SECTION 2. which regulate the succession to estates in this country, let us now inquire who are, and who are not, capable of being heirs; premising only this remark, Distribution of that, though the distribution of personal property is personalty governed by everywhere governed exclusively by the lex domicilii, the lex domicilii. so that if a Scotsman (a), e. g., dies intestate, having domicil in England, his personal estate, wherever its actual situs may be, is distributable according to the law of England; yet it is otherwise in relation to real estate, the succession to such property being always exclusively governed by the lex rei sitæ (b). And, first, it is to be observed, that no one can inherit who is not born in lawful wedlock, or in due time after Descent of realty governed by the lex rei sitæ. Heir must be legitimate. LAW OF To acquire a domicil there must be residence and an intention to make it the home of the party. To retain a domicil, actual residence not necessary in all cases. (a) Balfour v. Scott, 6 Bro. P. C. 550; and see Somerville v. Lord Somerville, 5 Ves. 750. thier has truly observed, a person cannot establish a domicil in a place, except it be animo et facto. And in many cases actual residence is not indispensable to retain a domicil, after it is once acquired; but it is retained, animo solo, by the mere intention not to change it, or adopt another. Sometimes it is a matter of great difficulty to decide in what place a person has his domicil. Without speculating upon all the vari (b) Doe d. Birtwhistle v. Vardill, 5 Barn. & Cr. 438; 6 Bli. N. S. 479; Story's Conflict of Laws, ch. xii. §§ 481, 483. So little is to be found in British law-books on the doctrine of Domicil, in a connected form, that I shall take this occasion of condensing into a note some of the principal rules propounded on this subject by Dr. Story, (an ous cases, which may be started eminent American Judge), in his on this subject, the following excellent Commentaries on the rules may be adopted as guides Conflict of Laws.-Two things in cases of most familiar occurmust concur to constitute domi- rence:-1. The place of birth of a cil; first, residence; and, second- person is considered his domicil, ly, intention of making it the home if it is at the time of his birth the of the party. There must be the domicil of his parents. 2. The fact and the intent; for, as Po- domicil of birth of minors con SECTION 2. One born in wedlock, is Scotland before wards. By the law of Scotland, indeed, conforming capable of in heriting lands in that tinues until they have obtained a new domicil. 3. Minors are generally deemed incapable, proprio marte, of changing their domicil during minority, and therefore retain that of their parents; and if the parents change their domicil, that of the infant children follows it; if the father dies, his last domicil is that of the infant children. 4. A married woman follows the domicil of her husband. 5. A widow retains the domicil of her deceased husband, until she obtains another. 6. Prima facie, the place where a person lives is taken to be his domicil, until other facts establish the contrary. 7. Every person of full age having a right to change his domicil, it follows, that, if he removes to another place, with an intention to make it his permanent residence, (animo manendi), it becomes instantaneously his domicil. 8. If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of present domicil, it becomes his domicil, notwithstanding he may entertain a floating intention to return at some future period. 9. The place where a married man's family resides is generally to be deemed his domicil. 10. If a married man has two places of residence at different times of the year, that will be esteemed his domicil which he himself selects, or describes, or deems to be his home, or which appears to be the centre of his affairs, or where he votes or exercises the rights and duties of a citizen. 11. If a man is unmarried, that is generally deemed the place of his domicil where he transacts his business, exercises his profession, or assumes municipal duties or privileges. But, in its application, this rule is subject to some qualifications. 12. Residence, to produce a change of domicil, must be voluntary. 13. A domicil, once acquired, remains until a new one is gained. 14. If a man has acquired a new domicil, different from that of his birth, and he removes from it, with an intention to resume his native domicil, the latter is reacquired, in itinere, for it reverts Rules for de termining the place of domicil Comity of nations cannot descent. SECTION 2. capable of inheriting lands in Scotland; but he cannot inherit lands in England (a); for, although the alter the law of "comity of nations" (b) gives to him the character of legitimacy, with all the rights necessarily consequent upon that character, yet what those rights are respecting English land must be left to the law of England; and the comity is wholly ineffectual to alter, from the moment the other is which they belong. But a differgiven up. The foregoing rules principally relate to changes of domicil from one place to another with in the same country, although many of them are applicable to residence in different countries. In respect to the latter, the following are recognised by the public tribunals as of unquestionable authority. 