appointed at the domicile of the ward, and may be appointed in any State in which the person or any property of the ward is found. The general rule which governs the administration of the property in the one case may be the law of the domicile of the testator; in the other case, it is the law of the domicile of the ward.

As the law of the domicile of the ward has no extraterritorial effect, except by the comity of the State where the property is situated, or where the guardian is appointed, it cannot of course prevail against a statute of the State in which the question is presented for adjudication, expressly applicable to the estate of a ward domiciled elsewhere. Hoyt v. Sprague, 103 U. S. 613. Cases may also arise with facts so peculiar or so complicated as to modify the degree of influence that the court in which the guardian is called to account may allow to the law of the domicile of the ward, consistently with doing justice to the parties before it. And a guardian, who had in good faith conformed to the law of the State in which he was appointed, might perhaps be excused for not having complied with stricter rules prevailing at the domicile of the ward. But in a case in which the domicile of the ward has always been in a State whose law leaves much to the discretion of the guardian in the matter of investments, and he has faithfully and prudently exercised that discretion with a view to the pecuniary interests of the ward, it would be inconsistent with the principles of equity to charge him with the amount of the moneys invested, merely because he has not complied with the more rigid rules adopted by the courts of the State in which he was appointed.

The domicile of William W. Sims during his life and at the time of his death in 1850 was in Georgia. This domicile continued to be the domicile of his widow and of their infant children until they acquired new ones. In 1853, the widow, by marrying the Rev. Mr. Abercrombie, acquired his domicile. But she did not, by taking the infants to the home, at first in New York and afterwards in Connecticut, of her new husband, who was of no kin to the children, was under no legal obligation to support them, and was in fact paid for their board out of their property, make his domicile, or the domicile derived by her from him, the domicile of the children of the first husband. Immediately upon her death in Connecticut, in 1859, these children, both under ten years of age, were taken back to Georgia to the house of their father's mother and unmarried sister, their own nearest surviving relatives; and they continued to live with their grandmother and aunt in Georgia until the marriage of the aunt in January, 1860, to Mr. Micou, a citizen of Alabama, after which the grandmother and the children resided with Mr. and Mrs. Micou at their domicile in that State.

Upon these facts, the domicile of the children was always in Georgia from their birth until January, 1860, and thenceforth was either in Georgia or in Alabama. As the rules of investment prevailing before 1863 in Georgia and in Alabama did not substantially differ, the question in which of those two States their domicile was is immaterial to

the decision of this case; and it is therefore unnecessary to consider whether their grandmother was their natural guardian, and as such had the power to change their domicile from one State to another. See Hargrave's note 66 to Co. Lit. 88 b; Reeve, Domestic Relations, 315; 2 Kent, Com. 219; Code of Georgia of 1861, §§ 1754, 2452; Darden v. Wyatt, 15 Georgia, 414.

Whether the domicile of Lamar in December, 1855, when he was appointed in New York guardian of the infants, was in New York or in Georgia, does not distinctly appear, and is not material; because, for the reasons already stated, wherever his domicile was, his duties as guardian in the management and investment of the property of his wards were to be regulated by the law of their domicile.

On petition for re-hearing, GRAY, J., said (114 U. S. 218): If the domicile of the father was in Florida at the time of his death in 1850, then, according to the principles stated in the former opinion, the domicile of his children continued to be in that State until the death of their mother in Connecticut in 1859. In that view of the case, the question would be whether they afterwards acquired a domicile in Georgia by taking up their residence there with their paternal grandmother. Although some books speak only of the father, or, in the case of his death, the mother, as guardian by nature (1 Bl. Com. 461; 2 Kent, Com. 219), it is clear that the grandfather or grandmother, when the next of kin, is such a guardian. Hargrave, note 66, to Co. Lit. 88 b; Reeve, Dom. Rel. 315. See also, Darden v. Wyatt, 15 Ga. 414. In the present case, the infants, when their mother died and they went to the home of their paternal grandmother, were under ten years of age; the grandmother, who appears to have been their only surviving grandparent and their next of kin, and whose only living child, an unmarried daughter, resided with her, was the head of the family; and upon the facts agreed it is evident that the removal of the infants after the death of both parents to the home of their grandmother in Georgia was with Lamar's consent. Under these circumstances, there can be no doubt that by taking up their residence with her, they acquired her domicile in that State in 1859, if their domicile was not already there.1

1 The domicile of an infant follows that of his father: Metcalf v. Lowther, 56 Ala. 312; Kennedy v. Ryall, 67 N. Y. 379; and so long as the infant is not emancipated he can obtain no other domicile, though living away from his father's home: Wheeler 2. Burrow, 18 Ind. 14; even if he has run away from home: Bangor v. Readfield, 32 Me. 60; or has been bound out to service by the public authorities: Oldtown v. Falmouth, 40 Me. 106.

