Wiggins v. Bethune

29 F. 51, 1886 U.S. App. LEXIS 2421

• Court: U.S. Circuit Court for the District of Eastern Virginia
• Decided: October 2, 1886
• Status: Published

Opinions

Bond, J.

This is a bill filed by the complainant for an account, to which a plea of want of jurisdiction has been interposed. The facts, as they appear from the affidavits filed by the parties, and as they have been stated at bar by the respective counsel, are these: John G. Bethune, who at the time was a citizen of Virginia, having Blind Tom in his keeping, was, on the twenty-fifth day of July, 1870, by a probate court of this state, appointed Tom’s committee, he being found non compos mentis. As such committee, Bethune took Tom from place to place, through the various states of the Union, giving musical entertainments, so that he was seldom in Virginia. Finally John G. Bethune changed his place of residence from Viginia to the city of New York, taking Blind Tom with him, and became a. resident of that state, where he died on the-day of February, 188é. Blind Tom was continued on his travels under care of a brother of John G. Bethune, his former committee. While Blind Tom was thus journeying in the state of North Carolina, James N. Bethune had himself appointed by a county court in Virginia as Tom’s committee. Charity Wiggins, who sues as next friend, is the mother of Blind Tom, and is a citizen of New York. This being the fact, she could not sue, (being a merely nominal party,) unless her son is a citizen of New York also. He is the real party in interest, and the jurisdiction of the court depends upon the fact whether or not Blind Tom, at the last appointment of a committee for him, was still a resident of New York, where he had been a resident with John G. Bethune, his committee, up to and at the time of his death. There can be no doubt, we think, that the residehce of his committee was the residence of Tom. He, non compos, had no ability to change it, and the fact that he was borne away by one who had no legal control over him to another state, away from his mother in New York, who was his natural guardian, cannot be held to change his residence. The fact that he was temporarily in Virginia, under the control of one who merely had physical domination of him, did not make him a resident of that state, and the appointment of a committee for him there, while he was absent in North Carolina, added nothing to the effort to change his domicile. The bill is framed under the view that both Charity Wiggins and her son, Tom, are citizens of New York, while the defendant is a citizen of Virginia, and we think the jurisdictional facts sufficiently appear. The plea is therefore overruled.