1808* and cruel; and if the particular circumstances raising very just sentiments in every mind, could prevail against the uniformity DESESof the rule it is so much the duty of courts of justice to estab- BATS lish, there could be no case in which the feelings would have V. ed one further. BERQUIER. On the whole matter I find myself constrained to deliver my opinion, that judgment should be entered for the defendant. SMITH J. Concurred. BRACKENRIDGE J. Subsequent to the argument in this case I examined the authorities cited, and the civilians generally on the subject. An abstract of the investigation with my conclusion has been mislaid, and cannot now be recurred to. But it will suffice to say, at this time, that my conclusion was decisively against the will, and in favour of the successor ab intestato. (a) Judgment for defendant. (a) The case of Desesbats v. Berquier, which decides the effect of domicil upon a will of moveables, and the following case of Guier and O'Daniel, which contains a very full exposition of the principles by which domicil is ascertained, are the only cases in Pennsylvania in which these questions have been solemnly discussed and settled. The reporter is therefore induced to connect them in this manner. The case arose in the Orphan's Court for the city and county of Philadelphia, between STEPHEN GUIER, claiming as the father of THOMAS GUIER deceased intestate, and FRANCIS O'DANIEL and WILLIAM YOUNG, claiming on behalf of the brothers and sisters of the intestate. THE sum of 1400 dollars was in dispute under the following circumstances. Thomas Guier, the intestate, was the captain of a vessel, and was murdered in the West Indies in 1801. The money in controversy was part of the proceeds of certain coffee which came to Philadelphia, and was sold on his account after his death. O'Daniel and Young claimed it for his brother and sisters by the law of Delaware; the father claimed it for himself by the law of Pennsylvania; and the question for the Court was, by which law the distribution should be directed. The facts were these: Stephen Guier the father, and his family, including the intestate at that time a minor, removed from the state of Connecticut to Delaware in March 1795; where they settled on a farm belonging to his son Gideon, who was already resident there. In the same year Thomas sailed from Wilmington in Delaware, as a sailor in a vessel commanded by Gideon; 1808. Wednesday, It is not ne- that the at THIS Lessee of NEFF against NEFF. "HIS was a motion by Rush and Hopkinson for the defendant, to remove this cause from the general to the special party to a jury list, although it had been more than three years at issue. special jury They relied on the acts of Assembly 2 St. Laws 267.691., which torney should entitle parties to a special jury, and put no limit to the time of apcertify that that plying for it; and also on a case between Hall and Vandegrift at tended for the last term, in which the court allowed the change to be made, delay. There after the cause had been several years on the general jury list. limited with- It was essential they said in this case, because the controversy in which a had interested a large community, and it was highly probable apply for a from the mode of returning a general jury, the defendant might special jury. have on the pannel some of his decided opponents. is no time party must and constantly afterwards followed the sea. In a second voyage with Gideon from Wilmington, he was cast away, and returned to Wilmington. In the winter of 1796 he lived in Gideon's house in Wilmington, and there went to school to learn navigation. In March 1797, he took a protection from the Collector of Philadelphia and sailed from that port. From 1796 to 1798, during some part of which period he was of age, he always boarded when ashore with Gideon's widow in Wilmington, where he kept his trunks, clothes, books, and papers; and from 1798 to 1800 he boarded when ashore at an inn in the same town. In 1800 he became a member of a Freemason's Lodge at Wilmington, and contributed his proportion of the room-rent. In the summer of 1801 he went to Connecticut on a visit to his relations; but, except in 1797 when he sailed from Philadelphia, and once when he sailed from New-York, all his voyages from 1795 to 1801 began at Wilmington, during which period he was successively seaman, mate, and captain. All his owners resided at Wilmington. The protection from the Collector at Philadelphia stated him to be twenty three years of age; but several witnesses swore to his being under age when he first went to Delaware. The bank of Wilmington required two indorsers on his notes, as they did on the notes of all non-residents; and he never owned or rented a house, had never been assessed or paid a tax, nor ever voted at an election in the state of Delaware, though he once offered his vote and it was rejected. In 1801 he sailed and never returned. The sum in dispute had never been in Delaware, the coffee from which it proceeded having come direct from the West Indies to Philadelphia. C. F. Ingersoll for the father, argued it upon three points. 