose his own domicile. Here the minor's parentshad died and an uncle who had been caring for the child decidedto do so no longer. Being nineteen years old and left to shiftfor himself the minor decided to leave Massachusetts, where heTHE NOTRE DAME LAWYERhad cause of action for personal injuries against the defendantcorporation of Massachusetts; he went to Maine and there com-menced suit in the federal court. Later he returned to Mass-achusetts. Defendant pleaded that there was no diversity ofcitizenship at the time of the commencement of the suit, sayingthat the last domicile of the plaintiff's deceased parent was Mass-achusetts, and that the infant having no power to change hisdomicile was, at the time of the commencement of the suit, domi-ciled in Massachusetts, despite his residence in Maine. The courtdecided that the plaintiff, 1.eft to his own devices, was capable ofselecting his own domicile despite his minority. The court said,"None of the cases which have come to our attention have goneto the extent of holding that, under such circumstances, a minorwho has attained years of discretion may not acquire a new dom-icile. In all of them, where it has been held that a minor cannotacquire a new domicile of his own volition, it has appeared thathe was of immature years, or that he was subject to the direc-tion and control of a person standing. in the position of a naturalor statutory guardian." (Citing cases). Being of tender yearswas mentioned as preventing an infant's change 6i domicile byhis own volition in Loftin v. Carden, 203 Ala 405, and Miller v.Bode, 80 Ind App 338. A child abandoned by his father tookresidence with his grandparent. and upon the return of the fatherwas held to continue domiciled with his grandparent. (In reVance, 92 Cal 195).On the question of the effect of marriage on the infant'scapacity to acquire domicile the early case of Trammel v. Tram-mel, 20 Tex 406, held that a married male minor could not changehis domicile. His emancipation by marriage is not to such a de-gree. The later case of Deleware, L. & W. R. Co. v. Petrowsky,250 Fed 554 affirmed this rule The case further held that whenonce emancipated, as the minor in the case on being apprenticedto a relative, the subsequent death of the master worked no re-turn to the control of the father so as to deny the minor's rightto choose his own domicile thereafter. A minor female, unlikea male, upon her marriage escapes the parental control ofdomicile, but by operation of law takes that of her husband.A great list of authorities cited in Ann. Cas 1913E 1206 and in27 QJ 411 denies the right of the infant to change his domicile30 THE NOTRE DAME LAWYERand declares his domicile to follow that of his parent. This isperhaps for the best, but as a Pennsylvania judge said in theearly case of Mintzer's Estate, 2 Pa Dist 584, "The rule by whichthe domicile of a minor is made to follow that of the parentought not to be regarded as of inflexible obligation. Cases mustarise, in which to avoid hardships amounting-to cruelty, an infantmay acquire a domicile independent of the domicile of his par-ents."

Capacity of an Infant to Acquire an Independent Domicile

https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4319&amp;context=ndlr

Capacity of an Infant to Acquire an Independent Domicile

Abstract

Similar works

Full text

Available Versions

Notre Dame Law School: NDLScholarship