such circumstances of misconduct on the part of the husband that the divorcing court has taken the children from his custody and has turned them over to the mother, thenceforward, provided the court has jurisdiction to make the decree, the domicil of the children will usually be held to depend upon that of the mother, since she then has the legal custody of them. The father has ceased to be the natural guardian, and the foundations upon which this rule of domicil is based are shattered."

Although it is ordinarily competent for the father to change. his child's domicil at any time by changing his own, it is not as a general rule within his power to give the child a domicil apart from his own.

Thus, in Allgood v. Williams," it appeared that the father of an infant, a few weeks before his death, requested his brother to take the child and raise her. The uncle lived in a different county from the father but in the same State. The question arose as to which county was the legal residence of the child after the father's death. It was held that the child's municipal domicil remained in the county where the father had lived, and was not transferred to the home of her uncle.

In De Jarnett v. Harper, the parent, residing in Missouri, actually entrusted the custody of the infant child, before death, to a person in another county in the same State. It was held that that fact did not change the minor's domicil for the purpose of determining in which county a guardian should be appointed on the parent's death.

But though a father will not generally be permitted to change his child's domicil save in so far as he changes his own, there

5 The same result would seem to follow without a divorce if the husband's conduct has been such as to make it necessary to withdraw from him the custody of his children. Jac. Dom. § 237. See Kelsey v. Green, 69 Conn. 291, 37 Atl. 679.

6 Jac. Dom. §§ 237, 241; Dicey, Confl. L. 143; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892; Allgood v. William 2 Ala. 551, 8 So. 722; De Jarnett v. Harper, 45 Mo. App. 415. These two latter cases refer to munici pal domicil, but a fortiori the same principle would govern national or quasinational domicil. But see White v. Howard, 52 Barb. (N. Y.) 294, 318.

7 92 Ala. 551, 8 So. 722.

8 45 Mo. App. 415.

в

are qualifications of the rule that deserve attention. If the father should fix the child's residence apart from his own, with the intention of permanently renouncing control over its actions, and surrendering to competent persons his legal right to the custody of its person and the care of its education, this might, in some cases, effect a change in the child's domicil. Thus if the father should bind the child out as apprentice, the latter's domicil, it is believed, will then become that of the master, and will change with his, even into another State or country, if such a change is within the scope of the contract of apprenticeship. Here not only the actual physical custody, but the legal custody also, has been renounced by the parent."

10

The same is true if the father surrenders the child to a third person for adoption, at least where the relation of child by adoption is legally recognized."

§ 38. Same - Father Dead, Mother Surviving. It is a general principle of the law that, after the father's death, the mother succeeds to his position as the natural guardian of the infant children, so long as she remains unmarried and is fit for the trust. There is a strong moral, if not a strictly legal, duty resting upon her to provide them a home, as in fact she usually will. For these reasons the rule seems now well established that the domicil of the fatherless infant will change with that of the mother, at least so long as she remains unmarried.1

9 Jac. Dom. §§ 246, 247, 248; Maddox v. State, 32 Ind. 14; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; In re Johnson, 87 Ia. 130, 54 N. W. 69; Washburn v. White, 140 Mass. 568.

10 See Maddox v. State, 32 Ind. 14, which however is a case of municipal domicil, involving the right to vote.

11 Jac. Dom. §§ 247, 248; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Washburn v. White, 140 Mass. 568; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892; In re Johnson, 87 Ia. 130, 54 N. W. 69; Foley's Estate, 11 Phila. 47. If the adoption is not a legal status, it is doubtful, to say the least, whether the same result would follow. See Allgood v. Williams, 92 Ala. 551, 8 So. 722; De Jarnett v. Harper, 45 Mo. App. 415. But see Lamar v. Micou, 114 U. S. 452.

1 Jac. Dom. §§ 238, 241; Dicey, Confil. L. 121; Whart. Conf. L. § 41; Story, Confl. L. § 46, note (c); Potinger v. Wightman, 3 Meriv. 67; Johnstone v. Beattie, 10 Cl. & F. 42, 138; Sharpe v. Crispin, L. R. 1 P. & D. 611; Lamar v. Micou, 112 U. S. 452; Van Matre v. Sankey, 148 Ill. 356, 36 N. E.

Some question has been made whether this principle applies in cases where the child fails to actually accompany the mother to a new home, remaining apart from her in his old place of abode. Some of the authorities hold that, under such circumstances, the child's domicil does not follow the mother's. But the better view, and the most reasonable, is that the power of the widowed mother with respect to the infant's domicil is the same as that of the father, were he alive.

It is sometimes said that the widowed mother may change the domicil of her child with hers, if she act without fraudulent intent to thereby alter the rule of succession to the child's personalty (which depends upon the law of the domicil). It may well be doubted whether this is a proper qualification of the rule.* 628; Woodward v. Woodward, 87 Tenn. 644; 11 S. W. 892; Mears v. Sinclair, 1 W. Va. 185; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am. Dec. 55, 57, note; Succession of Lewis, 10 La. Ann. 789, 63 Am. Dec. 600, 601, 602; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525; Freetown v. Taunton, 16 Mass. 52; Dedham v. Natick, 16 Mass. 135. In De Jarnett v. Harper, 45 Mo. App. 415, it was held that the domicil of a widowed mother, even though she had been adjudged a lunatic, fixes the municipal domicil of her child, and determines the jurisdiction of the court to appoint a guardian. The incompetence or unfitness of the mother as a guardian, says the court in that case, can only be tried by the court of the county where she is domiciled.