1. That Thomas Guier had no domicil any where. 2. That where there is no domicil of preference, custom and the law of Pennsylvania establish the lex loci rei sitæ as the rule of succession to personal as well as to real property. 3. That the locus rei site being Pennsylvania, and no domicil of preference being shewn elsewhere, by the law of Pennsylvania the father was entitled to the succession. Hopkinson and Rodney for the Delaware claimants. Wallace opposed the motion on this ground, that the agreement of the attornies of this Court, which had been made a rule of the court, demanded as a prerequisite to a special jury, that the attorney should certify it was not intended for delay. It was true that no affidavit of defence was required by law in an action of ejectment, but the certificate was an independent matter. Here delay would be the consequence from the known state of the special jury list, the defendant had been negligent in not making an earlier application, and there was no certificate. Per CURIAM. The certificate is not required by the act of Assembly, and the rights of the parties are to be tested by that. The law limits no time for an application of this kind, and as the court thought proper to allow it in the case alluded to, it is essential to uniformity of decision that the motion should be granted. On the 7th July 1806, the opinion of the Court was delivered by RUSH President. The case is embarrassed with little or no difficulty, whether considered on legal principles or matters of fact. The question is, where was he domiciled at the time of his death? and by what law shall the personal estate be distributed? It is necessary to state both the law and the facts briefly. The position is too clear to be controverted, that personal estate must go according to the laws of the country in which a man is domiciled at the time of his death. There can be but one domicil for the purpose of distributing personal estate; and when that is ascertained, all such property wherever dispersed, will go in succession according to the laws of the country in which the intestate was last domiciled. Debts, having no situs, follow the person of the creditor; and the lex loci rei sita is with great propriety totally disregarded. A man is prima facie domiciled at the place where he is resident at the time of his death; and it is incumbent on those who deny it, to repel this presumption of law, which may be done in several ways. It may be shewn that the intestate was there as a traveller, or on some particular business, or on a visit, or for the sake of health; any of which circumstances will remove the presumption that he was domiciled at the place of his death. 1. Bos. and Pul. 230. On a question of domicil the mode of living is not material, whether on rent, at lodgings, or in the house of a friend. The apparent or avowed inten. tion of constant residence, not the manner of it, constitutes the domicil. Minute circumstances in inquiries of this sort are taken into consideration: the immediate employment of the intestate, his general pursuits and habits in life, his friends and connexions, are circumstances which, thrown into the scale, may give it a decisive preponderance. There is no fixed period of time necessary to create a domicil. It may be acquired after the shortest residence under certain circumstances; and under others, the longest residence may be insufficient for the purpose. 1808. Lessee of NEFF υ. NEFF. 1808. Wednesday, the act of 9th no appeal is entered to the next Common THIS GODSHALL against MARIAM. The regula- HIS was an action of trespass to recover damages from tion of a lot the defendant for breaking and entering the plaintiff's by regula. tors under close, and removing five pannels of fence. The defendant March 1771, pleaded not guilty, and liberum tenementum. Upon the trial from which before the Chief Justice at Nisi Prius in June 1806, the plaintiff proved a regular title to a lot of twenty feet in breadth by one hundred and ten feet in depth, on Third street in the Pleas, is con- Northern Liberties, which lot was stated in a deed bearing date clusive as to the 15th November 1794, from Dr. John Redman to the person under whom the plaintiff claimed, to be "bounded northward "by a thirty five feet corner lot, granted or intended to be erected con-"granted by the said John Redman to Adam Logan." He also formably shewed that his lot was duly regulated on the 25th July 1798, thereto; but not so as to by the proper officers under the act of 9th March 1771, by the lot upon marking the lines in front and in rear, and putting stakes at all which there the corners; that the owner of the Northern lot had knowledge are no build- of the regulation; that there had been no appeal from any order ings. the founda tions and party walls of buildings the lines of Bynkershoek, we are told, would not