low that a domicil once acquired will be retained until another is gained. It is to be observed therefore that the abandonment of a domicil does not of itself destroy it, even when coupled with an intent to acquire a new one, but it continues until another is in fact gained.

Many examples of the application of these propositions might be adduced, but one or two will suffice to illustrate them.

A person domiciled in Boston, Massachusetts, left that city in 1876, with his family, to reside in Europe for an indefinite period, with the fixed purpose never to return to Boston, and to make some place other than Boston his residence when he should return. While in Europe, prior to May 1, 1877, he fixed upon a place of residence in another State, but remained in Europe until 1879. The question arose whether, as a domiciled citizen of Massachusets, he was liable to taxation there on his personal property, the taxes falling due May 1, 1877. It was held that he was still domiciled in Boston on that day.

In another case, a married woman left New York for Europe, with her husband, for her health, at first intending to return. But after her husband's death her physicians decided that she must not come back. She wrote letters to that effect, but still seemed to regard New York as her home. She lived in hotels and lodgings in Europe, but never set up any establishment there. She finally died, leaving a will of personalty valid under the laws of New York but invalid under the law of France, where the will was executed and where she died. It was decided that the validity of the will must be determined by the law of her domicil, and that she must be deemed to have retained her New York domicil until she acquired another, which she did not do.5

2 White v. Tennant, 31 W. Va. 790, 8 S. E. 596; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108.

3 Shaw v. Shaw, 98 Mass. 158; First Nat. Bank v. Balcom, 35 Conn. 351; In re Olson's Will, 63 Ia. 145, 18 N. W. 854; Hood's Estate, 21 Penn. St. 106; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61; Somerville v. Somerville, 5 Ves. 750.

4 Borland v. Boston, 132 Mass. 89, 42 Am. Rep. 424.

5 Dupuy v. Wurtz, 53 N. Y. 556.

It is a corollary of these propositions that the legal presumption is in favor of the retention of a previous domicil, and the burden of proof lies on him who asserts a change of domicil." It should be noted however that a change of domicil from one country or State to another under the same general sovereignty, as from Scotland to England, or from one of the United States to another, is more easily inferred than a change to a foreign country, whose laws are strange and whose people are alien." § 30. IV. Persons Sui Juris may change Domicil at Pleasure. The fourth principle is: Every natural person, free and sui juris, may change his domicil at pleasure.1

This is the result of the personal liberty of locomotion, belonging of right, and now generally accorded to every person not under disabilities and capable of controlling his own movements. It implies the exercise of choice or will, and hence the proposition is applicable only to that kind of domicil known as the domicil of choice."

But persons who are not legally sui juris, such as infants, insane persons, or married women, or those who are incapable of exercising a choice as to their locality, such as persons imprisoned, invalids ordered to a particular place by their physicians, or other persons deprived of freedom of locomotion, cannot in general change their domicil at their own pleasure.

8

6 Desmare v. United States, 93 U. S. 605; Mitchell v. United States, 21 Wall. 350; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Hood's Estate, 21 Penn. St. 106; Dupuy v. Wurtz, 53 N. Y. 556.

7 Moorehouse v. Lord, 10 H. L. Cas. 286, 287; Whicker v. Hume, 7 H. L. Cas. 124 Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 504; Dupuy v. Wurtz, 53 N. Y. 556.

1 See Jac. Dom. §§ 98, 100; Udny v. Udny, L. R. 1 Sc. App. 441; Harral v. Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17.

2 Post, §§ 56 et seq.

3 Particular instances of these incapacities will be considered hereafter. See post, §§ 57, 58. As to domicil of fugitive from justice, see Chitty v. Chitty, 118 N. C. 647, 24 S. E. 517, 32 L. R. A. 394; Young v. Pollak, 85 Ala. 439, 5 So. 279. As to domicil of invalids, see Dicey, Confl. L. 143; Dupuy v. Wurtz, 53 N. Y. 556; Hegeman v. Fox, 31 Barb. (N. Y.) 475. As to domicil of exiles, see Ennis v. Smith, 14 How. 400. Of person non compos mentis, see Harral v. Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17; Talbot v. Chamber

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§ 31. Several Kinds of Domicil. - I. Domicil of Origin. An individual's domicil may originate in three ways. It may be (1) A domicil of origin, or original domicil; (2) A constructive domicil, or domicil by operation of law; or (3) A domicil of choice. Each of these various forms of domicil will be examined in detail.

