Physical presence in a country is a tangible fact, and may be proved, like other facts of that kind, by the testimony of eyewitnesses or by circumstantial evidence. It is susceptible of easier proof than the animus, because it is tangible, visible, and more or less notorious," while the intention, being rarely expressed, must usually be inferred from the acts of the parties or from surrounding circumstances.

Circumstantial evidence is seldom needed to prove the fact of presence. If such evidence is called for, it will usually be by reason of uncertainty as to the party's identity. In most cases where a question of domicil is raised, the dispute is not with regard to the party's presence, but with respect to the intention." § 61. The Animus Manendi. The last essential of a domicil of choice is the intention to remain permanently or for an indefinite time. The intention should not be to remain for a fixed period (however long) and then to move away. There must be a fixed and definite purpose to remain permanently, or at least for an unlimited or indefinite time, without any definite intention of ultimate removal.1

But it is not necessary that there should be a fixed intention to remain during one's whole life. A mere floating intention to return to a former home or to live elsewhere at some future period unfixed and contingent upon circumstances, as upon an indefinite restoration to health or when one's fortune has been made, will not prevent the acquisition of a domicil at the new Eq. (S. C.) 1, 39 Am. Dec. 142, 143-144; White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Hill v. Hill, 166 Ill. 54, 46 N. E. 751; State v. Palmer, 65 N. H. 9, 17 Atl. 977.

5 Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502, 508; Jac. Dom. § 364. Jac. Dom. §§ 364, 365.

1 Allgood v. Williams, 92 Ala. 551, 8 So. 722; Young v. Pollak, 85 Ala. 439, 5 So. 279, 282; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Hood's Estate, 21 Penn. St. 106, 116; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917; Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21; Hill v. Hill, 166 Ill. 54, 46 N. E. 751, 752; Dupuy v. Wurtz, 53 N. Y. 556; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am. Dec. 258; Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 144; City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471, 473.

2

abode. The intention however must be settled and fixed. The party must have definitely made up his mind to remain. A mere probability, however great, that he will stay, or an intention conditional upon a contingency, such as his obtaining employment, finding the climate suitable to his health, or liking the people of the community, will not suffice."

The latter case is to be distinguished from that of one who, induced by the probability of finding employment, a suitable climate, etc., definitely determines to live permanently in a particular spot. In the former case the definite animus has not been formed. In the latter, it has been formed, though induced by probabilities only.

§ 62. Commencement of the Intention. -The animus manendi alone is not sufficient to constitute a domicil of choice, nor is mere physical presence enough. Both must unite. The moment that both exist at the same time the domicil is created. Hence no formation of an intention is of avail unless and until it is accompanied by physical presence. Though one breaks up his home in one State, intending to remove to another, but in itinere changes his mind before reaching the latter State, he cannot be held to have been domiciled there. He retains his abandoned domicil until he acquires another facto et animo.1

2 Story, Confl. L. § 46; Hoskins v. Matthews, 25 L. J. (Ch.) 689, 8 DeG. M. & G. 13, 35 Eng. L. & Eq. 532; Brunel v. Brunel, L. R. 12 Eq. 298; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 505; Larquie v. Larquie, 40 La. Ann. 457, 4 So. 335, 336-337; Hallett v. Bassett, 100 Mass. 167; Holmes v. Greene, 7 Gray (Mass.), 299; Whitney v. Sherborn, 12 Allen (Mass.), 111, 114; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 79; White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107, 109; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917; Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21; Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 597, 601.

8 Ross v. Ross, 103 Mass. 576, 577; Whitney v. Sherborn, 12 Allen (Mass.), 111, 114; Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791, 792; Smith v. People, 44 Ill. 23.

See Hegeman v. Fox, 31 Barb. (N. Y.) 475, 483-484.

1 Steer's Succession, 47 La. Ann. 1551, 18 So. 503; Borland v. Boston, 132 Mass. 89, 42 Am. Rep. 424; Shaw v. Shaw, 98 Mass. 158; Otis v. Boston, 12 Cush. (Mass.) 44; Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107, 109. See White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597.

Some question has been raised whether the same principle will apply where the emigrant, instead of changing his mind, dies in itinere. Some most respectable authority seems to favor a change of domicil in such case. But it is believed there is no sound principle upon which this exception to the general rule can be predicated, and the weight of authority is against it.

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Again, an intention, though definitely fixed, to reside in a given State at a future time, even though it be in the immediate future, and though coupled with actual presence there at the time of the formation of the intent, will not suffice to constitute a domicil of choice. The presence must be coupled with the intent to reside there from that moment.*

Thus, one who contemplates moving from one State to another

2 White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597. See Story, Confl. L. §§ 47, 48; Munroe v. Douglas, 5 Madd. 405. Judge Story however here applies this principle only in case the party is returning from a foreign domicil of choice to his original or native domicil, but he does not confine it to the case of death in itinere. He admits the doctrine in any case where a party leaves a foreign domicil of choice on a final return to his original domicil, basing it upon the maxim that the domicil of origin easily reverts. See post, §§ 65, 66.

