care of some guardian. They are incapable, even after they become adults, of forming such a definite intention and purpose as is necessary to constitute a legal domicil of choice. They must always remain dependent for a home, as infants are, upon those having the legal custody and control of their persons They continue infants perpetually. The rules of law, therefore, which determine an infant's domicil are extended to adults also who have never acquired sufficient intelligence to select and support a home of their own.1

§ 55. Constructive Domicil of Lunatics. If an infant should become insane during his minority and remain in that state continuously, the incapacity of minority never having been followed by adult capacity to select a home of his own, his domicil must be determined by the same rules that control the domicil of an idiot or infant.' But in those cases where the lunacy has supervened after the party has reached maturity, the domicil must be determined upon different principles.

One point must be observed at the outset, and should be borne in mind. The Supreme Court of New Hampshire 2 has thus expressed it: "Insanity may exist in various degrees, from the slight attacks which are hardly distinguishable from eccentricity to the most raving and uncontrollable madness. It may be general, seeming to affect all the operations of the mind upon all subjects, or it may exist only in reference to a small number of subjects, or a single subject: the mind in such cases of partial insanity seeming to be in its habitual and natural condition as to all subjects and matters which do not come within the scope of the partial disease. In no case at the present day is it a mere question whether the party is insane. The point to be established is, whether the party is so insane

1 Jac. Dom. §§ 264-269; Whart. Conf. L. §§ 52, 53; Holyoke v. Haskins, 5 Pick. (Mass.) 20, 25-26, 16 Am. Dec. 372; Upton v. Northbridge, 15 Mass. 237; Overseers of Alexandria v. Bethlehem, 1 Harr. (N. J.) 119, 31 Am. Dec. 229.

1 Jac. Dom. § 268; Whart. Confl. L. § 53; Sharpe v. Crispin, L. R. 1 P. & D. 611, 618; Washington v. Beaver, 3 W. & S. (Penn.) 548, 549.

2 Concord v. Rumney, 45 N. H. 423. See Culver's Appeal, 48 Conn. 304; Holyoke v. Haskins, 5 Pick. (Mass.) 20, 26, 16 Am. Dec. 372. All these are cases of municipal domicil.

as to be incapable of doing the particular act with understanding and reason. This would be the essential question now, where marriage is alleged to be void by reason of insanity, and the same test would be applied in determining the question of capacity to change the domicil: Had the party at the time sufficient reason and understanding to choose her place of residence?"

There can be no doubt that a stricter test of insanity should be required to deprive one of the capacity to select his own. home than is required to avoid a contract or a will.3

The determination of a lunatic's domicil would seem to hinge upon the question whether there has been an adjudication of lunacy, or rather whether his person has been actually committed to the custody and control of a legal guardian or committee.1

Indeed, so far as his national or quasi-national domicil is concerned, a question has been made whether even an adjudication and commission of lunacy would be given such force in other States as to affect the lunatic's right, should he go to another State, to acquire a domicil there. It is submitted that the gist of the inquiry in such cases is not whether the adjudication of lunacy shall be given exterritorial effect ex proprio vigore, but whether as a matter of evidence, the action of the court of one State should not be taken as very strong evidence, if not conclusive, of the proposition that, at the time of such decree, the party was really of such unsound mind as to require his person to be controlled."

But while this last principle is believed to be sound, it is applicable only to the party's state of mind at the time of the

8 See Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21; Concord v. Rumney, 45 N. H. 423; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781; Talbot v. Chamberlain, 149 Mass. 57, 59, 20 N. E. 305, 3 L. R. A. 254; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13.

4 See Talbot v. Chamberlain, 149 Mass. 57, 58, 20 N. E. 305, 3 L. R. A. 254; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13.

5 See Talbot v. Chamberlain, 149 Mass. 57, 59, 20 N. E. 305, 3 L. R. A. 254.

• See Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781; Mowry v. Latham, 17 R. L 480, 23 Atl. 13.

decree. The continuance of that state of mind may be rebutted. It is not indispensable that there should be an adjudication of restoration to sanity by the same or any other court."

The true principle therefore would seem to be that a lunatic, whose person has been placed under the control of a guardian or committee, is prima facie incompetent to establish a domicil in another State, but, upon satisfactory proof of mental capacity supervening, such domicil may be recognized. In any event, the mere fact that the control of the lunatic's property has been committed to a guardian or committee will not suffice to prevent him from choosing even a municipal domicil, much less a national or quasi-national one.