Upon the death of the father, the mother's domicile ordinarily becomes that of the minor, and if she being sui juris changes her domicile that of the child follows; subject perhaps to the condition that the change be made bona fide, and not for the purpose of securing an advantage at the expense of the child or the child's estate. Potinger v. Wightman, 3 Mer. 67; Brown v. Lynch, 2 Bradf. 214; School Directors v. James, 2 W. & S. 568. A posthumous child, therefore, takes the domicile of the mother at its birth Watson v. Bondurant, 30 La. Ann. 1303 (semble). If, however, the mother marries again, since she is no longer sui juris, she cannot affect the domicile of the minor: School Directors v. James, 2 W. & S. 568; Allen v. Thomason, 11 Humph.

BLODGETT, J. The maxim that the domicile of the wife follows that of her husband "results from the general principle that a person who is under the power and authority of another possesses no right to choose a domicile." Story, Confl. Laws, s. 46. "By marriage, husband and wife become one person in law, that is, the very being or legal existence of the wife is suspended during the marriage, or at least is incorporated and consolidated into that of the husband, under whose wing, protection, and cover she performs'everything." 1 Bl. Com. 442. Such being the common-law status of the wife, her domicile necessarily fol536 (contra, Succession of Lewis, 10 La. Ann. 789; and see Wheeler v. Hollis, 19 Tex. 522); and therefore if the mother remarries before the birth of the posthumous child, the child takes the domicile of its mother before the second marriage: Oxford v. Bethany, 19 Conn. 229.

An infant does not get the domicile of an appointed guardian ex officio if the infant actually lives elsewhere. Louisville v. Sherley, 80 Ky. 71; School Directors v. James, 2 W. & S. 568; Petigru v. Ferguson, 6 Rich. Eq. 378. The guardian may, however, change the infant's domicile by changing the actual home of the infant within the State. Kirkland v. Whately, 4 All. 462; contra, Marheineke v. Grothaus, 72 Mo. 204. He cannot, however, change the ward's domicile outside the State, since his authority over the ward's person ceases at the State line. Douglas v. Douglas, L. R. 12 Eq. 617, 625; Robins v. Weeks, 5 Mart. N. s. 379; Trammell v. Trammell, 20 Tex. 406; but see Wood v. Wood, 5 Paige, 596, 605; Wheeler v. Hollis, 19 Tex. 522. A fortiori such a change cannot be made without the guardian's consent. Hiestand v. Kuns, 8 Blackf. 345; Munday v. Baldwin, 79 Ky. 121.

An emancipated minor may acquire a new domicile by his own will: Lubec v. Eastport, 3 Me. 220; and such minor no longer shares a new domicile acquired by the father: Lowell v. Newport, 66 Me. 78; or by the mother, after the father's death: Dennysville v. Trescott, 30 Me. 470; Charlestown v. Boston, 13 Mass. 469. After emancipation the father cannot change the child's domicile. In re Vance, 92 Cal. 195, 28 Pac. 229.

In Georgia, where a guardian has no right to restrain the person of a ward twenty years old, such a ward may acquire a domicile by his own choice. Roberts v. Walker, 18 Ga. 5.

An apprentice takes the domicile of his master. Maddox v. S., 32 Ind. 111.

An insane person, though under guardianship, may yet change his domicile if he in fact retains sufficient power of will. Culver's Appeal, 48 Conn. 165; Concord v. Rumney, 45 N. H. 423; Mowry v. Latham, 17 R. I. 480, 23 Atl 13. A person non compos from birth, continuing to live in his father's family after reaching his majority, follows his father's domicile. Sharpe v. Crispin, L. R. 1 P. & D. 611; Monroe v. Jackson, 55 Me. 55; Upton v. Northbridge, 15 Mass. 237. If such a person has an appointed guardian, the latter may change the domicile of the ward into his own family by making him an inmate of it: Holyoke v. Haskins, 5 Pick. 20; Jackson v. Polk, 19 Ohio S. 28; or even, it has been held, to a new independent home: Anderson v Anderson, 42 Vt. 350. It has been held that if one non compos becomes emancipated by the death of his parents and the failure of appointment of a guardian, he may gain a residence where he actually lives. Gardiner v. Farmington, 45 Me. 537.- ED. 1 The opinion only is given it sufficiently states the case. — - ED.

lowed her husband's, and the maxim applied without limitation or qualification.

