Pound, J.
By a judgment of divorce against Mary Casey Thorne, the respondent herein, custody of the infant child of herself and her husband was awarded to the husband and she was found not fit, competent or a proper person to have custody of it. Thereafter the husband died. His domicile and, therefore, that of the child up to the time of his death was in Dutchess county. The mother is domiciled in New York county. The child is not in her actual custody. Dutchess County Surrogate’s Court, without citing her, appointed guardians of the person and property of the infant. She thereafter appeared and moved to vacate the letters of guardianship on the ground that the court had no jurisdiction to appoint guardians; that the Surrogate’s Court of New York county alone had such jurisdiction for the reason that on the death of the father the domicile of the mother
became the domicile of the child. Her motion was denied. The Appellate Division reversed and granted an order vacating the letters of guardianship .
The question is as to the jurisdiction of the Surrogate’s Court of Dutchess county. The Surrogate’s Court Act (§ 174) provides:
“
Where an infant has no guardian, a surrogate’s court has jurisdiction to appoint a general guardian of an infant’s person, or property, or of both, in the following cases:
“ 1. Where the infant is a resident of that county, or has sojourned in that county for at least one year immediately preceding the application.
“ 2. Where the infant is not a resident of the state, but has property, real or personal, situated in that county.”
The appellants contend that because the mother was, by the decree of divorce, adjudged to be an unfit person to have the custody of the child, the general rule that infants have the domicile of the father and after his death the domicile of the mother ceases to apply and that the legal domicile of' the infant remained in the county of the father’s domicile. Their position rests wholly on the proposition, not that the child had in fact a residence of its own in Dutchess county or was sojourning there, but that the law continued his domicile in Dutchess county
ex necessitate
as if both parents were dead and the child had acquired no domicile with his natural guardian.
(Lamar
v.
Micou,
114 U. S. 218, 223.) They contend that on this proposition, Dutchess County Surrogate’s Court had jurisdiction to appoint a guardian whether or not the child actually dwelt in Dutchess county.
The question is an interesting one which leads into the shadow land whence legal fictions have their origin.
Why at common law was the domicile of an infant necessarily that of the father? Not because the child
actually resides with him and is a part of his family. Rather because of the
patria potestas
of the father; the tutelege of the child and the headship of the family of which the child is a part; the reciprocal rights and duties of father and child. “ The legal inseparability of father and child is essential to their-mutual legal obligations.” (Beale on Domicil of an Infant, 8' Cornell Law Quarterly, 103.) Even though the child is in fact living apart from the father, his legal domicile was nevertheless with the father.
(Murdock
v.
Ward,
67 N. Y. 387.) When the father dies the dead hand doés not hold the child at the- father’s domicile. The mother becomes the head of the family. She succeeds to. his rights and duties. She may determine where the infant may live. His domicile automatically in legal contemplation attaches to hers. This right rests not on the actual custody of the child but on the right of the mother, the
matria potestas.
The decree of divorce merely disposed of the question of the custody of the child as between husband and wife. This is the rule in most jurisdictions that have passed on the question although the contrary doctrine is not without support.
(Barnes
v.
Long,
54 Ore. 548; 21 Ann. Cas. 465, and cases cited.) As between them the court held that she was not fit, competent or a proper person to have custody of the infant child. She ceased to be a married woman and joint guardian of her child but she still remained his mother. Her rights of joint guardianship with her husband (Dom. Rel. Law, § 81) were taken from her but when he died the domicile of the child was not left in doubt. She became entitled as a parent to apply in the county of her domicile for letters of guardianship as against the world. It does not follow that she is entitled to receive such letters. Under the circumstances it may be assumed that the relatives and the person actually in care and custody of the infant would be cited to show cause why she should not be appointed. (Surrogate’s Court Act, § 177.) The surrogate may in his dis
cretion on her application appoint another person if there are reasons why the mother should not be appointed. (Surrogate’s Court Act, § 179.)
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Pound, J.
By a judgment of divorce against Mary Casey Thorne, the respondent herein, custody of the infant child of herself and her husband was awarded to the husband and she was found not fit, competent or a proper person to have custody of it. Thereafter the husband died. His domicile and, therefore, that of the child up to the time of his death was in Dutchess county. The mother is domiciled in New York county. The child is not in her actual custody. Dutchess County Surrogate’s Court, without citing her, appointed guardians of the person and property of the infant. She thereafter appeared and moved to vacate the letters of guardianship on the ground that the court had no jurisdiction to appoint guardians; that the Surrogate’s Court of New York county alone had such jurisdiction for the reason that on the death of the father the domicile of the mother
became the domicile of the child. Her motion was denied. The Appellate Division reversed and granted an order vacating the letters of guardianship .
The question is as to the jurisdiction of the Surrogate’s Court of Dutchess county. The Surrogate’s Court Act (§ 174) provides:
“
Where an infant has no guardian, a surrogate’s court has jurisdiction to appoint a general guardian of an infant’s person, or property, or of both, in the following cases:
“ 1. Where the infant is a resident of that county, or has sojourned in that county for at least one year immediately preceding the application.
“ 2. Where the infant is not a resident of the state, but has property, real or personal, situated in that county.”
The appellants contend that because the mother was, by the decree of divorce, adjudged to be an unfit person to have the custody of the child, the general rule that infants have the domicile of the father and after his death the domicile of the mother ceases to apply and that the legal domicile of' the infant remained in the county of the father’s domicile. Their position rests wholly on the proposition, not that the child had in fact a residence of its own in Dutchess county or was sojourning there, but that the law continued his domicile in Dutchess county
ex necessitate
as if both parents were dead and the child had acquired no domicile with his natural guardian.
