Again, the removal of the ward's residence from one part of the State to another does not expose him to be subjected to any change in the law governing him and his property, as does a change of his national domicil. The courts are very jealous of a change of that character. Finally, the guardian has the management of the ward's estate, and his pecuniary interests may often require a change of residence, for example, for purposes of less rigorous taxation, 15 education, 16 or cheaper living. § 42. Constructive Domicil of an Illegitimate Child. The father of a bastard being unknown, it devolves upon the mother to provide a home for him, and she, as the natural guardian, has the custody of his person and the care of his education. The same principles will apply here as in the case of a legitimate child whose father is dead, and whose mother survives.1

The domicil of the mother is the domicil of the bastard, the place of the infant's birth and the domicil of the father being immaterial elements. Should the mother marry, her domicil will thereafter be governed by that of her husband. Whether the bastard's domicil will be correspondingly changed would seem to depend upon whether he actually resides with his mother and stepfather, the principle being the same as in the case of a legitimate child, whose widowed mother marries again. But if the mother marries the father of the child, it is believed the rule would be different, even though legitimation does not result. In such case, it would seem that the infant bastard's domicil would shift with the mother's, whether he actually resides with his mother and father or not.

14 See Pedan v. Robb, 8 Ohio, 227; Wheeler v. Hollis, 19 Tex. 522, 70 Am. Dec. 363.

15 Mills v. Hopkinsville (Ky.), 11 S. W. 776; Kirkland v. Whately, 4 Allen (Mass.), 462.

16 School Directors v. James, 2 W. & S. (Penn.) 568, 57 Am. Dec. 525, 527. 1 Ante, §§ 38, 39.

2 Jac. Dom. § 244, a; Dicey, Confi. L. 120, 121; Whart. Confl. L. § 37; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40.

3 Ante, § 39. See Blythe v. Ayres, 96 Cal. 532, 19 L. R. A. 40, 31 Pac. 915, 919.

§ 43. Constructive Domicil of Child subsequently Legitimated. At common law a child born out of wedlock was a bastard, and no subsequent intermarriage of the parents or acknowledgment of the child by the father, or any other supervenient act, would legitimate him. But by the Roman or civil law, and by statute in most of these States, the subsequent intermarriage of the parents, either standing alone, or coupled with an acknowledgment by the father, will legitimate an illegitimate child. In some of the States, the mere acknowledgment of the father, without marriage, will have the same effect." The question in all such cases is, has the child become legitimate under the proper law? 8 If so, it is immaterial how that result came about. Thenceforth he is in exactly the same position in all respects as if he were born legitimate, and his domicil will thereafter be governed by the same rules. It will follow the domicil of his father, or if he be dead that of the mother, so long as the child remains under age.

§ 44. Constructive Domicil of an Adopted Child. Under the common law (it was otherwise by the civil law) there was no such legal relation as that of adopted child. Such child had no legal right to look to the adopting parent for support or home, in the absence of special contract, or to succeed to any portion of his property. But in many, if not in most, of these States statutes have been passed in accordance with the civil law, permitting this relation to be created upon the observance of certain formalities. These statutes generally impose upon the adopting parent, after the adoption, the same duties that the law places upon him in respect to his own children. The natural parents or the guardians surrender their control to the adopting parent, and he, on the other hand, must supply to the adopted child all the necessaries he would be bound to supply to his own children, amongst other things, a home.1

1 See Ross v. Ross, 129 Mass. 243, 249, 37 Am. Rep. 321.

2 See Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40.

8 For the proper law to determine this question, see post, §§ 98-100.

1 Ross v. Ross, 129 Mass. 243, 263, 37 Am. Rep. 321; Washburn v. White,

140 Mass. 558; Foster v. Waterman, 124 Mass. 592; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896.

Under such a state of the law, the adopting parent becomes the natural guardian of the child, and his domicil becomes that of the child also."

8

Possibly this result may also follow, even in the absence of legal adoption, in cases where the parents are dead, and the children are taken to distant localities, to be reared by relatives or others interested in the orphans. But if the parents or either of them be alive, it would seem that, no matter how clearly they may intend or agree to surrender the control of the child, its domicil is not thereby changed.*

§ 45. Domicil of a Married Infant. - As we have seen in speaking of the functions of guardians,' it is the better opinion that at common law, even as to male wards, all guardianship ceases, so far as the ward's person is concerned, at twenty-one or marriage. In jurisdictions where this is the rule it follows that if a minor is married and has a family and home of his own, he becomes "emancipated," and may acquire a domicil of choice.2

If the infant is a female and marries, she merely exchanges one dependence for another. Her domicil ceases to be that of her parents and becomes that of her husband, even though she continues to reside with her parents, provided the husband be in no default.*

An interesting question might be raised as to the domicil of 2 See cases above cited. See also In re Johnson, 87 Ia. 130, 54 N. W. 69; Foley's Estate, 11 Phila. 47; Jac. Dom. §§ 247, 248.