But the common-law theory of marriage has largely ceased to obtain everywhere, and especially in this State, where the law has long recog nized the wife as having a separate existence, separate rights, and separate interests. In respect to the duties and obligations which arise from the contract of marriage and constitute its object, husband and wife are still, and must continue to be, a legal unit; but so completely has the ancient unity become dissevered, and the theory of the wife's servitude superseded by the theory of equality which has been established by the legislation and adjudications of the last half century, that she now stands, almost without an exception, upon an equality with the husband as to property, torts, contracts, and civil rights. Pub. Sts., c. 176; ib., c. 90, s. 9; Seaver v. Adams, 66 N. H. 142, 143, and authorities cited. And since the law puts her upon an equality, so that he now has no more power and authority over her than she has over him, no reason would seem to remain why she may not acquire a separate domicile for every purpose known to the law. If, however, there are exceptional cases when for certain purposes it might properly be held otherwise, there can be in this jurisdiction no reason for holding that when the husband has forfeited his marital rights by his misbe havior, the wife may not acquire a separate domicile, and exercise the appertaining rights and duties of citizenship with which married women have become invested. To hold otherwise would not only break the line of consistency and progress which has been steadily advanced until the ancient legal distinctions between the sexes, which were adapted to a condition that has ceased to exist and can never return, have been largely swept away, but it would also be subversive of the statutory right of voting and being elected to office in educational matters which wives now possess (Pub. Sts., c. 90, ss. 9, 14), inasmuch as it would compel the innocent wife to reside and make her home in whatever voting precinct the offending husband might choose to fix his domicile, or to suffer the deprivation of the elective franchise; and if he should remove his domicile to another State, and she should remain here, the exercise of all her rights dependent upon domicile would be similarly affected.

This cannot be the law. On the contrary, the good sense of the thing is, that a wife cannot be divested of the right of suffrage, or be deprived of any.civil or legal right, by the act of her husband; and so we take the law to be. Whenever it is necessary or proper for her to acquire a separate domicile, she may do so. This is the rule for the purposes of divorce (Payson v. Payson, 34 N. H. 518; Cheever v. Wilson, 9 Wall. 108, 124; Ditson v. Ditson, 4 R. I. 87, 107; Harding v. Alden, 9 Greenl. 140), and it is the true rule for all purposes.

Upon these views, the testatrix was domiciled in this State at the time of her decease, and, as the consequence, distribution of her estate is to be made accordingly. Goodall v. Marshall, 11 N. H. 88; Vande

walker v. Rollins, 63 N. H. 460, 463, 464. The rights of her husband therein are not affected by his written assent to the will. The Massachusetts statute, making such assent binding, has no extraterritorial force, and there is no principle upon which it can be given effect in this jurisdiction without violating the positive enactments of our statute relative to the husband's distributive share in his deceased wife's estate. Pub. Sts., c. 195, ss. 12, 13. This cannot be done. If the result shall be to give to this husband a benefit which the testatrix did not intend he should receive, and which in justice he ought not to have, it is to be regretted; but hard cases cannot be permitted to make bad equity any more than bad law. Case discharged.1

BERGNER & ENGEL BREWING CO. v. DREYFUS.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[Reported 172 Massachusetts, 154.]

1898.

HOLMES, J. This is a suit by a Pennsylvania corporation to recover a debt for goods sold and delivered here. The only defence is a discharge in insolvency under our statutes, which of course commonly is no defence at all. This was reaffirmed unanimously in 1890, after full consideration of the objections now urged; and it was decided also, not for the first time, that the general language of the insolvent law was not intended to affect access to Massachusetts courts by a local rule of procedure unless the substantive right was barred by the discharge. Phoenix National Bank v. Batcheller, 151 Mass. 589. The grounds urged for an exception in the present case are: that the plaintiff, although its brewery and main offices are in Pennsylvania, has an office in Boston, and maintains here a complete outfit for the distribution of its products; that it has a license of the fourth class under Pub. Sts. c. 100, § 10; and that it has complied with the laws regulating foreign corporations doing business here, including, we assume, that which requires the appointment of the commissioner of corporations its "attorney upon whom all lawful processes in any action or proceeding against it may be served." St. 1884, c. 330, § 1. See St. 1895, c. 157. . . . The independent ground on which it is urged that the plaintiff is subject to the insolvent law in the present case is that the plaintiff is domesticated in this State, as shown by the facts above recited, of which the appointment of an attorney is only one. The word "domesticated," which was used in the argument for the defendant, presents no definite legal conception which has any bearing upon the case. We presume that it was intended to convey in a conciliatory form the notion that the plaintiff was domiciled here, "resident," in 1 Acc. In re Florance, 54 Hun, 328. - ED.

2 The statement of facts and part of the opinion are omitted. ED.