1. Persons are generally deemed citizens and subjects of the country in which they are born. 2. Foreigners, who reside in a country for permanent or indefinite purposes, animo manendi, are treated universally as inhabitants of that country. 3. A national character, acquired in a foreign country by residence, changes when the party has left the country animo non revertendi; and if he be in itinere to his native country with that intent, his native domicil revives. 4. Ambassadors and other foreign ministers retain their domicil in the country which they represent, and to ent rule generally applies to consuls, and other commercial agents, who are presumed to remain in the country for the purposes of trade, and therefore acquire a domicil there. 5. Children born upon the sea are deemed to belong to, and have their domicil in the country to which their parents belong. From these rules, Dr. Story infers that domicil is of three sorts - domicil by birth, domicil by choice, and domicil by operation of law. The first is the common case of the place of birth, domicilium originis; the second is that which is voluntarily acquired by a party, proprio marte; and the last is consequential, as that of the wife arising from marriage. - Story's Com. on the Conflict of Laws, ch. iii. §§ 44-49. (a) Doe d. Birtwhistle v. Vardill, 5 Barn. & Cr. 438; 6 Bli. N. S. 479. (b) By the " comity of nations," is meant the obligation of in the slightest degree, the rules of inheritance which the law of England has attached to English land (a). And it is important to add, that, if the person claiming to be heir was at the time of his birth illegitimate, according to the law of the country where his parents were domiciled when married, that character seems to be stamped upon him indelibly; so that he cannot inherit lands in Scotland, e. g., although, according to the law of that country, one born there under similar circumstances labours under no such disability (b). SECTION 2. XXIV. But, although one born during wedlock, Presumption of legitimacy. or in due time afterwards, is considered legitimate; yet this is but a presumption:-understanding by presumption, a probable consequence only (for the fact of issue by a particular man is not in its nature capable of direct proof); and, according to modern authorities (c), this presumption may be rebutted by shewing, that, for the husband to have begotten the child, is either physically or morally impossible :-meaning, nations to give effect to foreign laws, when they are not prejudicial to their own rights and interests. See Story's Conflict of Laws, ch. ii. §§ 33-38; Robinson v. Bland, 2 Burr. 1077, 1079; Blanchard v. Russell, 13 Mass. 4 (Amer.) (a) 6 Bli. N. S. 481. (b) Munro v. Saunders, 6 Bli. N. S. 467; and see Patrick v. Shedden, and Strathmore Peerage case, there cited. (c) Banbury Peerage case, Le May be rebutted by shewing that, for the husband to be the father, is either physically or morally impossible. SECTION 2. by physical impossibility, what is at variance with the laws of nature; and, by moral impossibility, that high degree of improbability which leaves no room for doubt. Under the first division may be classed impotency and non-access; and under the second, all those circumstances which can have the effect of raising in the minds of the jury or judges (when exercising the function of a jury) a preponderating presumption that the child is not the issue of the husband (a). This circumstantial evidence (as Lord Eldon remarks) is "nothing more than evidence of those circumstances, which usually accompany facts, from the proved existence of which circumstances, both law and reason in law of AdulterineBastardy. (a) Banbury Peerage case, Le Marchant, pp. 432, 489; Nicolas's Adulterine Bastardy, pp. 458, 522. "The law of Adulterine Bastardy," according to Sir H. Nicolas, " has undergone two important changes, without the intervention of any act of History of the the legislature; and the principle of certainty, upon which it formerly proceeded, and which the great lawyers of past ages considered it sound wisdom to uphold, no longer exists. Until the year 1717, that principle was so rigidly' acted upon, that a child born in wedlock could not be bastardized, unless the parties were separated by a sentence of divorce, by evidence of the husband's impotency, or of his absence from the realm when it was begotten. The next But, as reason and common sense |