8 Bell v. Kennedy, L. R. 3 H. L. 323; Bruce v. Bruce, 2 Bos. & Pul. 229, 230, note; Shaw v. Shaw, 98 Mass. 158; Harvard College v. Gore, 5 Pick. (Mass.) 370.

4 See Otis v. Boston, 12 Cush. (Mass.) 44. The case of White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597, is not opposed to this view, though at first sight it appears to be. In that case, the party broke up his establishment in West Virginia and removed to a house across the State line in Pennsylvania, which he had already rented. Upon leaving his West Virginia house in the morning, he intended to make the Pennsylvania house forthwith his home, intending to remain there thenceforward. But after arriving there he decided to return for the night to his brother's house in Pennsylvania, where he was taken ill and died, without ever having returned to the Pennsylvania house. It was held he was domiciled in Pennsylvania. This decision was clearly correct. The physical presence in Pennsylvania united with the intention to reside there permanently from that moment. His subsequent decision to return for the night to West Virginia did not affect the question. If when he started out that day from the West Virginia house he had had the intention not to begin his residence in the Pennsylvania house until the following morning, the decision would probably have been different.

and goes thither to select a suitable dwelling before moving, will not by that act alone be held to have acquired a domicil there. His intention to reside will be regarded as conjectural merely, and not definite enough to create a domicil; nor has he in such case as yet finally abandoned his former domicil. But if under like circumstances, before he goes into the new State upon his tour of investigation, he breaks up his establishment in his former domicil entirely, even though he does not bring his family with him but sends them to a third State pending his selection of a dwelling-place, so that he does not anticipate returning to his former domicil at all, it is said that he will acquire a new domicil even before a final settlement, for he has definitely abandoned his former domicil."

On the other hand, it is not essential to the creation of a domicil of choice that the intention should be formed immediately upon one's entry into a State. The mere presence there will not suffice of itself; there must be an intention also, and until both concur no domicil arises. But the intention may spring up later, and if the actual presence continues at that time the new domicil is at that instant acquired."

§ 63. Duration of the Intention. - A domicil once created is retained until another is acquired, which in the case of a domicil of choice can in general only be facto et animo. If the purpose to remain in a country permanently has once existed, and while in existence was coupled with actual physical pres

5 Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61. See Bruce v. Bruce, 2 Bos. & Pul. 229, 230, note; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.

• Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704. See Cooper v. Beers, 143 Ill. 25, 33 N. E. 61. In the latter case, it seems from the opinion that there had been no actual breaking up of the establishment in St. Louis (the parties' former home). The court says: "No act intended as an act of removal or in aid of removal to Illinois is proved." If the proposition mentioned in the text is true, a fortiori would it apply if the party brings his family with him to the State of his intended residence. See White v. Tennant, 31 W. Va. 790, 8 S. E. 596. The whole principle however must be taken in subordination to what has been said ante, § 24.

7 Udny v. Udny, L. R. 1 Sc. App. 441, 458. See Colburn v. Holland, 14 Rich. Eq. (S. C.) 176, 233.

ence there, a domicil of choice arises. And since it can be changed thereafter only by the acquisition of a new domicil in the same way,1 it follows that no subsequent change of intention (alone), though the change take place the next day or the next moment, will effect a change of domicil.

We may even go a step further and lay it down as a corollary that though physical absence from the country be united with an intention to make that country no longer the party's home, the domicil will not in general be thereby destroyed. These mere negative propositions will effect no change of domicil. The propositions must be affirmative. The party must not only be absent from his former home, but must be present in the new; he must not only intend not to make the former home his permanent abode hereafter, but must affirmatively intend to make the new home his permanent abiding place. And both these affirmative propositions must coexist.2

§ 64. Evidence of Animus Manendi. As in all questions of intention, it is often extremely difficult to arrive at a certain conclusion touching the animus manendi in cases of domicil. Much of the difficulty in ascertaining the domicil arises from this source. The trouble for the most part lies in the fact that the intention is rarely expressed, and must be inferred from all the surrounding circumstances.

The question in such cases is not what the party has said, but what was his real intention. The fact that one openly proclaims a place to be his permanent home does not make it so unless in fact the intention to reside there permanently exists. In general, however, the declarations of the party are admitted in evidence of the intention, as part of the res gestœ.1

1 A modification of this principle may be noted in the case of a party who abandons a foreign domicil of choice, purposing to return to the country of which he is a citizen. See post, § 66.

2 See City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471; Dupuy v. Wurtz, 53 N. Y. 556; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am. Dec. 258; Shaw v. Shaw, 98 Mass. 158; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61; Mitchell v. United States, 21 Wall. 350.

1 Jac. Dom. §§ 449 et seq., to which the reader is referred for a full