LOVELY, J.
Appellant Fox is the administrator of the estate of Ethel Vander-warker, deceased, appointed by the proper court in Pennsylvania. He applied to the probate court of Hennepin county for an order requiring payment of a legacy bequeathed to Ethel Vanderwarker in the will of John Vanderwarker, deceased, of which respondent is executor, which was granted, and respondent appealed. Upon hearing in the district court, findings were filed, and an order reversing the judgment of the probate court rendered. A motion for a new trial was denied, from which order the entire record is brought here for review.
The facts requisite to an understanding of the questions involved may be summarized' as follows: John Vanderwarker, a resident of Minneapolis, died January 21, 1887, after executing a will bearing date the same day, which was thereafter duly admitted to probate. This will contains the following provisions:
[205]*205“I give, devise, and bequeath unto my executors the sum of five thousand dollars, to be held in trust for my beloved granddaughter, Ethel Vanderwarker, to be paid to my said granddaughter, Ethel, in the manner, at the times, and upon the conditions hereinafter stated, and not otherwise. Said sum of five thousand dollars shall be by my executors invested, by loaning the same, and taking as security for such loans first mortgages upon unincumbered real estate, the land of which shall be double the value of the loan made thereon. The interest on said loan to be added to the principal until my said granddaughter, Ethel, shall have arrived at the age of twenty-one years, at which time I direct my executors to pay to my said granddaughter, Ethel, all of the interest which shall have accrued to that time, leaving the said sum of five thousand dollars invested as aforesaid for her benefit. And I direct my said executors to pay to my said granddaughter, Ethel, the interest on said sum of five thousand dollars annually thereafter, until she arrives at the age of thirty years, when I direct my said executors to pay to my said granddaughter, Ethel, the said sum of five thousand dollars ($5,000), and any interest thereon which may have accrued and not have been paid to her.”
Ethel Vanderwarker was the daughter of Henry H. Vander-warker, son of testator, by his first wife. He was married to the mother of Ethel, February, 1879, at St. Paul. The child, Ethel, was born in April, 1880. In August, 1883, her parents separated. In December, 1884, the wife brought an action in Ramsey county to procure a divorce. The action was tried, and the divorce denied, but by order duly made in the action the custody of Ethel was given to the mother, who supported and cared for her until her death, some ten years later. In April, 1885, the mother left Minnesota, taking Ethel with her, and went to California. There has never been a final entry of judgment in the divorce proceedings in Ramsey county. By proceedings duly had, the mother of Ethel sought a divorce in the courts of California, and in February, 1886, obtained a decree granting the same, and giving her the absolute custody of the child. No appearance was made in this action by the husband, but judgment was properly secured and entered in behalf of the mother by default. The mother afterwards married a Mr. Rogers, and in 1891 returned to the state of Minnesota, and lived there from April of that year until September, 1892, when she left Minnesota, and, taking Ethel with her, went to Pennsylvania, [206]*206where the child was placed at school by the mother, and remained there until she died of diphtheria on January 31, 1893, at the age of thirteen years. Henry Vanderwarker in 1895 married again and has resided with his wife in this state since the death of Ethel.
At the time of the execution of the will, testator knew of the separation of his son from his wife, also of the divorce proceedings in Ramsey county and in California, and his legacy in favor of Ethel was probably made in the conviction on his part of the inability of his son and of the mother of Ethel to live together. From the time of the separation of Henry Vanderwarker and his wife, with the exception of the gift of a few presents of little value, the father did nothing for the support of Ethel; but that obligation, which was assumed by the mother, appears to have been most judiciously and effectively performed by the latter. The daughter was kindly nurtured during childhood and placed at excellent schools by her mother, who earned her living as a stenographer, while the father was provided for by an ample income derived from John Vander-warker’s estate. At the time of the removal of Mrs. Rogers and Ethel to Pennsylvania, the mother fixed her domicile at Downing-ton, in that state, where it has continued ever since. Under the laws of California, as well as of Pennsylvania, the property of a deceased minor, unmarried and intestate, descends in equal shares to the father and mother, if living, or the survivor, subject to the payment of debts, while .under our statute the father would take the entire property of such minor. G. S. 1894, §§ 4471, subd. 3, 4477, subd. 6.
