Town of Jamaica v. Town of Townshend

19 Vt. 267

• Court: Supreme Court of Vermont
• Decided: February 15, 1847
• Status: Published

Opinion

The opinion of the court was delivered by

Rebfield, J.

No doubt the question of residence, of domicil, is very much controlled by the status of the mind of the dweller, or inhabitant. But domicil is not a thing resting wholly in intention. If it were so, most Americans would be without any fixed domicil. Many of us have, perhaps, high hopes of a happier home, and comfort and plenty in some far off region, where all the necessaries of life grow spontaneously, almost, and where neither idleness, vice or dissipation, will cheat us of comfort and plenty. But all this effects no present change of domicil; — that is still the home, whether the removal is intended in twenty-nine days, or*as many weeks, or years. In either case, it may never come.

So, in the present case, there is nothing, which shows that the pauper had not taken up his residence for the time (and that is all which is necessary) in Londonderry. Residence is a fact. Here the fact and the manner of dwelling is conceded; and the court charged the jury, that, in such a case, the intention to build a house and remove into it in the town of Jamaica did not constitute a residence in Jamaica. Is there any case,where such an intention will constitute a residence ? I think not. When one leaves home, or leaves a former residence, the intention to return, the animus rever tendi, will often prolong the virtual or legal residence, or domicil, when the actual commorancy may be, most of the time, in another place. Such are those occasional absences, which always occur in visits of business, or pleasure, when one’s family attends him. Nor is it important, whether, during these temporary absences, the family board, or keep house, or whether the absence be for a few weeks, or many months, or years, even, — as occurs in the case of foreign ministers, and members of Congress, sometimes.

But in all these cases there is always some place, which the party does, or may justly, call home, some local habitation, which has a •tangible, palpable existence, out of the mind of the party. I do not say this is always indispensable; but there' must be something more than a mental purpose of return at some indefinite, future time.

Nothing of this kind exists in the present case. ■ The statute in regard to paupers recognizes But two descriptions of persons, those who have “ come to reside ” in a town, and “transient persons.” The one class, if they become chargeable, are subject to an order of removal; the other class may be provided for, and the expenses recovered of ithe town, where the person is settled. Can there be any doubt to which class of persons this pauper belonged, while remaining within the limits of Londonderry ? How very much stronger is this case, in its facts, than that of Middlebury v. Waltham, 6 Vt. 200, where the pauper was a hired servant, who had come to Middlebury to labor for no definite time, and after four days, was taken sick and died; — and yet she was considered resident and an order of removal necessary, to entitle the town to recover, — the court saying, “ that all persons are to be considered either residents, or transient persons ; and perhaps visitors and travellers will comprehend most of the latter description“ those with families, who remove with them into a town,” &c., are residents.

And whether the residence is intended to be absolutely permanent, or not, is not important. The question is, where does he, for the time, dwell ? Is he now at home ? Where does he reside for the time being l We never think of applying these terms to travellers, visitors, persons staying for education, for health, or for recreation. We all understand, that such persons are away from home, that they expect soon to return, or at some time. But in the present case it would seem'the pauper never had resided upon the land, for which he had bargained; he had permanently and voluntarily abandoned his former home, without any animus revertendi. But, so far as the mind was concerned, he was looking forward, instead of hack; his home in Jamaica, during this interval, was not a remembrance, but a hope, a desire. The mind may prolong a residence ; but it will hardly anticipate one, as is claimed here.

The question of the actual residence, in our opinion, would not have been very different in principle, if this piece of land had been in some third town. In that case few persons would dispute, that the pauper’s residence, during the twenty-nine days, was in Londonderry. If this case were to be opened, it seems to us that it will not do to hold, that the stay in Londonderry is no residence, upon the mere ground of the intention to build a house and go to reside upon this land. If so, then all residences of the same, or similar, character, of whatever duration, must be so considered,— which will be absurd.

Judgment affirmed.