GRIER, Circuit Justice.
Domicil is a word which we have adopted from the Roman or civil law, but which it has been considered so difficult to define with precision and accuracy, that an eminent writer (Bynkershoek) on the subject was unwilling to hazard a definition, and therein has been commended by a learned English judge (Lord Alvanley, 5 Yes. 750) for his wisdom.
The Roman codes described domicil as follows: “In whatever place an individual has set up his household gods and made the chief seat of his affairs and interest; from which, without some special avocation he has no intention of departing; from which when he has departed he is considered to be from home; and to -which, when he has returned, he is considered to have returned home. In this place there is no doubt whatever he has his domicil.” Quoted in Phillim. Dom. 11.
It would tend rather to confuse than to elucidate the subject, to notice the many other attempts at definition of this word, and to attempt to point out their several merits or defects. It may be correctly said, however, that no one word is more nearly synonymous with the word “domicil,” than our word “home.” The definition given by the late Judge Rush of this city (Guier v. O’Daniel, 1 Bin. 349. note), which has received the approbation of an English writer (Phillimore) on this subject, combines, it is probable, accuracy with brevity beyond any other. He defines it “a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain for an unlimited time.”
Two things, says Judge Story (Confl. Laws, § 44), must concur to constitute domicil. First: Residence. Secondly: The intention of making it the home of the party. There must be the fact and the intent, and in many cases actual residence is not indispensable to retain a domicil after it is acquired, but it is retained animo solo, by the mere intention not to change it. or adopt another. If therefore a person leave his home for temporary purposes, but with an intention to return to it, this change of place is not, in law, a change of domicil.
There are few subjects presented to courts for their decision which are surrounded with so many practical difficulties as questions of domicil. The residence is often of an equivocal nature: the intention extremely obscure, and has to be gathered from acts and declarations oftentimes conflicting and contradictory. It is probable, however, that there is not a case to be found in all the books which presents more difficulties arising from this cause than the one before us. The testimony fills an 8vo. volume of nearly 900 pages. You have the whole history of the life of Mathias Aspden. all that he did. much that he said, and much more that he has written. Indeed it would seem, that being a man of much leisure he had spent a great part of his life in writing documents which bear — some indirectly, and many directly — upon the very question which you are called on to decide. And with an obliquity of genius rarely exceeded, he has enveloped it in so much contradiction and confusion and obscurity that it will require your utmost attention and the vigorous exercise of all your powers to solve the question.
On the first point submitted to you there is no doubt. The domicil of origin of Mr. Aspden was Philadelphia, in the then British province of North America.
The next question will be: Did the testator ever change this domicil, and acquire another; —a domicil of choice as distinguished from his domicil of origin? And this is the great question in the case.
In the consideration of it the following rules must be observed:
1. That although a man may have two dom-icils for some purposes, he can have one only for the purpose of succession.
2. That the original domicil, or forum orig-inis, as it is called, is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil. A man cannot be considered as a vagabond, or a person without any domicil; for the -domicil of origin is not abandoned until a new one has been intentionally and actually acquired.
3. That in order to acquire a domicil of choice, the fact of residence must be coupled with the intention to abide an indefinite time, or make the place his home. But the shortest residence with such an intention is sufficient. A residence in one place for a great number of years is a violent and continuing proof of the animus manendi; yet if it clearly otherwise appear that such residence was without such intention, it would be of itself insufficient to constitute such domicil. 2
4. That the burden of proof lies on him who asserts a change of domicil.
0. That the domicil of origin easily reverts, and that it requires fewer circumstances to constitute domicil in a native subject or citizen than to impress the national character on one who is originally of another character. The acquired domicil, however, must be finally abandoned before the domicil of origin can revert.
G. A fugitive from his country on account of civil war still retains his domicil, unless he shows an intention of a total abandonment of his country by the acquisition of a new domicil of choice. Nor will the confiscation [996]*996oí his property by the new government, in the case of a revolution effected after civil conflict — nor the attainder of his person — of themselves, put an end to his domicil of origin. If he elect to adhere to the old sovereign or government, looking forward with hopes of its re-establishment, his domicil of origin is not necessarily abandoned by such election. Allegiance to the existing government, or the exercise of political rights, constitute no part of the definition of domicil. These facts may nevertheless be of great importance in judging of the intention. Consequently, adherence to the king of Great Britain in our Revolutionary War, although it might have caused the forfeiture of the life or property of an American citizen, was not, of itself, an abandonment of his domicil. The estates of those persons who fled from England with the Stuarts and died in France, were administered by the French courts according to the law of England as their domicil.
