Warren v. Harding

2 R.I. 133

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1852
• Status: Published

Opinion

Greene, C. J.

delivered the opinion of the Court. The first question to be settled is whether the testator had his domicil in Providence or Bristol at the time he made his will. The evidence on this subject is conflicting. Bris tol was his native place, and, it is agreed, was his home at the death of his wife and for some time after. He was from home the greater part of his time. He was at home in 1847 and in 1849. He seems to have expressed himself to his Bristol friends one way, and to his Providence friends another way, as to where he intended to make his home. After a careful examination of all the evidence, we do not find sufficient evidence of any change of domicil from Bristol to Providence.

But as the case has been fully argue'd upon its merits, we have thought it for the benefit of all parties to announce the opinion we have formed and thus prevent future litigation.

The testator took passage on board the steam boat Henlopen at Philadelphia, for the Delaware Breakwater, where he embarked on board the Schooner Zachary Taylor for Chagres, as passenger, and arrived at that port. He was employed by Howland & Aspinwall of New York to go to Chagres, for the purpose of taking command of a lighter vessel, to lighten vessels bound up the river to Chagres. He made his will while on board the Henlopen, and after he sailed from Philadelphia. The Henlopen towed the Zachary Taylor to the Delaware Breakwater, and thence the latter vessel sailed for Cha-gres.

The will, being attested by only one witness, is not entitled to probate, unless it comes within the proviso* which excepts the wills of seamen at sea and soldiers in actual service, from the general operation of the statute. Dig. of 1844, p. 232, §4.

The testator was a master mariner by profession. The counsel for the executor contends that the business, in which he was to be employed on his arrival at Chagres, was that of a seaman at sea, and, being in the employ of Howland & Aspinwall on his passage to Chagres to be employed in that business, he is to be deemed a seaman at sea, just as much as he would be after his arrival at Cha-gres, and the commencement of the service he was to be engaged in there.

Now, in the first place, we do not think that as captain of a lighter vessel in the river, lighting vessels to that port, he could be considered a seaman at sea. But if this were otherwise, and his employment after his arrival at Chagres, was on a voyage across the Atlantic, still we think while á passenger on board the Henlopen and the Zachary Taylor, he was not a seaman at sea. The meaning of these words is a seaman employed as such at sea. If he had been one of the seaman on board the Zachary Taylor, he would be considered as at sea, as soon as she sailed from the wharf at Philadelphia, and this whether at the time of making his will he was on board the Henlopen or the Zachary Taylor, the two vessels being fastened together and the Henlopen towing the Zachary Taylor.

The difficulty is not in the place where the will was made, but in the fact that the testator was not at the time of making it a seaman in the sense of the statute, any more than he was in his passage in the cars from Providence to Stonington and thence in the Steam Boat to-New York and thence in the cars to Philadelphia.

Decree of the Municipal Court reversed.