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deed of separation.

It is otherwise, as we shall presently see,

if there be a judicial separation."

Even if the wife is induced to leave the husband because of his ill-treatment and harshness, or for reasons that would give her the right to apply for a separation or a divorce a vinculo, if she do not actually ask for one, and until she does, his domicil will still be hers. But should she apply for a divorce, and for that purpose change her domicil, it would remain changed for all purposes; otherwise she would have two domicils."

But there may be exceptional circumstances surrounding the wife that make it necessary that she should in some cases be capable of selecting a domicil apart from her husband. To hold otherwise would in many instances result in grievous injustice to her.10 These more or less abnormal conditions will now be considered.

§ 47. Domicil of a Deserted Wife. If the wife applies for a separation or a divorce a vinculo because of the husband's de

Jac. Dom. §§ 215, 216; Barber v. Barber, 21 How. 582; Greene v. Greene, 11 Pick. (Mass.) 409, 415; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 Am. Dec. 709; Williams v. Saunders, 5 Coldw. (Tenn.) 60, 79; Dougherty v. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520; Warrender v. Warrender, 2 Cl. & F. 488, 524. There are a few cases holding that a permanent departure of the wife from the husband's home destroys her domicil there, even though it be the result of an amicable arrangement. See Colburn v. Holland, 14 Rich. Eq. (S. C.) 176, 229; Florance's Will, 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 34; Smith v. Smith, 19 Neb. 706, 28 N. W. 296, 298; Chapman v. Chapman, 129 Ill. 386, 21 N. E. 806. In most of these, there were peculiar circumstances, such as the pendency of divorce or the desertion of the husband, which took the case out of the operation of the general rule.

7 Post, § 52; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129.

Dolphin v. Robins, 7 H. L. Cas. 390; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, 229; Shaw v. Shaw, 98 Mass. 158; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 710; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Maguire v. Maguire, 7 Dana (Ky.), 181, 186; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248. But see Florance's Will, 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578. See Jao. Dom. § 223.

• Ante, § 28. See Jac. Dom. § 226; Dolphin v. Robins, 7 H. L. Cas. 390. 10 Cheever v. Wilson, 9 Wall. 108, 124; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372.

sertion, it is now well established that she may renounce the constructive domicil created by the marriage status, and acquire a separate domicil of her own where she may obtain a divorce.1

The question becomes more complicated if we suppose the wife unwilling or without intention to obtain a divorce, or if the question should arise before she has begun to put such intention into effect. It has been said by some eminent authorities that the doctrine of the wife's separate domicil, under such circumstances, does not extend beyond cases of divorce, or as it is sometimes put, beyond proceedings whose "express object is to show that the relation itself ought to be dissolved or so modified as to establish separate interests, and especially a separate domicil and home; bed and board being put, a part for the whole, as expressive of the idea of home."

It is believed that this is the proper solution in those cases (e. g. adultery or cruelty) where the husband's offense does not go to the extent of depriving the wife of his support or of a home provided by him. And the cases do not take a position beyond this. There is good reason for this doctrine. The wife by her silence may be taken to have signified her intention to condone the offense, if indeed any has been committed. And if it be alleged that she has not condoned it, the difficulties in the way of establishing the wrongs alleged in a collateral inquiry would be insurmountable."

1 Barber v. Barber, 21 How. 582, 594, 595; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 Am. Dec. 709; Blackinton v. Blackinton, 141 Mass. 432, 435; Hunt v. Hunt, 72 N. Y. 217, 242-243, 28 Am. Rep. 129; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; White v. White, 18 R. I. 292, 27 Atl. 506; Kline v. Kline, 57 Ia. 386, 10 N. W. 825, 826.

2 For example, should the deserted wife die without taking any step towards the prosecution of a divorce suit. The disposition of her personal estate depends upon the law of her domicil at the time of her death. See post, §§ 139-141.

* See Jac. Dom. §§ 226, 227; Dolphin v. Robins, 7 H. L. Cas. 390; Yelverton v. Yelverton, 1 Swab. & Tr. 574, 29 L. J. (P. & M.) 34; Burtis v. Burtis, 161 Mass. 508, 510-511.

1 Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372.

See Jac. Dom. §§ 226, 227; Dolphin v. Robins, 7 H. L. Cas. 39.

But where the improper act of the husband is one that amounts to a total renunciation of the marriage relation, as in case of desertion, and as a result the wife is left to make her own way in the world and by her own endeavors to provide a home for herself and her family, it would seem to be a great injustice to deny her the right to make her legal as well as her actual home in any place which will promise her a livelihood, untrammeled by presumptions of law favorable to the husband, which he himself has outrageously cast aside. It is submitted therefore (with deference) that the wife, even without divorce, should be permitted to alter her domicil when deserted by her husband, especially when he has added to his desertion the offense of taking with him a paramour, or otherwise rendering his new home uninhabitable by his wife."

In Florance's Will,' the wife lived apart from her husband by mutual agreement for a number of years, during which time the children lived with her and were wholly supported by her, the husband living in another State and contributing nothing to the support of his wife or children. She was held to acquire a domicil in the State where she thus lived, so that the husband's rights in her personal estate at her decease were governed by the laws of that State, not by the law of her husband's domicil.