Upon the facts above stated, which were substantially established at the trial, the court below held: First, that the domicile of Ethel at the time of her death was in Minnesota; that she took the domicile of her father from birth, which she, by legal intendment, had never lost; also, that it was the intent of the testator, John Vanderwarker, by the legacy above referred to, that Ethel should take at first only a contingent interest in such legacy, and that the ' same should not vest until she had reached the age of twenty-one years, — which are the subjects of contention on this appeal.
The most difficult question arises from the determination of the [207]*207domicile of Ethel at the time of her death, and this perplexity is occasioned by the artificial rules which have long been recognized concerning the subject in analogous cases.
It is contended by counsel for respondent that the domicile of a child is that of its father, that notwithstanding the legal separation of father and mother, or the guardianship imposed by the courts upon the mother, the domicile of the father is imputed, as a matter of law, to the child, which domicile affects inheritance rights, draws to it the law of such domicile, and controls the disposition of the estate of the child in case of death. It may be conceded that this contention finds support from cases in England and in this country, but none that directly decide upon the relations arising from the separation of the husband and wife by an absolute decree, when the decree gives the custody of the minor child to the wife.
The theory that the domicile of the father continues until the majority of the ‘Child, without reference to the residence of the child in the meantime and the real custody and control by the mother, is one of our inheritances from the common law, which merged the legal entity of the wife in that of her paramount lord, and recognized no separate right of property in her, free from the control of her husband. And until the recent enabling statutes, recognizing her independent right to control and manage her property, had swept away this unjust relic of antiquity, it followed as a logical necessity that the residence of the wife and mother, eveh in cases of separation by divorce, did not control and fix the domicile of the marriage offspring.
Free access — add to your briefcase to read the full text and ask questions with AI
LOVELY, J.
Appellant Fox is the administrator of the estate of Ethel Vander-warker, deceased, appointed by the proper court in Pennsylvania. He applied to the probate court of Hennepin county for an order requiring payment of a legacy bequeathed to Ethel Vanderwarker in the will of John Vanderwarker, deceased, of which respondent is executor, which was granted, and respondent appealed. Upon hearing in the district court, findings were filed, and an order reversing the judgment of the probate court rendered. A motion for a new trial was denied, from which order the entire record is brought here for review.
The facts requisite to an understanding of the questions involved may be summarized' as follows: John Vanderwarker, a resident of Minneapolis, died January 21, 1887, after executing a will bearing date the same day, which was thereafter duly admitted to probate. This will contains the following provisions:
[205]*205“I give, devise, and bequeath unto my executors the sum of five thousand dollars, to be held in trust for my beloved granddaughter, Ethel Vanderwarker, to be paid to my said granddaughter, Ethel, in the manner, at the times, and upon the conditions hereinafter stated, and not otherwise. Said sum of five thousand dollars shall be by my executors invested, by loaning the same, and taking as security for such loans first mortgages upon unincumbered real estate, the land of which shall be double the value of the loan made thereon. The interest on said loan to be added to the principal until my said granddaughter, Ethel, shall have arrived at the age of twenty-one years, at which time I direct my executors to pay to my said granddaughter, Ethel, all of the interest which shall have accrued to that time, leaving the said sum of five thousand dollars invested as aforesaid for her benefit. And I direct my said executors to pay to my said granddaughter, Ethel, the interest on said sum of five thousand dollars annually thereafter, until she arrives at the age of thirty years, when I direct my said executors to pay to my said granddaughter, Ethel, the said sum of five thousand dollars ($5,000), and any interest thereon which may have accrued and not have been paid to her.”
