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the mother of the children was her daughter, and had been dead about four years; 'that several years prior to the death of their mother, the mother and the children lived with petitioner, and were wholly supported by the petitioner; that after the death of their mother, the children continued to reside with the petitioner and to be supported by her; that the father, Vance, has not provided for the support of the children since the death of the mother; that at various times since the death of the mother, Vance, the father, has expressed and declared to the petitioner that he was willing that she have the care and custody of the children; that at various times since the death of the mother, Vance had expressed and declared his intention of never reclaiming or taking the custody of the children from the petitioner; that the reputation of J. B. Vance for sobriety, industry, and morality was and is bad, and has been for more than four years last past, and that he spent his earnings and money for liquors, on women, and general dissipation; that up to about one year ago, Vance, the father, resided in Santa Rosa, Sonoma County; that about one year ago he went to San Francisco, and since that time has resided in San Francisco; that after going to San Francisco to reside, he married, and for some time previous to the trial has lived with his wife in San Francisco; that on the twelfth day of October, 1890, Vance came to Santa Rosa, and went to the home of the petitioner, where the children were, and represented to the petitioner that he desired to take the children down town to get some candy, whereupon petitioner consented, and he took the children and went away with them, as the grandmother understood, to take them down town and get them candy; that Vance then took them to San Fran

cisco without the knowledge and consent of the grandmother; that they were in San Francisco at the time these proceedings were commenced, and up to the trial thereof; that petitioner is able to maintain and care for the children.'

"The father then offered testimony showing that his residence had been in San Francisco for the year last past, and was at the time he took the children there, and 'that his present wife, Mrs. J. B. Vance, had means with which to support and care for the children, and was desirous of caring for and supporting them.'

"In view of this evidence, we cannot say that the finding that the father had abandoned the children was not justified. He had left them for years to be supported and cared for by their grandmother, and had at various times declared his intention never to reclaim them. And that he recognized the grandmother's right to their custody will be presumed from the fact that he resorted to fraudulent means to get them away from her. If he had considered that he had a right at any time to take them away, presumably he would have asserted his right boldly, and no misrepresentations or deceit would have been used to accomplish his purpose.

"The general rule is, that 'the residence of the father during his life is the residence of the unmarried minor child.' (Pol. Code, sec. 52, subd. 4.) But this rule does not apply when the child is under the age of fourteen years, and has been abandoned by the father. In such case he forfeits his guardianship of the child, and can no longer claim its custody. (Stats. 1873-74, p. 297.) If, then, these children had been abandoned by their father, as the court below found, their residence was in

Sonoma county, and it was not changed by their surreptitious removal to San Francisco. The questions involved in the case were all questions of fact, which the court below was called upon and had a right to determine (In re Danneker, 67 Cal. 643), and we see no good ground for disturbing its conclusions. We advise that the order be affirmed."

It is generally said that an insane person has a constructive domicile. It would probably be more correct, at least in most cases, to say that the domicile of an insane person cannot be changed, and that such insane person must retain the domicile which he possessed at the time he became insane.

SECTION 16. DOMICILE OF CHOICE.

A domicile of choice is one chosen by the party himself. In order to enable a person to acquire a domicile of choice three things must exist at the same time, (a) the party must be personally present in the place which he chooses as a domicile, (b) he must choose such place as his domicile, and (c) he must be sui juris.

The question of domicile of choice was discussed at some length by the court in the case of In re Capdevielle, the decision in which case was in part as follows:

"There are two questions in this case. First, was the testator Domingo Capdevielle domiciled in England? This is a question of fact to be determined upon affidavits which have been produced by the executor, and which I think we are bound to consider as substantially true; we have no reason to suppose they are otherwise. They state that the testator was

2 H. & C., 985.

born in France, and left that country prior to the year 1807 or 1808 to avoid the conscription. He first went to Spain; from thence to Gibraltar, and in 1830 came to England and commenced the business of a commission agent at Manchester, and continued it until the 6th January, 1859, when he died. He was twice in France during that period and purchased some real property there. I think it is the true and fair inference from the affidavits that during the whole time his mind and intention was to return to France and die there, although he never determined or fixed upon any period when his return should take place, and that he was living in Manchester with the intention of remaining there for an indefinite period; but during all the time he had the hope and expectation and intention of returning to France and there ending his life; and that he always deemed and considered himself to be a Frenchman and not an Englishman.

"The question whether he was domiciled in England depends upon what is the true definition of domicile in regard to testamentary acts. In Story's Conflict of Laws, C. 3, Sec. 46, it is said that 'if a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is to be deemed his place of domicile notwithstanding he may entertain a floating intention to return (to his native country) at some future period.' If this be the true definition of domicile the testator was domiciled in England, for he had removed to Manchester and lived there for twenty-nine years; his intention was to remain there for an indefinite time as his fixed permanent domicile; and although I believe he had always what may be called a floating intention to return to France at a

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future period, yet this, according to the above definition, would not prevent the English domicile. There are also two other definitions of domicile, one in the same work, C. 3, Sec. 43, viz.: 'that place is properly the domicile of a person in which his habitation is fixed, without any present intention of removing therefrom;' the other is in Dr. Phillimore's Book on Domicile, C. 2, Sec. 15, page 13, viz.: 'a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.' If these be correct the domicile of the testator was English. But on the other hand there is a definition of domicile by Lord Wensleydale, in Aikman vs. Aikman, 3 Macq., 877, which, if correct, seems to me to establish that the domicile of the testator was French. It is this: 'Every man's domicile of origin must be presumed to continue until he has acquired another sole domicile by actual residence with the intention of abandoning his domicile of origin. This change must be animo et facto, and the burthen of proof unquestionably lies upon the party who asserts the change.' Now, if this be the correct definition of domicile the testator's domicile was French, for I think the undoubted inference from the affidavits is that he never had the intention of abandoning his French domicile; on the contrary he always desired to retain it; and it may be predicated with absolute certainty that the Attorney-General did not establish the contrary. But it was said that Lord Wensleydale was not to be understood as intending what his words seem to express; but it is to me clear from the case of Moorehouse vs. Lord, 10 H. L., 272, decided last year, that Lord Wensleydale was understood by the noble and learned lords who delivered

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