It would seem, upon the same principle, if the husband is under restraint for hopeless lunacy, or is confined for life upon conviction of crime, that the wife should in such cases also be permitted to select a new legal domicil for herself, should she desire to do so.8

§ 48. Domicil of Wife who Deserts her Husband. The wife who deserts her husband, even though for a cause which

6 Champon v. Champon, 40 La. Ann. 28, 3 So. 397, 399; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 249; Barber v. Barber, 21 How. 582, 594, 595; Chapman v. Chapman, 129 Ill. 386, 21 N. E. 806; Cummington v. Belchertown, 149 Mass. 223, 226, 21 N. E. 435; Blackinton v. Blackinton, 141 Mass. 432, 435; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Dutcher v. Dutcher, 39 Wis. 651, 659; Doerr v. Forsythe, 50 Ohio St. 726, 35 N. E. 1055.

7 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578.

8 See post, § 49; Whart. Confl. L. § 44; McPherson v. Housel, 2 Beasley (N. J.), 35, 13 N. J. Eq. 35.

would be ground for a divorce, or which would constitute a good defence to a suit by the husband for a restitution of conjugal rights, will still, according to the great weight of modern authority, be held to retain the domicil of her husband, unless she sues for divorce. But if she does institute divorce proceedings she may acquire a new domicil for the purpose. It is not essential that she should have left her husband with that intent.2

It is also worthy of observation in this connection that the law requires the wife to cling to her husband and to follow him into whatever country the necessities of health or of business require him to make his home. Her refusal to accompany him without legal excuse, and his departure alone, constitute a desertion on her part, not on his. In such cases, her domicil follows that of her husband.3

But if the husband refuses, without good cause, or refuses except upon unreasonable conditions, to permit the wife to live with him, and departing to another State sues her there for di

1 See Whart. Confl. L. § 43; Jac. Dom. §§ 226, 227; Dolphin v. Robins, 7 H. L. Cas. 390; Yelverton v. Yelverton, 1 Swab. & Tr. 574, 29 L. J. (P. & M.) 34; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248, 249; Barber v. Barber, 21 How. 582; Cheever v. Wilson, 9 Wall. 108, 124; Shaw v. Shaw, 98 Mass. 158; Burlen v. Shannon, 115 Mass. 438, 447; Cheely v. Clayton, 110 U. S. 701, 705; Chapman v. Chapman, 129 Ill. 386, 21 N. E. 806; Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. 669; Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200; Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251. See Watkins v. Watkins, 135 Mass. 83, 85-86; Florance's Will, 54 Hun (N. Y.), 328, 7 N. Y. Suppl. 578.

2 Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. 669; Chapman v. Chapman, 129 III. 386, 21 N. E. 806; White v. White, 18 R. I. 292, 27 Atl. 506. But see Lyon v. Lyon, 2 Gray (Mass.), 367, 368.

3 Loker v. Gerald, 157 Mass. 42, 43, 31 N. E. 709, 710; Burlen v. Shannon, 115 Mass. 438, 447; Hood v. Hood, 11 Allen (Mass.), 196, 199, 87 Am. Dec. 709; Watkins v. Watkins, 135 Mass. 83, 85-86; Cheely v. Clayton, 110 U. S. 701, 705; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Larquie v. Larqnie, 40 La. Ann. 457, 4 So. 335, 337; Suter v. Suter, 72 Miss. 345, 16 So. 674. See Chapman v. Chapman, 129 Ill. 386, 21 N. E. 806. But see Heath v. Heath, 42 La. Ann. 437, 7 So. 540, which, however, turns upon a doctrine of divorce peculiar to Louisiana, namely, that suit for divorce must be brought in the jurisdiction where the married pair have lived together. See also O'Dea v. O'Dea, 101 N. Y. 23, 38 (dissenting opinion of Danforth, J.).

vorce because of her desertion, her domicil will not be held to follow his. So, if the wife living in another State from her husband herself sues for divorce in the State of her actual residence, she cannot allege that her domicil is with her husband, in order to defeat a cross-bill for divorce filed by him in answer to her complaint."

§ 49. Domicil of Wife whose Husband is Insane or otherwise incapacitated. If the law itself has established the incompetence or incapacity of the husband to be the head of the family and to provide them with a home, as by reason of an adjudication of permanent insanity, the presumption of law that the wife is dependent upon the husband for a home no longer applies, and she is at liberty to select her own domicil as well as that of the minor children. It is similar to, and even stronger than, the case of the husband's desertion. If there has been no legal adjudication of insanity, it would seem that the wife's domicil must be held to follow that of her husband, notwithstanding mental or physical ailments.

It has been said that if the husband is incapacitated to support the wife by reason of conviction of felony (an incapacity established by the law) his domicil will cease to control that of the wife. But unless the confinement is permanent, for life, it is difficult to see how it could leave the wife free to select a domicil of her own."

Mere physical weakness or incapacity on the part of the husband will in no event, it is believed, confer upon the wife the privilege of choosing a domicil apart from his. Indeed such a course would generally be a plain violation of the duty she owes her husband, whom she has taken for better or for worse, in sickness as well as in health.

Williams v. Williams, 130 N. Y. 193, 197, 29 N. E. 98. See Chapman v. Chapman, 129 Ill. 386, 21 N. E. 806.

5 Watkins v. Watkins, 135 Mass. 83, 85-86.

1 See Whart. Confl. L. § 44. This is true however only in case the insanity is of a permanent character.

2 Whart. Confl. L. § 44; McPherson v. Housel, 2 Beasley (N. J.), 35, 18 N. J. Eq. 35.

8 See Kelsey v. Green, 69 Conn. 291, 37 Atl. 67t

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