(Lamar
v.
Micou,
114 U. S. 218, 223.) They contend that on this proposition, Dutchess County Surrogate’s Court had jurisdiction to appoint a guardian whether or not the child actually dwelt in Dutchess county.
The question is an interesting one which leads into the shadow land whence legal fictions have their origin.
Why at common law was the domicile of an infant necessarily that of the father? Not because the child
actually resides with him and is a part of his family. Rather because of the
patria potestas
of the father; the tutelege of the child and the headship of the family of which the child is a part; the reciprocal rights and duties of father and child. “ The legal inseparability of father and child is essential to their-mutual legal obligations.” (Beale on Domicil of an Infant, 8' Cornell Law Quarterly, 103.) Even though the child is in fact living apart from the father, his legal domicile was nevertheless with the father.
(Murdock
v.
Ward,
67 N. Y. 387.) When the father dies the dead hand doés not hold the child at the- father’s domicile. The mother becomes the head of the family. She succeeds to. his rights and duties. She may determine where the infant may live. His domicile automatically in legal contemplation attaches to hers. This right rests not on the actual custody of the child but on the right of the mother, the
matria potestas.
The decree of divorce merely disposed of the question of the custody of the child as between husband and wife. This is the rule in most jurisdictions that have passed on the question although the contrary doctrine is not without support.
(Barnes
v.
Long,
54 Ore. 548; 21 Ann. Cas. 465, and cases cited.) As between them the court held that she was not fit, competent or a proper person to have custody of the infant child. She ceased to be a married woman and joint guardian of her child but she still remained his mother. Her rights of joint guardianship with her husband (Dom. Rel. Law, § 81) were taken from her but when he died the domicile of the child was not left in doubt. She became entitled as a parent to apply in the county of her domicile for letters of guardianship as against the world. It does not follow that she is entitled to receive such letters. Under the circumstances it may be assumed that the relatives and the person actually in care and custody of the infant would be cited to show cause why she should not be appointed. (Surrogate’s Court Act, § 177.) The surrogate may in his dis
cretion on her application appoint another person if there are reasons why the mother should not be appointed. (Surrogate’s Court Act, § 179.)
The Surrogate’s Court of Dutchess county had no jurisdiction to appoint a general guardian unless the infant was a resident of the county. (Surrogate’s, Court Act, § 174.) Residence and domicile here mean the same. The infant, generally speaking, has no legal residence of his own, whatever his place of abode may be. In this connection the extension of the mother’s right of joint guardianship seems relevant as bearing on the practical result. The identity of person of husband and wife is no, longer a fetish of the law. The residence of the infant is no longer exclusively that of the father. It may be the residence either of the father or the mother. As the-mother is the joint guardian of the children with the husband, if the wife has selected her own domicile, as she may, whenever it is necessary or proper for her to do so
(Williamson
v.
Osenton,
232 U. S. 619;
Shute
v.
Sargent,
67 N. H. 305;
Matter of Florance,
54 Hun, 328), and the child lives with her, the domicile of the mother is for the time being the domicile of the child. Her rights of custody are equal to those of the father. In this case the mother's rights were taken from her‘by the judgment of divorce but were revived as against the world by the death of the husband. My learned brother Lehman concedes that letters of guardianship should not- have been granted by the Dutchess County Surrogate’s Court without notice to her; that she has not been
“
judicially deprived of the custody of the child ” in the sense that a citation need not be issued to her under Surrogate’s Court Act (§ 177). The dilemma, it would seem, is this: Shall she be ignored as an outcast or recognized as a mother? If she is not to be ignored, if the child is still her child, her rights must be regarded. Her right as a parent, not as a married woman, to the care and custody of the child becomes superior to
that of all others unless it should be shown anew by the child’s relatives or custodians that she is an unfit person to exercise such guardianship. The judgment of divorce may be evidence that she is unfit, but it is not conclusive. It does not bar her right to apply for letters of guardianship. Her domicile fixes the domicile of the child, “ the technically preeminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.” (Holmes, J., in
Williamson
v.
Osenton, supra,
p. 625.) Otherwise the child has no domicile for an infant cannot choose a residence. The child resides with his mother in the contemplation of the law, even though he be living elsewhere, until otherwise disposed of by competent authority and that authority, so far as this case is concerned, is the Surrogate’s Court of the county of the mother’s domicile.
It is urged that practical difficulties are in the way of the application of this rule of domicile to cases where the mother is a non-resident and the child is in the State. They may be easily surmounted. If the mother is a nonresident of the State but the infant has property, real or personal, situated in the county, the Surrogate’s Court of the county may appoint a guardian (Surrogate’s Court Act, § 174), so if the mother lives in China or Peru a guardian might be appointed here if such jurisdictional facts appeared. If a mother in China or Peru were not asserting her rights of guardianship, the Surrogate’s Court of the county of actual sojourn of the child might have jurisdiction to appoint a guardian of the person and the property. (Surrogate’s Court Act, § 174.) Nor is the jurisdiction of the Surrogate’s Court exclusive. The jurisdiction of the Supreme Court to appoint guardians of infants within the jurisdiction does not depend upon the legal domicile of the infant if the infant is actually dwelling within the State.
(Matter of Hubbard,
82 N. Y. 90.) But here we have to consider only the jurisdiction
of the Surrogate’s Court of Dutchess county in this case and we conclude that it was without jurisdiction.
The order should be affirmed, with costs.