venture to define a domicil. Vattel says, it is a fixed residence, with an intention of always staying there. It may be defined, in our opinion, to be a residence at a particular place accompanied with positive or presumptive proof of continuing it an unlimited time; and is the conclusion of law on an extended view of facts and circumstances. The determination in the case of Major Bruce in the House of Lords does not militate with any part of this definition. Bruce left Scotland when very young, and became completely domiciled in the East Indies, in word and in deed, by a residence of sixteen or seventeen years. Towards the close of his life, and after making a fortune, he expressed a resolution of spending the remainder of his days in his native country, and accordingly took measures to send his property before him, when he suddenly died. It was held that he was clearly domiciled in the East Indies in the first instance, and that the intention to change could have no effect. Though declarations are good evidence that a person has changed his domicil, no fixed views of that sort can be supposed equivalent to the actual abandonment of one domicil, and the acquisition of another. The domicil of origin arises from birth and connexions. A minor during pupillage cannot acquire a domicil of his own. His domicil therefore follows that of his father, and remains until he acquires another, which he cannot do until he becomes a person sui juris. With respect to the facts in the case before us, Thomas Guier left Connecticut in the year 1795, under age, in company with his father Stephen, who, quitting his native country, migrated to Delaware, and became a resident of that state by acts of the most unequivocal nature. There cannot be the least V. of the regulators; that the plaintiff had built a brick house con- 1808. formably with the regulation, twenty feet in front and about GODSHALL twenty five feet deep, and that he erected the fence in a line with the side of his house. The trespass complained of, was the de- MARIAM. fendant's taking up this fence and setting it down in the plaintiff's lot, about two feet six inches within the line of regulation. The defendant shewed title to the before mentioned corner lot of thirty five feet, under a deed from Redman to Logan of 15th November 1794, in which it was said to be bounded "north"ward by Coates's street." He then gave in evidence a regulation of the cross streets in the Northern Liberties, commenced before the regulation of the plaintiff's lot, but not published and confirmed until the 5th August 1799. This regulation had no connexion with the regulation of lots, but was a distinct thing, authorized by an act of 17th April 1795; and the sur doubt that the father became domiciled there. His son Gideon was the harbinger of the family, and was actually a resident in Delaware in the year 1792, when he was a married man, a housekeeper, and the commander of a vessel. Induced probably by the establishment of his son in that part of the world, the old man followed his fortunes, and settling under his immediate auspices, became a farmer; a mode of life in itself more indicative than any other of views of permanent residence. The father being thus domiciled in Delaware, his minor son Thomas was domiciled there also, who while under age never acquired or could acquire a domicil sui juris. If it were a point of doubtful decision whether Thomas was ever domiciled by any action of his own, Delaware would of course he his domicilium originis, and the country whose law would regulate the succession to his personal estate. But we do not rest his domicil in Delaware on this ground: he acquired one of his own. From the time old Guier and family, with his son Thomas, arrived in Delaware, they seem to have been connected with Gideon Guier, and to have been both in some degree dependent upon him. He settled his father on a plantation, and Thomas became his apprentice in the seafaring business. Having served out his time, he received wages from his brother. About the year 1797 Thomas was shipwrecked, and returning by the way of New York, he proceeded not to Connecticut but to Wilmington. He studied navigation after he was of age in the borough of Wilmington. His diligence and good conduct recommended him to notice. In a year or two he became a mate, then a captain and part owner of a vessel, in which character he sailed in 1801, when he was murdered by the blacks in the island of St. Dəmingo. During this whole period we hear nothing from him of the animus revertendi. So far from it, that after paying a visit to his friends in Connecticut in 1800 or 1801, he hastened back to Wilmington as the place of his employment, and the residence of his friends. Not a single witness of the great number who have been examined in Connecticut and Delaware, ever heard a word escape his lips of his intention to return; or that Wilmington was only the place of his temporary residence. Thomas Guier entered the world as an VOL. I. 2 Y |