Ethel Vanderwarker was the daughter of Henry H. Vander-warker, son of testator, by his first wife. He was married to the mother of Ethel, February, 1879, at St. Paul. The child, Ethel, was born in April, 1880. In August, 1883, her parents separated. In December, 1884, the wife brought an action in Ramsey county to procure a divorce. The action was tried, and the divorce denied, but by order duly made in the action the custody of Ethel was given to the mother, who supported and cared for her until her death, some ten years later. In April, 1885, the mother left Minnesota, taking Ethel with her, and went to California. There has never been a final entry of judgment in the divorce proceedings in Ramsey county. By proceedings duly had, the mother of Ethel sought a divorce in the courts of California, and in February, 1886, obtained a decree granting the same, and giving her the absolute custody of the child. No appearance was made in this action by the husband, but judgment was properly secured and entered in behalf of the mother by default. The mother afterwards married a Mr. Rogers, and in 1891 returned to the state of Minnesota, and lived there from April of that year until September, 1892, when she left Minnesota, and, taking Ethel with her, went to Pennsylvania, [206]*206where the child was placed at school by the mother, and remained there until she died of diphtheria on January 31, 1893, at the age of thirteen years. Henry Vanderwarker in 1895 married again and has resided with his wife in this state since the death of Ethel.
At the time of the execution of the will, testator knew of the separation of his son from his wife, also of the divorce proceedings in Ramsey county and in California, and his legacy in favor of Ethel was probably made in the conviction on his part of the inability of his son and of the mother of Ethel to live together. From the time of the separation of Henry Vanderwarker and his wife, with the exception of the gift of a few presents of little value, the father did nothing for the support of Ethel; but that obligation, which was assumed by the mother, appears to have been most judiciously and effectively performed by the latter. The daughter was kindly nurtured during childhood and placed at excellent schools by her mother, who earned her living as a stenographer, while the father was provided for by an ample income derived from John Vander-warker’s estate. At the time of the removal of Mrs. Rogers and Ethel to Pennsylvania, the mother fixed her domicile at Downing-ton, in that state, where it has continued ever since. Under the laws of California, as well as of Pennsylvania, the property of a deceased minor, unmarried and intestate, descends in equal shares to the father and mother, if living, or the survivor, subject to the payment of debts, while .under our statute the father would take the entire property of such minor. G. S. 1894, §§ 4471, subd. 3, 4477, subd. 6.
Upon the facts above stated, which were substantially established at the trial, the court below held: First, that the domicile of Ethel at the time of her death was in Minnesota; that she took the domicile of her father from birth, which she, by legal intendment, had never lost; also, that it was the intent of the testator, John Vanderwarker, by the legacy above referred to, that Ethel should take at first only a contingent interest in such legacy, and that the ' same should not vest until she had reached the age of twenty-one years, — which are the subjects of contention on this appeal.
The most difficult question arises from the determination of the [207]*207domicile of Ethel at the time of her death, and this perplexity is occasioned by the artificial rules which have long been recognized concerning the subject in analogous cases.
It is contended by counsel for respondent that the domicile of a child is that of its father, that notwithstanding the legal separation of father and mother, or the guardianship imposed by the courts upon the mother, the domicile of the father is imputed, as a matter of law, to the child, which domicile affects inheritance rights, draws to it the law of such domicile, and controls the disposition of the estate of the child in case of death. It may be conceded that this contention finds support from cases in England and in this country, but none that directly decide upon the relations arising from the separation of the husband and wife by an absolute decree, when the decree gives the custody of the minor child to the wife.
The theory that the domicile of the father continues until the majority of the ‘Child, without reference to the residence of the child in the meantime and the real custody and control by the mother, is one of our inheritances from the common law, which merged the legal entity of the wife in that of her paramount lord, and recognized no separate right of property in her, free from the control of her husband. And until the recent enabling statutes, recognizing her independent right to control and manage her property, had swept away this unjust relic of antiquity, it followed as a logical necessity that the residence of the wife and mother, eveh in cases of separation by divorce, did not control and fix the domicile of the marriage offspring. There could not, from the nature of the case, be two places of domicile; and the courts, without right or authority to recognize a separate legal existence in the wife, were compelled to attach the domicile of the child, for legal purposes, to the father. Perhaps under the old restrictions in a majority of cases such a rule was the best that could be adopted, and was fraught with the least injury; but in a majority of instances also, marriage and parentage, from the natural affection and humanity of the father, were sufficient to insure the best interests of the children.
