DOMICIL OF MARRIED WOMEN.

MATTER OF FLORANCE, 54 HUN. (N. Y.) 328, (1889).

APPEAL from an order of the surrogate court of the county of New York, denying a motion made by the husband of Rosalie Florance, deceased, to vacate or set aside the probate of the will of the deceased or to modify the same, which order was entered April 24, 1889, in said surrogate's office.

George H. Yeaman, for the appellants.

Charles E. Miller, for the executors, respondents.

Edward W. Sheldon, for the United States Trust Company, as trustee under the will.

Meyer Butzel, special guardian.

VAN BRUNT, P. J.:

This application is a renewal of one made in June, 1888, pursuant to leave duly given.

It appears from the papers before the learned surrogate that the petitioner and appellant resides in the city of Philadelphia, State of Pennsylvania, and that he was the husband of Rosalie Florance, who died on October 12, 1887, in Europe. That in November, 1887, the last will and testament of said Rosalie was filed for probate with the surrogate of New York, and at the same time a petition was presented alleging that she had been, previous to her death, a resident of the county of New York. A citation was duly issued to and served upon all persons entitled to notice, including the petitioner, to attend the probate of the will. That the petitioner neglected to appear and the said will was admitted to probate and letters testamentary were issued thereon.

The petitioner stated in his petition that he did not attend the probate of the will because he did not suppose that any of his rights would be affected thereby, and that within a week or so after said probate the petitioner learned that said will had been improperly probated, in that the deceased was not a resident of New York at the time of her death, and he was advised by counsel that steps should be taken to modify and correct said probate. That thereupon, on June 21, 1888, a petition was presented to the Surrogate's Court upon which a citation was issued and such pro

ceeding had, that, in October, 1888, the motion was denied, and that pursuant to leave granted, the petition in question was presented in December, 1888.

It further appeared that the petitioner and said Rosalie were married in the year 1860, in the city of New York, where she was born and had always resided up to the time of her marriage to the petitioner; that the petitioner and his said wife then went to live in Philadelphia, and resided there until 1873, when they broke up housekeeping and resided in various places. In the fall of 1875, he petitioner and his wife finally separated from one another, he making his home in Philadelphia, and she, with three children, in New York, she taking care of and maintaining them. The said Rosalie, from her savings of some property left her, accumulated some $60,000, which comprised her estate at her death.

The petitioner claims that as no legal separation had taken place between them, although they had lived apart for twelve years, the residence of his wife was that of her husband, viz., Pennsylvania, and that, by the laws of said State, he was entitled to share in her estate, which would not be the case were she a resident of New York.

The whole claim of the plaintiff is based upon the old rule that a woman by marriage acquires the domicile of her husband and changes it with him. It is admitted that a wife may procure a separate domicile for purposes of divorce, but it seems to be claimed that such domicile cannot be procured for any other purpose. The old rule in reference to a married woman's domicile cannot, certainly, prevail in view of the rights which are recognized to be hers by the statutes.

The property relations between husband and wife have been entirely changed since the rule in question has obtained, and the reasons for the rule no longer exist. The wife is now a distinct legal entity, having in the disposition of her property all the rights, and even more than a husband has ever possessed, and the husband has no control whatever over her movements or her disposition of her property. In the case at bar it appears that in 1875 the petitioner and his wife agreed to separate, she to take their children and maintain them. They did separate, he going to

Philadelphia and she living in New York, which had been her home before marriage, and supporting their children from her own means. There is no pretense that the petitioner ever con tributed a cent to the support of his wife or their children since 1875, or offered to do so, and the best that he can say in his petition is that he never refused to provide a home for his said wife or her children in the city of Philadelphia. Probably he was never asked to do so, and, consequently, did not refuse, but he nowhere alleges that he offered to provide a home for his wife and children anywhere, and probably he did not.

They had agreed to live separate, and she had agreed to support herself and her children. She then, by and with his consent, acquired a domicile in New York, made that her home and that of her children, and certainly if she was enough of a resident to institute divorce proceedings, as is conceded, she is enough of a resident to leave her property to her children and to be protected from the claims of a husband with whom she has not lived for twelve years, and who has not, during that time, either contributed or offered to contribute to her support or to that of their children and who desires now, under a legal fiction, to take away from his own children a portion of their mother's inheritance.

