Hess v. Kimble

81 A. 363, 79 N.J. Eq. 454, 1911 N.J. Ch. LEXIS 18

• Court: New Jersey Court of Chancery
• Decided: October 26, 1911
• Status: Published

Opinion

Leaming, Y. C.

I am entirely satisfied that this court is without jurisdiction to entertain the petition filed in this suit for the reason that neither petitioner nor defendant was a bona fide resident of this state at the time the petition was filed.

The term “resident,” used in the several successive legislative acts of this state which confer jurisdiction on this court in suits for divorce and annulment of marriage, has been uniformly recognized as including not only the factum of residence but also the animus manendi; the residence required bj’’ our statute is the equivalent of domicil. Williams v. Williams, 78 N. J. Eq. (8 Buch.) 13; Coddington v. Coddington, 20 N. J. Eq. (5 C. E. Gr.) 263; Harral v. Harral, 39 N. J. Eq. (12 Stew.) 279; McShane v. McShane, 45 N. J. Eq. (18 Stew.) 341; Firth v. Firth, 50 N. J. Eq. (5 Dick.) 137; Sweeney v. Sweeney, 62 N. J. Eq. (17 Dick.) 357; Tracy v. Tracy, 62 N. J. Eq. (17 Dick.) 807; Grover v. Grover, 63 N. J. Eq. (18 Dick.) 771; Hunter v. Hunter, 64 N. J. Eq. (19 Dick.) 277; Mason v. Mason, 69 N. J. Eq. (3 Robb.) 292; King v. King, 74 N. J. Eq. (4 Buch.) 824.

It is apparent that petitioner cannot be regarded.as having been a bona fide resident of this state, within the meaning of our statute, at the time of the commencement of this suit. As a minor the domicil of petitioner was presumptively that of his parents. The evidence discloses no emancipation upon the part of his parents. On the contrary petitioner has manifestly at all times been under the control and subject to the direction of his father; he has been and now is a member of his father’s family in every essential aspect except that of physical presence; his home is his father’s home; at the time the petition was filed petitioner was boarding with relatives in New Jersey at the expense of his father, and was not in this state as the result of any independent exercise of his own will; the father at his own instance procured a lawyer to institute this suit 'in petitioner’s behalf and directed petitioner to go to the lawyer and sign the petition. Under such conditions it is impossible to regard petitioner as a bona fide resident of New Jersey within the meaning of our statute. Chancellor Runyon, in Blumenthal v. Tenneholz, 31 N. J. Eq. (4 Stew.) 194, adopting the view expressed iii Phillimore on Domicil, states the law of domicil of a minor to be as follows: ''‘The domicil of the legitimate unemaneipated minor who is not sui juris, and whose will, therefore, cannot concur with the fact of residence, is, if his father' be alive, the domicil of the latter. Phillim. Dom. 37. It is an undisputed position of all jurists, says that writer, that, of his own accord, proprio marte, the minor cannot change his domicil. Ibid. See, also, Story Confl. L. § 46. The burden of proof to establish the change of domicil on the part of the minor is on him. Ibid. § 47.” See, also, Dennysville v. Truscott, 30 Me. 470; Inhabitants of Charlestown v. Inhabitants of Boston, 13 Mass, 469; Overseer Washington v. Overseer Beaver, 3 Watts & S. (Pa.) 548; Taylor v. Jeter, 33 Ga. 195; Marks v. Marks, 75 Fed. Rep. 321.

The evidence in this case also strongly indicates that neither petitioner nor petitioner’s father entertained any thought or purpose of regarding this state as petitioner’s permanent home until a day or two before the petition was filed, when petitioner’s father ascertained from a lawyer of this state that if petitioner were a bona fide resident of this state relief could be procured from our courts which could not be procured from the courts of Pennsylvania with that state as petitioner’s residence. It seems, indeed, more than probable that the determination of petitioner and his father to regard this state as the residence of petitioner was for the purpose of procuring the benefit of our statute. It seems needless, to state that if petitioner’s sudden determination to regard himself a resident of this state was only for the purpose of procuring the benefit of our statute, no relief can be granted.

I will advise a decree dismissing the petition.