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SECTION 10.

CHAPTER III.

SITUS OF PERSONS.

DEFINITIONS OF SITUS IN GENERAL.

In general the law governing persons, property, or actions is the situs of such persons, property or actions. In the English and American Encyclopedia of Law1 situs is thus defined:

"Situs means site; location; situation; a place where a thing is. Real property has always a fixed situs; and so, of course, the actual situs of tangible chattels can always be readily determined. But it is obvious that the situs of tangible chattels, such as choses in action, must be conventional. At common law, however, rules have been established which assign a situs or locality to every subject of personal property for the purpose of administration and probate, and there seems to be no reason why these rules should not be extended to cases arising under the recording acts.'

This definition is too narrow in that it is limited in its application to the case of property, while in the contemplation of the law persons and actions have a situs not less than property.

SECTION 11. ACTUAL AND LEGAL SITUS OF PERSONS.

Every person has both an actual situs and a legal situs or domicile. In addition to these, and distinct therefrom, there is the residence and also the citizenship of the person. The question of citizenship has been already discussed under the subjects of constitu1 Vol. XXV, p. 107D.

tional law and international law. The actual situs of a person is the place where he actually is at any given time. More difficulty is to be found in distinguishing between the actual situs or domicile of a person and the residence of such person.

SECTION 12. DOMICILE AND RESIDENCE.

Minor in his "Conflict of Laws," thus distinguishes between domicile and residence:

"It must be observed that domicile is also to be distinguished from a mere residence, of a temporary character, not intended to be permanent. Residence in a State is usually said to be necessary to domicile, but it must be a residence of a permanent, not of a temporary or limited character. When the term 'resident,' or 'residence,' is used in connection with private international law, it is generally used in the sense of domicile, though not always.

"The Virginia case of Long vs. Ryan is a good illustration of the distinction between mere residence and domicile. In that case, a person domiciled in Washington came to Virginia intending to remain there about nine months, until he should complete a contract into which he had entered, proposing afterwards to leave Virginia. His property was attached in Virginia under a statute permitting attachments against 'non-residents,' but the court, notwithstanding his domicile in Washington, held him to be a resident of Virginia, and dismissed the attachment."

SECTION 13. CLASSIFICATION OF DOMICILES.

Two methods of classifying domiciles are in use. As to the extent of the domicile, domiciles are divided into

• Sec. 20.

(a) National domiciles;

(b) Quasi national domiciles, and

(c) Municipal domiciles.

The national domicile of a person is the country in which a person in domiciled. The quasi national domicile of a person is the State in which he is domiciled. The municipal domicile of a person is the city, town, county, or other political subdivision, in which a person is domiciled.

As to the method of acquiring domiciles, domiciles are subdivided into:

(a) Domiciles of origin;

(b) Constructive domiciles, and

(c) Domiciles of choice.

SECTION 14. DOMICILES OF ORIGIN.

A domicile of origin is one assigned to a child at the time of its birth. The domicile of origin of a legitimate child is the domicile of his father at the time of his birth, of an illegitimate child the domicile of his mother, and of a foundling the place where he is found. Domicile of origin is, strictly speaking, one kind of constructive domicile. Greater importance is attached to domiciles of origin than to other species of domicile. It requires more evidence to prove that a domicile of origin has been given up, and such a domicile after being lost may be more easily re-acquired, at least in the case of national domiciles.

SECTION 15. CONSTRUCTIVE DOMICILE.

A constructive domicile is one created by law. Married women, infants and insane persons have domiciles of this character. The strictness of the old rule as to the domicile of married women has been somewhat modified, as is shown by the decision

of the Supreme Court of New York in the case of "Matter of Florance," the decision in which case was in part as follows:

"The whole claim of the plaintiff is based upon the old rule that a woman by marriage acquires the domicile of her husband and changes it with him. It is admitted that a wife may procure a separate domicile for purposes of divorce, but it seems to be claimed that such domicile cannot be procured for any other purpose. The old rule in reference to a married woman's domicile cannot, certainly, prevail in view of the rights which are recognized to be hers by the statutes.

"The property relations between husband and wife have been entirely changed since the rule in question has obtained, and the reasons for the rule no longer exist. The wife is now a distinct legal entity, having in the disposition of her property all the rights, and even more than a husband has ever possessed, and the husband has no control whatever over her movements or her disposition of her property. In the case at bar it appears that in 1875 the petitioner and his wife agreed to separate, she to take their children and maintain them. They did separate, he going to Philadelphia and she living in New York, which had been her home before marriage, and supporting their children from her own means. There is no pretense that the petitioner ever contributed a cent to the support of his wife or their children since 1875, or offered to do so, and the best that he can say in his petition is that he never refused to provide a home for his said wife or her children in the city of Philadelphia. Probably he was never asked to

• 54 Hun., 328.

do so, and, consequently, did not refuse, but he nowhere alleges that he offered to provide a home for his wife and children anywhere, and probably he did not.

"They had agreed to live separate, and she had agreed to support herself and her children. She then, by and with his consent, acquired a domicile in New York, made that her home and that of her children, and certainly if she was enough of a resident to institute divorce proceedings, as is conceded, she is enough of a resident to leave her property to her children and to be protected from the claims of a husband with whom she has not lived for twelve years, and who has not, during that time, either contributed or offered to contribute to her support or to that of their children and who desires now, under a legal fiction, to take away from his own children a portion of their mother's inheritance."

The constructive domicile of a legitimate child is in general that of the father. After the death of the father such domicile will become that of the mother. The domicile of an illegitimate child is that of his mother.

The subject of the constructive domicile of an infant is discussed in the case of "In re Vance," follows:

as

"The principal contention of appellant is, that the court had no jurisdiction of the case, because, at the time the petition was filed, the children were not inhabitants or residents of Sonoma County, and hence that the order was void and should be reversed.

"The evidence on which the order was based was as follows:

"The petitioner introduced evidence showing that • 92 Cal., 195.

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