A fortiori would the party be capable of choosing his own domicil, if there is no adjudication or commission of lunacy at all. Thus, one suffering from habitual intemperance, melancholia, monomania, or very pronounced eccentricities, may ordinarily be fully competent to determine where he should reside." Nor would an adjudication of lunacy in a collateral proceeding to set aside a contract have the effect of depriving the party of the right to choose his own domicil, for the tests in the two cases are different, and no control is thereby assumed of the lunatic's person.

If the insanity is so marked or so violent as to require the duress of an asylum, there can then of course be no question of any selection of domicil by the lunatic.

The question remains, what is the locality of the lunatic's domicil when he is himself too insane to choose one? Shall the guardian or committee have power to change it, or must it remain unalterably where it was when the disability was first incurred?

The case is closely analogous to that of the guardian's power to change an infant ward's domicil, already discussed.10 As to

7 Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781.

8 Mowry v. Latham, 17 R. I. 480, 23 Atl. 13; Talbot v. Chamberlain, 149 Mass. 57, 20 N. E. 305, 3 L. R. A. 254.

• Concord v. Rumney, 45 N. H. 423. See Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17.

10 Ante, § 41.

the lunatic's municipal domicil, it seems that the guardian has the power, but not so with respect to his national or quasinational domicil." His latter domicil will remain unchanged, regardless of the place of his actual residence. He will retain the domicil he possessed before he became insane, upon the principle that a domicil once acquired is retained until another is gained. 12

§ 56. III. Domicil of Choice Three Essential Elements. The domicil of origin assigned to an infant immediately upon his birth, upon principles already considered, is retained by him, even after maturity, until another has been acquired.1 Unless one is acquired by operation of law in the meanwhile, an infant will always arrive at the age of majority with his original domicil still clinging to him. From that time, if free from disabilities, he may choose a new home for himself. But it does not follow that he will do so. On the contrary, he will usually retain his original domicil all his life.

2

The burden of proof is on him who alleges a change of domicil, or in other words there is a prima facie presumption in favor of the retention of a domicil once acquired. This presumption applies not only to the original domicil but to domicils of every sort.

A domicil of choice, as the name implies, means simply that a party is legally competent to exercise his own choice with respect to his permanent home, and has exercised it.

11 Talbot v. Chamberlain, 149 Mass. 57, 59, 3 L. R. A. 254; Culver's Appeal, 48 Conn. 165; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13; Anderson v. Anderson, 42 Vt. 350, 1 Am. Rep. 334; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781.

12 Bempde v. Johnstone, 3 Ves. Jr. 198, 201; Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779, 781; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13.

1 White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 505; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916, 917.

2 Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Hiestand v. Kuns, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481.

Desmare v. United States, 93 U. S. 605; Mitchell v. United States, 21 Wall. 350; Dupuy v. Wurtz, 53 N. Y. 556; Allgood v. Williams, 92 Ala 551, 8 So. 722; Price v. Price, 156 Penn. St. 617, 27 Atl. 29.

There are three elements which are essential to the acquisition of a domicil of choice: (1) Freedom of choice, without which it would be idle to speak of a domicil of choice; (2) Actual presence in the locality chosen; (3) Intention to remain permanently, without which there would be no "permanent home," as the definition of domicil demands.

Curiously enough however, although all these attributes are essential to the acquisition of a domicil of choice, the domicil when once acquired may continue though all three or any of them be absent. Thus, in order to acquire a domicil of choice, one must of his own free will select it, he must actually be present there, and such presence must be coupled with the intention to remain there permanently. But such domicil having been once acquired thus, will continue until another is gained, though the party be kept there against his will, as by imprisonment, or though, while remaining in the State, he changes his mind about residing there permanently, or even though he leaves the State altogether (no new domicil being acquired).

§ 57. Party must be free to choose Domicil. - The first essential of a domicil of choice is that the party should be legally and actually free to choose his own place of abode. If not, no place of residence can be said to be his domicil of choice. Besides the cases of legal disability when a constructive domicil is assigned by the law, such as infants, married women, lunatics, etc., there sometimes occur cases in which, though the party may be under no legal disability, he is in fact deprived of the freedom of volition necessary to the act of choosing his domicil. He does not choose to be where he is; he resides there permanently because he cannot help himself. If he could, he would live elsewhere. Under circumstances such as these, a question may arise as to the place of his domicil.

Instances in which these circumstances are apt to appear are cases of persons imprisoned, exiles, fugitives, and invalids. In all of these cases there is some degree of coercion. They are under the duress of physical confinement, the duress of political power, or the duress of their own fears.

The real question in these cases is not what motive has led the party to make a choice, but whether he has actually chosen