See Lamar v. Micou, 114 U. S. 218 (the child here resided with the grandparent, whom the court held to be the natural guardian); Dresser v. Illuminating Co., 49 Fed. 257 (also case of grandparent); Cutts v. Haskins, 9 Mass. 543 (case of brother). But see Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896, criticising Lamar v. Micou, supra.

* De Jarnett v. Harper, 45 Mo. App. 415. See Armstrong v. Stone, 9 Gratt. (Va.) 102.

1 Ante, § 40.

Whart. Conf. L. § 41; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Washington v. Beaver, 3 W. & S. (Benn.) 548, 549. See Com. v. Graham, 157 Mass. 73, 75. But see Jac. Dom. §§ 231, 232; Dicey, Confl. L. 128, 129.

* See the following sections.

Charlestown v. Boston, 13 Mass. 468, 472.

an infant widow or divorcée. Has she been emancipated by the marriage so as to give her power to change her domicil at pleasure upon the termination of the coverture? Is she thereby relegated to the condition of dependence upon her parents from which her marriage took her? Or is she to retain her last domicil (that of her husband) until she becomes twenty-one or remarries? The first view seems the more reasonable, especially if she is left with children to support and is not again received into the bosom of her parents' family.5

§ 46. Constructive Domicil of Married Woman. It is a general principle of the common law, and one that is more or less inherent in all systems of jurisprudence, that a married woman merges her legal identity in her husband's, and solemnly yields her will to his. Hence it results that the husband is bound to support her, has the control of her person, and is entitled to her services.

From this principle follows the general rule of law which fixes her domicil. It is established beyond dispute that a woman, upon marriage, immediately acquires the domicil of her husband, and that her domicil ordinarily changes with every alteration of his, regardless of the actual locality of her residence after the marriage.1

This rule is founded not only on the above-mentioned prin

Warrender v. Warrender, 2 Cl. & F. 488, 525. But Mr. Dicey favors the last view. Dicey, Confl. L. 130, note 1.

1 Jac. Dom. §§ 209, 213, 214; Barber v. Barber, 21 How. 582; Cheely v. Clayton, 110 U. S. 701, 705; Suter v. Suter, 72 Miss. 345, 16 So. 674; Burtis v. Burtis, 161 Mass. 508, 510; Watkins v. Watkins, 135 Mass. 83, 85; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Hill v. Hill, 166 Ill. 54, 46 N. E. 751, 752; White v. White, 18 R. I. 292, 27 Atl. 506; Kline v. Kline, 57 Ia. 386, 10 N. W. 825, 826; Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Williams v. Saunders, 5 Coldw. (Tenn.) 60; Smith v. Smith, 19 Neb. 706, 28 N. W. 296, 298; Champon v. Champon, 40 La. Ann. 28, 3 So. 397, 399; Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251, 252; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335; Heral v. Har ral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 23; Dougherty v. Snyder, 15 S. & R. (Penn.) 84, 16 Am. Dec. 520; Maguire v. Maguire, 7 Dana (Ky), 181, 186; Warrender v. Warrender, 2 Cl. & F. 488.

ciple of identity and upon the duty she owes to submit her will to her husband's, but also on the broader ground, the operation of which, with respect to constructive domicil, has already been noticed, that the law will presume that to be true which is true in the great majority of cases.1

Hence this general rule does not apply when the relations of the husband and wife are of an abnormal character. If they are divorced, or contemplate divorce, or if the husband deserts the wife, becomes insane or otherwise incompetent to be the head of the family and to furnish her with a support and a home, an abnormal condition results which will sometimes prevent the operation of the rule, and will authorize the wife to select a domicil apart from that of her husband. Indeed it has been said by an eminent tribunal that "the rule is that she may acquire a separate domicil whenever it is right and proper that she should do so. The right springs from the necessity for its exercise and endures as long as the necessity continues."

The general rule, however, is in the main strictly adhered to. Save in a few exceptional cases, presently to be adverted to, the wife cannot acquire a domicil separate and apart from her husband, though she actually lives in a different State, or even though they actually reside apart by agreement or under a

Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Burtis v. Burtis, 161 Mass. 508, 510; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, 229; Smith v. Smith, 19 Neb. 706, 28 N. W. 296, 298; Dutcher v. Dutcher, 39 Wis. 651; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335; Hunt v. Hunt, 72 N. Y. 217, 243; O'Dea v. O'Dea, 101 N. Y. 23, 36.

* Barber v. Barber, 21 How. 582; Dedham v. Natick, 16 Mass. 135; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335; Hunt v. Hunt, 72 N. Y. 217, 243; Colburn v. Holland, 14 Rich. Eq. (S. C.) 176, 229.

4 Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Mason v. Homer, 105 Mass. 116; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Dutcher v. Dutcher, 39 Wis. 651; 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; Warrender v. Warrender, 2 Cl. & F. 488, 523-524 (opinion of Lord Brougham).

5 The Supreme Court of the United States in Cheever v. Wilson, 9 Wall. 108, 124. See also Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372.