Keeping in view these principles, you will Inquire whether Mr. Aspden ever acquire^ a new domicil of choice. It is admitted that he left Philadelphia, his domicil of origin, in 1776 and went to England, where — with the exception of two or three years spent in the United States and in journeys on the continent of Europe for health or amusement — he lived until his death in 1824'. The actual habitaney being thus clear, the question then depends on intention. Did he go to England with the intention of making it his home? If not, did he at any time while there, change ’ his' intention so that the animus manendi concurred with the act of habitaney, so as to constitute a change of domicil? The leading fact that he spent the greater part of his life in England , and died there, raises a violent presumption that his intention corresponded with his acts. But as I have before said, in questions of succession even forty-eight years spent in a foreign country may possibly be accounted for, and the inference drawn from length of time rebutted.
(THE COURT then gave a detailed history of the evidence, essentially as the reporter has presented it in his statement of the case.)
Without expressing any opinion on Mr.
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GRIER, Circuit Justice.
Domicil is a word which we have adopted from the Roman or civil law, but which it has been considered so difficult to define with precision and accuracy, that an eminent writer (Bynkershoek) on the subject was unwilling to hazard a definition, and therein has been commended by a learned English judge (Lord Alvanley, 5 Yes. 750) for his wisdom.
The Roman codes described domicil as follows: “In whatever place an individual has set up his household gods and made the chief seat of his affairs and interest; from which, without some special avocation he has no intention of departing; from which when he has departed he is considered to be from home; and to -which, when he has returned, he is considered to have returned home. In this place there is no doubt whatever he has his domicil.” Quoted in Phillim. Dom. 11.
It would tend rather to confuse than to elucidate the subject, to notice the many other attempts at definition of this word, and to attempt to point out their several merits or defects. It may be correctly said, however, that no one word is more nearly synonymous with the word “domicil,” than our word “home.” The definition given by the late Judge Rush of this city (Guier v. O’Daniel, 1 Bin. 349. note), which has received the approbation of an English writer (Phillimore) on this subject, combines, it is probable, accuracy with brevity beyond any other. He defines it “a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain for an unlimited time.”
Two things, says Judge Story (Confl. Laws, § 44), must concur to constitute domicil. First: Residence. Secondly: The intention of making it the home of the party. There must be the fact and the intent, and in many cases actual residence is not indispensable to retain a domicil after it is acquired, but it is retained animo solo, by the mere intention not to change it. or adopt another. If therefore a person leave his home for temporary purposes, but with an intention to return to it, this change of place is not, in law, a change of domicil.
There are few subjects presented to courts for their decision which are surrounded with so many practical difficulties as questions of domicil. The residence is often of an equivocal nature: the intention extremely obscure, and has to be gathered from acts and declarations oftentimes conflicting and contradictory. It is probable, however, that there is not a case to be found in all the books which presents more difficulties arising from this cause than the one before us. The testimony fills an 8vo. volume of nearly 900 pages. You have the whole history of the life of Mathias Aspden. all that he did. much that he said, and much more that he has written. Indeed it would seem, that being a man of much leisure he had spent a great part of his life in writing documents which bear — some indirectly, and many directly — upon the very question which you are called on to decide. And with an obliquity of genius rarely exceeded, he has enveloped it in so much contradiction and confusion and obscurity that it will require your utmost attention and the vigorous exercise of all your powers to solve the question.
On the first point submitted to you there is no doubt. The domicil of origin of Mr. Aspden was Philadelphia, in the then British province of North America.
The next question will be: Did the testator ever change this domicil, and acquire another; —a domicil of choice as distinguished from his domicil of origin? And this is the great question in the case.
In the consideration of it the following rules must be observed:
1. That although a man may have two dom-icils for some purposes, he can have one only for the purpose of succession.
2. That the original domicil, or forum orig-inis, as it is called, is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil. A man cannot be considered as a vagabond, or a person without any domicil; for the -domicil of origin is not abandoned until a new one has been intentionally and actually acquired.
3. That in order to acquire a domicil of choice, the fact of residence must be coupled with the intention to abide an indefinite time, or make the place his home. But the shortest residence with such an intention is sufficient. A residence in one place for a great number of years is a violent and continuing proof of the animus manendi; yet if it clearly otherwise appear that such residence was without such intention, it would be of itself insufficient to constitute such domicil. 2
4. That the burden of proof lies on him who asserts a change of domicil.
0. That the domicil of origin easily reverts, and that it requires fewer circumstances to constitute domicil in a native subject or citizen than to impress the national character on one who is originally of another character. The acquired domicil, however, must be finally abandoned before the domicil of origin can revert.
