School Directors v. James

The opinion of the Court was delivered by Gibson, C. J. As this case has no precedent, we must decide it on grounds of reason and analogy; and in order to do so, it is necessary to premise certain principles about which there is no dispute. The domicil of an infant is the domicil of his father, during the father’s lifetime, or of his mother during her widowhood,- but not after her subsequent marriage; the domicil of her widowhood continuing in that event to be the domicil of her child. A husband cannot properly be said to stand in the relation of a parent to his w'ife’s children by a previous marriage, where they have means of support which are independent of the mother, in whose place he stands for the performance of her personal duties, because a mother is not bound to support her impotent children so long as they are of ability to support themselves. Neither can they derive the domicil of a subsequent husband from her, because her new domicil is itself a derivative one, and a consequence of [571] the merger of her civil existence. Her domicil is his, because she has become a part of him; but the same thing cannot be said of her children. Having no personal existence for civil purposes, she can impart no right or capacity which depends on a state of civil existence; and the domicil of her children continues, after a second marriage, to be what it was before it. Thus, we see that when the defendant was appointed guardian of these minor children, their domicil was in the township of East Bradford, where they resided with their mother, if that were important, even after her second marriage; and as the situs of their moveable property attended the domicil of their persons, i't was taxable only there. So far there is no dispute. But_as a father, or a mother, sui juris, may change the domicil of the child by changing the domicil of the family, provided the change be induced for a disinterested motive — not, for instance, to change the rule of succession in the event of the child’s death — the question is whether a guardian or tutor stands in the place of a parent, or has. the same power; and it is still a vexed one with the civilians, who are equally divided in regard to it. Those who maintain the affirmative of it, are corroborated by the code Civile, which, though of positive enactment, is supposed to be founded, in this particular, on the established principles of civil jurisprudence; while those who maintain the negative have, on their side, among others, the authoritative name of Pothier. But the former are supported by the approbation of Mr Burge, the learned British commentator on the Conflict of Laws, as well as by the opinion of Sir William Grant, in Pottinger v. Wightman, (3 Merivale 67), and by the decisions of some of the American courts; which would be amply sufficient to turn the scale of authority, were it not for the powerful doubt thrown in on the other side by Mr Justice Story. “ Notwithstanding,” says he, “ this weight of authority, which, however, with one exception, is applied solely to the case of parents, or of a' surviving parent, there is much reason to ques- ; tion the principle on which the decision (in Pottinger v. Wightman) is founded, when it is obviously connected with a change; of succession to the property of the child. In the case of a : change of domicil by the guardian, not being a parent, it is extremely difficult to find any reasonable principle on which it can be maintained that he can, by any change of domicil, change the right of succession to the minors’ property.” Conflict of Laws, 2d ed. § 506, in notes. And there are reasons for this doubt which seem to bear it out. No infant, who has a parent sui juris, can in the nature of things, have a separate domicil. This springs from the status of marriage, which give rise to the institution of families, the foundation of all the domestic happiness and virtue which is to be found in the world. The nurture and education of the offspring make it indispensable that they be brought up in the bosom, and as a part of their parents’ family; without which. [572] tbe father could not perform' the duties he owes them, or receive from them the service that belongs to him. In every community, therefore, they are an integrant part of the domestic economy; and the family continues, for a time, to have a local habitation and a name, after its surviving parent’s death. . The parents’ domicil, therefore, is consequently and unavoidably the domicil of the child. But a ward is not naturally or necessarily a part of his guardian’s family; and though the guardian may appoint the place of the ward’s residence, it may be, and . usually is, a place distinct from his own. When an infant has no parent, the law remits him to his domicil of origin, or to the last, domicil of his surviving pai’ent; and why should this natural and wholesome relation be disturbed by the coming in of a guardian, when a change of the infant’s domicil is not necessary to the accomplish- , ment of any one purpose of the guardianship ? The appointment of a new residence may be necessary for purposes of education or health; but such a residence being essentially temporary, was held, in Cutts v. Haskins, (9 Mass. R. 543), insufficient to constitute a domicil. But, granting for the moment that a guardian may, for some purposes, change his ward’s domicil, yet if he may Jnot exercise the power purposely to disappoint those who would [take the property by a particular rule of succession, (and nearly | Jail agree that even a parent cannot,) how can he be allowed to ifexercise it so as obviously and unavoidably to injure the ward (himself? It is true, that what has been said on the subject has (had regard to a change of national domicil, and that here we have to do with a supposed change, by implication of law, from one township to another in the same county; but the power of the guardian to do injury can be no greater in the one case than it is in the other. The very end and purpose of his office is projection; and I take it, that there is no imaginable case in which the law makes it an instrument of injury by implication. Where, ' indeed, he acts fairly and within the scope of his authority, the ward must bear the consequences, because he must bear those psks that are incident to the management of his affairs; but that is a different thing from burtheiiing him with a loss as a mere technical consequence of the relation. Buf a guardian cannot convert his ward’s money into land, or his land into money, except at his own risk; and, for a reason'more imperative than any to be found (in a case of mere conversion, he must not be allowed to burthen his ward with a certainty of loss by subjecting his property to taxation for purposes in which the ward has not an interest. It is said that these minors may receive an equivalent for their contributions to the school fund by participating in the instruction which it was intended to dispense; but the district in which their parents resided, has elected to reject both the benefits and the burthens of it; and to say they are bound by the election made by the inhabitants of their guardian’s district, is to assume the [573] ground in dispute — that their domicil has been changed. A guardian has indeed power over his ward’s person and residence; but it follows not that the ward’s domicil must attend that of his guardian, for there is nothing in a state of pupilage which requires it to do so. We are of opinion, then, that the domicil of a ward is not necessarily the domicil of his guardian; and that the personal property of these children was not taxable by the borough of West Chester. Judgment affirmed,