The motion was decided correctly by the learned surrogate, and the order appealed from should be affirmed, with costs to each of the parties appearing as respondents.

DANIELS and BARRETT, JJ., concurred.

Order affirmed, with costs to each of the parties appearing as respondents.

DOMICIL OF INFANTS.

IN RE VANCE, 92 CAL. 195, (1891).

APPEAL from an order of the Superior Court of Sonoma County granting letters of guardianship.

The facts are stated in the opinion.

W. H. Barrows, and Barham & Bolton, for Appellant.

J. R. Leppo, for Respondent.

BELCHER, C.-On the 14th of October, 1890, Mrs. Mary L.

P. Mountjoy filed in the superior court of Sonoma County her petition praying that she be appointed guardian of the persons of Robbin and Stewart Vance. She stated in the petition that Robbin was a little girl about eight years old, and Stewart a little boy about five years old; that they were the children of John B. Vance and Louise F. Vance, but that the mother was dead; that she was the grandmother of the children, and that they had been living with her at Santa Rosa, Sonoma County, and in her care and custody, for several years; and that the father was not a fit or proper person to have the care and custody of them.

The father filed an answer to the petition, and denied that he was not a fit and proper person to have the care and custody of the children; denied that it was necessary that a guardian of the persons of the children should be appointed, inasmuch as he was their legal guardian; and alleged that the children were then, and had been since prior to the filing of the petition, inhabitants and residents of the city and county of San Francisco.

After a hearing, the court found, among other things, that the children had been residents of Sonoma County for more than four years last past, living with their grandmother, the petitioner, who had sole care and custody of them during that time; that on the twelfth day of October, 1890, the father, without the knowledge or consent and against the wishes of the petitioner, carried them away to San Francisco, where he resided; that the father deserted and abandoned the children more than three years previous to the time of his taking them from the custody of their grandmother; that he had not provided for their support for more than four years, and that his reputation was bad; and that the petitioner was a fit and proper person to have the custody of them.

An order was accordingly entered that letters of guardianship be issued to the grandmother as prayed for, and from this order the father appeals.

The principal contention of appellant is, that the court had no jurisdiction of the case, because, at the time the petition was filed, the children were not inhabitants or residents of Sonoma County, and hence that the order was void and should be reversed.

The evidence on which the order was based was as follows:

The petitioner introduced evidence showing that the mother of the children was her daughter, and had been dead about four years; "that several years prior to the death of their mother, the mother and the children lived with petitioner, and were wholly supported by the petitioner; that after the death of their mother, the children continued to reside with the petitioner and to be supported by her; that the father, Vance, has not provided for the support of the children since the death of the mother; that at various times since the death of the mother, Vance, the father, has expressed and declared to the petitioner that he was willing that she have the care and custody of the children; that at various times since the death of the mother, Vance had expressed and declared his intention of never reclaiming or taking the custody of the children from the petitioner; . . . that the reputation of J. B. Vance for sobriety, industry, and morality was and is bad, and has been for more than four years last past, and that he spent his earnings and money for liquors, on women, and general dissipation; that up to about one year ago, Vance, the father, resided in Santa Rosa, Sonoma County; that about one year ago he went to San Francisco, and since that time has resided in San Francisco; that after going to San Francisco to reside, he married, and for some time previous to the trial has lived with his wife in San. Francisco; that on the twelfth day of October, 1890, Vance came to Santa Rosa, and went to the home of the petitioner, where the children were, and represented to the petitioner that he desired to take the children down town to get some candy, whereupon petitioner consented, and he took the children and went away with them, as the grandmother understood, to take them down town and get them candy; that Vance then took them to San Francisco without the knowledge and consent of the grandmother; that they were in San Francisco at the time these proceedings were commenced, and up to the trial thereof; that petitioner is able to maintain and care for the children."

The father then offered testimony showing that his residence had been in San Francisco for the year last past, and was at the time he took the children there, and "that his present wife, Mrs. J. B. Vance, had means with which to support and care for the children, and was desirous of caring for and supporting them."