The domicil of origin is the place assigned by the law to every child as its permanent home or legal situs. It is assigned at the moment of birth, for no person can ever be without a domicil, and so one must be at once assigned him. Upon this account it has been sometimes termed the domicil of birth,' but the use of this term is liable to mislead, since it implies that one's domicil of origin is the place where he is born. In Bruce v. Bruce, Lord Thurlow disapproves this idea, saying: "It is an enormous proposition that a person is to be held domiciled where he drew his first breath, without adding something more unequivocal." Indeed, so far is this from being universally true that it is well established that a domicil of origin may be assigned a child in a State or country he has never seen. The place of birth or the place of actual residence of the child is generally immaterial.3

It must be observed that the domicil of origin is the first of all domicils in point of time, since it is assigned at the moment of the child's birth. Any domicil acquired after birth, however short or long the interval, cannot be a domicil of origin. It must be either a domicil by operation of law or a domicil of choice. It must also be remembered that no person can have more than one domicil at a time. Hence it is impossible for one to have more than one domicil of origin. No subsequent occurrence, no combination of circumstances, can make that place a lain, 149 Mass. 57, 3 L. R. A. 254; Upton v. Northbridge, 15 Mass. 237; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13; Sharpe v. Crispin, L. R. 1 P. & D. 611; Bempde v. Johnstone, 3 Ves. Jr. 198.

1 See Story, Confl. L. §§ 35, 46; Whart. Confl. L. § 35; Steer's Succession, 47 La. Ann. 1551, 18 So. 583.

2 2 Bos. & Pul. 229, 230. See Munro v. Munro, 7 Cl. & F. 842; Somerville v. Somerville, 5 Ves. 750; Price v. Price, 156 Penn. St. 617, 27 Atl. 291.

* Somerville v. Somerville, 5 Ves. 750; Colburn v. Holland, 14 Rich Eq. (S. C.) 176, 228; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.

child's domicil of origin which was not so when he was born. The original domicil may be altered by such a combination of circumstances, and the person may acquire a new domicil, but it will be either a constructive domicil or a domicil of choice.

These conclusions seem irresistible, but authorities are found to hold that the domicil of origin may be affected by certain circumstances occurring after birth, such as the subsequent legitimation of a child born a bastard."

Since every newborn child must have a domicil somewhere, and since he is incapable of selecting one for himself, the law undertakes to ascertain it by well defined rules. To that end it sets apart as his domicil of origin that country which, under all the circumstances of the case, would be most naturally looked upon by him as his home, had he the power to express a preference. And since a domicil once acquired is retained until another is gained, it frequently happens that one retains his domicil of origin even after he has reached mature years.

The rules whereby to determine the domicil of origin depend upon various circumstances attending the party's birth, as whether he be born legitimate or illegitimate; if the former, whether the father be living or dead at the time of his birth; or whether the child is a foundling, whose parents are unknown.

§ 32. Original Domicil of Child born Legitimate. If the father is alive at the time of the birth of a legitimate child, the infant has his domicil of origin in the country where the father then had his domicil. It is the father's highest duty to provide a support and a home for his helpless and dependent offspring, and it is his privilege to have the care and custody of

4 Dicey, Confl. L. 104. See post, §§ 33, 34.

See Price v. Price, 156 Penn. St. 617, 27 Atl. 291.

Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; Crawford v. Wilson, 4 Barb. (N. Y.) 505; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; In re Steer, 3 H. & N. 594.

1 Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525; Hiestand v. Kuns, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481; Somerville v. Somerville, 5 Ves. 750; Sharpe v. Crispin, L. R. 1 P. & D. 611; Whart. Conf. L. § 35; Story, Confl. L. § 46.

2 See Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.

the child's person and education. To no other person has the child the same right to look for these things; and if the infant itself had the discretion to express a preference, it would most probably choose as its home that of its father. The probabilities are in favor of that being the child's permanent home rather than any other place. Hence the law, basing a general rule upon convenience and the probabilities of the case, has fixed upon this as the infant's domicil of origin.

If the father is dead when the child is born, he receives as his original domicil that of his mother at that time. In the absence of the father, his natural protector, the infant must look to the mother for a home, and for all the guardian care that childhood requires.

§ 33. Original Domicil of a Bastard - Of Legitimated Child. -The law does not in general fix upon any particular man as the father of a bastard, because of the uncertainty in ascertaining him. The bastard is filius nullius. But there is no more difficulty in ascertaining who is the mother of a bastard than of a legitimate child, though the common law thought otherwise. And since, in most cases, the care and support of an illegitimate child devolves upon the mother, the law justly infers that the probabilities in every case are greatly in favor of the bastard's living with his mother rather than with the father, even if the latter is known.

Hence the general rule of law is that a bastard's domicil of origin is the domicil of the mother at the moment of his birth.1

Upon principle, it would seem that no circumstance supervening after the bastard's birth should make his domicil of origin other than that of the mother at that time, though such a circumstance might confer upon him a new domicil by operation of law. Thus, the subsequent acknowledgment by the father, or his intermarriage with the mother, which by the law of many countries renders the bastard legitimate, may, as we

See Jac. Dom. § 105; Dicey, Confl. L. 103; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Mears v. Sinclair, 1 W. Va. 185.

1 Dicey, Confl. L. 103; Wright's Trusts, 2 K. & J. 595, 25 L. J. (Ch.) 621; Udny v. Udny, L. R. 1 Sc. App. 441; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40.