G. A fugitive from his country on account of civil war still retains his domicil, unless he shows an intention of a total abandonment of his country by the acquisition of a new domicil of choice. Nor will the confiscation [996]*996oí his property by the new government, in the case of a revolution effected after civil conflict — nor the attainder of his person — of themselves, put an end to his domicil of origin. If he elect to adhere to the old sovereign or government, looking forward with hopes of its re-establishment, his domicil of origin is not necessarily abandoned by such election. Allegiance to the existing government, or the exercise of political rights, constitute no part of the definition of domicil. These facts may nevertheless be of great importance in judging of the intention. Consequently, adherence to the king of Great Britain in our Revolutionary War, although it might have caused the forfeiture of the life or property of an American citizen, was not, of itself, an abandonment of his domicil. The estates of those persons who fled from England with the Stuarts and died in France, were administered by the French courts according to the law of England as their domicil.
Keeping in view these principles, you will Inquire whether Mr. Aspden ever acquire^ a new domicil of choice. It is admitted that he left Philadelphia, his domicil of origin, in 1776 and went to England, where — with the exception of two or three years spent in the United States and in journeys on the continent of Europe for health or amusement — he lived until his death in 1824'. The actual habitaney being thus clear, the question then depends on intention. Did he go to England with the intention of making it his home? If not, did he at any time while there, change ’ his' intention so that the animus manendi concurred with the act of habitaney, so as to constitute a change of domicil? The leading fact that he spent the greater part of his life in England , and died there, raises a violent presumption that his intention corresponded with his acts. But as I have before said, in questions of succession even forty-eight years spent in a foreign country may possibly be accounted for, and the inference drawn from length of time rebutted.
(THE COURT then gave a detailed history of the evidence, essentially as the reporter has presented it in his statement of the case.)
Without expressing any opinion on Mr. Asp-den’s intention, I may say that the testimony is full of contradictions: and would afford clear ground for a verdict either way, if the testimony on the opposite ^ide be left out of view. As it is, the question is susceptible of much doubt.
Previous to the testator’s return to England in 17S5. there is no sufficient evidence, I think, of an intention to make England his home. Between 1785 and 1791, when he returned a second time to Philadelphia, there are declarations both ways. How far, on the one side, they may be accounted for as made by the suggestion of Mr. Douglass and Mr. Galloway, his counsel in England, to gain a certain end there; or how far, on the other, they may have been prompted by a hope of obtaining a return of his property here, you will judge for yourselves. After he obtained his pardon here and compensation in England, his heart appears to have been set on getting his attainder reversed and his property here restored; and the hope, it appears, never forsook him. Did it tend to keep the animus re-vertendi always alike in his breast? Does his reporting himself as an “alien” in England, and his styling himself “The Right Honorable Mathias Aspden of Philadelphia,” shew that he considered himself an American? Or were such designations resorted to, only for the purpose of evading a tax on his dividends in England?
In fine, without wishing to express any opinion on the merits of the question, I may remark, that the biography of the testator, exhibits him as a man who led an unhappy and discontented life. Dove of money his ruling passion, without ties of family or friendship, he fled to England to save his personal property from confiscation, and thereby lost his real property here. Notwithstanding his political principles made him prefer his English allegiance in the War of the Revolution, and though he was extremely vexed by the treatment which he had received from our legislature, he still retained a strong attachment for his native land When in England he was absent from the associations and companions of his youth, and ever planning his return. When he returns he finds every thing changed. The friends of his youth have been removed by death: New men have grown up and are at the head of affairs. Every thing has been moving forward, while he alone has stood still. He fails to meet the respect and attention to which he fancies that his wealth entitles him. He becomes sour and discontented, and returns to England to inflict on chancellors and parliaments the endless memorials which he had lately found ineffectual on legislatures and congresses. Time, instead of assuaging the sense of his grievances, seems only to add to their weight and number: his hopes of remuneration from Republican honour or royal generosity, became at last a monomania: he spends his time in writing memoirs and memorials contradictory and unintelligible, to annoy his contemporaries and puzzle posterity, and indites a will in a few lines, whose meaning, after twenty years of litigation yet remains to be settled. A wandering hypochondriack in search of health, he spends his time in vibrating between two continents, is occupied throughout his life in accumulating wealth for unknown heirs, and finally dies without a friend to soothe his pillow or follow him to the grave! Whether he died an Englishman or an American, it is for you, gentlemen, to decide.
The jury having been out for twenty-four hours, found a verdict in favour of the American domicil at each of the dates mentioned in the issues.
A few days afterwards a motion, was made-by the plaintiff for a new trial, which was refused by the court, who expressed their satisfaction with the finding of the jury.