Exceptional cases of marital infelicity, “producing separations and [208]*208involving judicial interposition to secure the best interests of the children, might well justify the earnest solicitude of the courts in dealing with the relations of husband and wife; and we cannot see why the humane and beneficial progress of the law, which has endowed married women with the right to hold property and the means for its protection, with all that such rights imply in behalf of her interest in her children should require an adherence to artificial rules, when the reason for the same has ceased, or compel us blindly to follow precedents, when the reason for their existence has ended. It has been held that the legal guardian of the child may fix its domicile, and that the domicile of such guardian draws to it that of the child. This is obviously the necessary rule, and in such cases secures the best interests of the child. Story, Confl. Laws, § 506; Pedan v. Administrator, 8 Ohio, 227; Wood v. Wood, 5 Paige, 596;. Townsend v. Kendall, 4 Minn. 315 (412). It has also been held that there is a modification of the rule that arbitrarily attaches the domicile of the father to the child, and gives it to the mother, when the father has abandoned it. Corrie v. Corrie, 42 Mich. 509, 4 N. W. 213.
It would seem to follow that if the interest of the child is to be considered in cases of legal separation, when hostility between the father and mother exists, where the latter is endowed with the legal custody of the child, there is no wisdom or justice to support the rule that the legal residence of the mother and child does not establish the domicile of the latter. The question is new and of first impression in this state, and we should adopt a rule consonant with justice, humanity, and the progressive spirit of the law, which recognizes the separate legal rights of the wife, and will also secure the best interests of the person most concerned; and, upon the grounds, stated, which seem to us to be convincing, we hold that at the time of the death of Ethel Vanderwarker the domicile of the mother established the domicile of her daughter Ethel. This view finds support upon principle as well as in the following recent decisions: Wilkinson v. Deming, 80 Ill. 342; Burritt v. Burritt, 29 Barb. 124; People v. Dewey, 23 Misc. (N. Y.) 267, 50 N. Y. Supp. 1013.
The remaining question involved in this appeal requires a con[209]*209struction of tbe fourth paragraph of the will of John Vanderwarker above referred to, which turns upon the question whether the legacy provided for therein was vested and took effect upon the death of the testator, in which case the fund provided for should have been set apart, and upon the death of Ethel its avails necessarily distributed to her heirs according to the law of her domicile.
The provisions of the will do not seem to contemplate that the legacy shall remain in the estate, but shall be invested, the interest added to the principal, and both principal and interest are to accumulate; and, if the legacy is to be returned in any event to the estate, no provision therefor has been made in any other terms of the testament, and it does not seem probable that it was the intent of the testator, which is controlling in such case, that such legacy should revert to the estate. We cannot hold that it does, in the absence of a specific provision to effectuate that contingency. A consideration of significance in this construction is to be derived from the legal effect of the legacy upon the administration and settlement of the estate. There are no limitations whatever in this instrument that prevent a continuance of any other trust with reference do this subject than to execute the legacy according to its terms. The execution of the will was to be carried out with considerate speed. The balancé of the estate was to be disposed of for other purposes, and, if the legacy is to revert, it must do so as a matter of law, rather than as the expressed intention of the testator, to be found anywhere in the instrument itself.
It was suggested that some force was to be given to the natural feelings of a father for his son, and that, as between the divorced mother and such son, the testator would naturally have preferred to dispose of his entire property to Henry Vanderwarker. There is nothing in the will that indicates this purpose. The testator was evidently thinking of the child and her interests as they might arise in the future,,rather than of her father; and he must have known, too, from certain considerations therein which need not be mentioned, that the mother was the best protector of the child, and naturally have thought that in the course of time Ethel, before her majority, or at least before arriving at the age of thirty, would marry; and the inference appears to be probable that the gift of [210]*210this legacy, and its protection from depletion, was a wholesome provision for her protection in such a contingency, and probably excited by reasonable solicitude for her future welfare. And it is not easy to see how the probable and natural wishes of the testator could have been effected, without an intent to vest the legacy upon his death. If this reasonable supposition is to be drawn from the dying bequest of John Vanderwarker to his granddaughter, and the legacy was vested, the conclusion follows that the same was the property of Ethel, and upon her death descends to her heirs. Zartman v. Ditmars, 37 App. Div. (N. Y.) 173, 55 N. Y. Supp. 908; Lippincott v. Stottsenburg, 47 N. J. Eq. 21, 20 Atl. 361.
The order of the district court is reversed, and this case is remanded, with directions to the district court of Hennepin county to proceed in accordance with the views above expressed.