2 See Jac. Dom. § 241; Dicey, Confl. L. 122-123.

Sharpe v. Crispin, L. R. 1 P. & D. 611; Lamar r. Micou, 112 U. S. 452; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am. Dec. 55, 57, note; Mears v. Sinclair, 1 W. Va. 185; Succession of Lewis, 10 La. Ann. 789, 63 Am. Dec. 600, 601-602; School Directors v. James, 2 W. & S. (Penn.) 568, 570, 37 Am. Dec. 525; Dedham v. Natick, 16 Mass. 135.

4 Dicey, Confl. L. 126, 127; Potinger v. Wightman, 3 Meriv. 67; School Directors v. James, 2 W. & S. (Penn.) 568, 569, 37 Am. Dec. 525, 526; Wheeler v. Hollis, 19 Tex. 522, 70 Am. Dec. 363, 365. No reason can be urged why this qualification should be attached in the case of the mother, which would not apply with equal force to the father. Yet it is never applied to restrict the father's power to change the child's domicil. Mr. Jacobs argues against it with force. He says: "Suppose that for the purpose of affecting the personal succession, a mother carries with her her infant child into another State or a foreign country, and the child, instead of dying there, should live and grow up to maturity. Can it be doubted that his general legal capacity

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§ 39. Effect of Remarriage of the Mother. A woman, upon marriage, generally ceases to have the power to choose her own domicil. The law fixes it, independently of her volition, as that of her husband, whether she actually resides with him or at his domicil or elsewhere. She becomes a part of her husband's family and thereby ceases to be the head of her own.1

Since therefore her domicil becomes subordinate to her husband's, and since he owes no legal duty to provide the stepchildren with a home, some of the authorities hold that the domicil of the wife's minor children, from the time of her remarriage, ceases to follow any further change of domicil by the stepfather and his wife, but remains where it was at the time of the mother's second marriage, until she again becomes discovert, or until the children arrive at maturity and select domicils of their own.2

Other authorities seem to hold that the question turns upon whether the child actually changes its residence to the domicil of the stepfather. If, after her remarriage, the infant actually lives with the mother in the stepfather's home, then that becomes his domicil. Otherwise, the child retains the former

domicil.s

...

would be determined by the laws of the new place? Can it be doubted that his personal property would be taxable there? . . . It seems therefore more logical to hold that while courts would interpose to defeat the fraudulent design with which a parent had attempted to change the domicil of his or her infant child, they would not do so upon the ground that the change of domicil had not been accomplished, but rather upon the ground that, in the particular case, the usual legal effect could not be given to the change of domicil, so as to assist in the perpetration of the fraud." Jac. Dom. § 243. But see Mears v. Sinclair, 1 W. Va. 185.

1 Post, § 46; School Directors v. James, 2 W. & S. (Penn.) 568, 569, 37 Am. Dec. 525, 526; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am. Dec. 55, 57; Lamar v. Micou, 112 U. S. 452.

2 Jac. Dom. § 244; Dicey, Confl. L. 125, 126; Lamar v. Micou, 112 U. S. 452; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896; Allen v. Thomason, 11 Humph. (Tenn.) 536, 54 Am. Dec. 55, 57; School Directors v. James, 2 W. & S. (Penn.) 568, 569, 37 Am. Dec. 525, 526; Mears v. Sinclair, 1 W. Va. 185; Freetown v. Taunton, 16 Mass. 52; Brown v. Lynch, 2 Bradf. (N. Y.) 214.

See Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 919; Succession of Lewis,

a duty

The second view is more consonant with reason. It must be admitted that the first doctrine leaves out of consideration the strong moral duty resting upon the mother to provide her infant children with a home, as well as other necessaries which rests upon her no less strongly after her remarriage than during her widowhood. It moreover disregards the usual trend. of events in such cases, and instead of assuming to be true what is true in most cases, as in other instances of constructive domicil, it assumes to be true what in most cases is known to be false. For though in law the widowed mother ceases probably upon her remarriage to be the natural guardian of her infant children, and to be as such entitled to the care and custody of their persons, in fact it is otherwise in the vast majority of cases. Indeed the last doubt as to the fact must be dismissed when we suppose the children actually to reside with their mother and her husband.*

§ 40. Constructive Domicil of Orphan. - Upon the principle. that a domicil once acquired is retained until another is gained, the settled rule is that a minor, both of whose parents are dead, will retain the last domicil of the last surviving parent, until it is legally changed. This change the infant cannot himself make until he becomes sui juris. The law fixes his domicil for him during his minority, regardless of the place of his actual abode.1

But although the authorities are agreed that an orphaned infant cannot by his own act change his domicil, they are much divided upon the question as to the power of his guardian in

10 La. Ann. 789, 63 Am. Dec. 600, 601-602; Wheeler v. Hollis, 19 Tex. 522, 70 Am. Dec. 363, 367; Brown v. Lynch, 2 Bradf. (N. Y.) 214. In Succes. sion of Lewis, supra, the mother had been appointed the guardian of her child. In Wheeler v. Hollis, supra, the stepfather had been appointed the child's guardian.

4 See Story, Confl. L. § 46, note (c); Wheeler v. Hollis, 19 Tex. 522, 70 Am. Dec. 363, 367; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 919, 19 L. R. A. 40; Dalhousie v. M'Douall, 7 Cl. & F. 817.

1 Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525, 527. See Lamar v. Micou, 112 U. S. 452; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896; Holyoke v. Haskins, 5 Pick. (Mass.) 20, 25-26, 16 Am. Dec. 372.