Johnson v. Copeland's Adm'r

STONE, J. The assignments of error in this case present the question of the domicile of Sarah M. Copeland, the intestate, at the time of-her death. The appellant contends, that she had her domicile in the State of Tenuessee; and her estate being personalty, it follows, if this be so, that the distribution must be according to the laws of that State. The probate court of Limestone ruled, that she was domiciled in Alabama, and ordered distribution in accordance with his construction of the statutes of this State. The most material question in this case hinges on this inquiry. William Copeland, the father of intestate, died intestate, a resident citizen of said Limestone county, State of Alabama, leaving a widow, and three heirs-at-law, of whom the said Sarah M. was one; she being then an infant under three years old. The other heirs-at-law were by a different mother. At the distribution of said William Copeland’s estate, certain slaves were allotted to said Sarah M., which passed into the hands of Mr. Wimberly, who had been, by the probate court of that county, appointed her guardian; and said slaves ever afterwards remained in tlie bands of her said guardian, until the death of the said Sai’ah M., and were controlled by him as such guardian, and -were kept within said county. When said Sarah M. was four or five years old, her mother, the widow- of said Wm. Copeland, intermarried with one Menifee, and soon afterwards removed to the State of Tennessee, in company with her said husband, and carried the said Sarah M. with her; hut the guardian did not consent to such removal. Said Sarah M. remained in Tennessee, writh said Menifee and wife, until she was about eight years old, when she died there — intestate, of course. [526] The slaves, as we have shown, came to her in the distribution of her father’s estate. She left a brother and sister of the half-blood on the father’s side, and two sisters of the half-blood on the mother’s side. In the case of Carlisle v. Tuttle, (30 Ala. 613-623,) speaking of the right of the mother to change the domicile of her infant child, we said : “ Mrs. Tuttle, being the natural mother of the ward, had the right, after the death of the father, and during herwidowhood, to change his domicile; he being at the time under the age of seven years, and there not appearing any fraudulent design to alter the succession upon the infant’s death, and there being no guardianship in this State.” The principle asserted in the foregoing extract, it will be seen, does not necessarily control this case, because it appears from the present record that, before the removal of the said Sarah M. Copeland, her mother had intermarried with a second husband, and a guardian had also been appointed for the infant in this State. It also appears that the Tennessee statute of descents is more favorable to Mrs. Menifee’s line of relationship than the Alabama statute is. A discussion of this subject by Chief-Justice Gibson seems to us to be eminently sound. — See School Directors v. James, 2 Watts & Serg. 568. That eminent jurist said: “ The domicile of an infant is the domicile of his father, during the father’s lifetime, or of his mother during her widowhood, but not after her subsequent marriage; the domicile of her widowhood continuing, in that event, to be the domicile of her child. A husband cannot properly be said to stand in the relation of a parent to his wife’s children by a previous marriage, when they have means of support independent of the mother, in whose place lie stands for the performance of her personal duties, because a mother is not bound to support her infant children, so long as they are of ability to support themselves. Neither can they derive the domicile of a subsequent husband from her, because her new domicile is itself a derivative one, and a consequence of the merger of her civil existence. Her domicile is his, because she has become a part of [527] 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 domicile of her children continues, after a second marriage, to be what it was before it.” Of similar import are the following authorities: Reeve’s Domestic Relations, 298; Rotinger v. Wightman, 3 Merivale, 67. Without indulging in any inquiry into the bonafides of Mr. and Mrs. Menifee, in removing the intestate to another State having other and different rules of descent more favorable to appellants, we adopt the principies declared in the case of School Directors v. James, (supra,) and hold, that the domicile of intestate was not changed by her removal to the State of Tennessee, under the circumstances disclosed in this record. It results from this, that her property must be distributed according to the Alabama statute of descents. — See Cook v. Wimberly, 24 Ala. 487. [3.] The slaves which constitute the bulk of Miss Copeland’s estate, came to her by descent from her father. These the probate court rightly distributed to her brother and sister of the blood of her father. — Code, §§ 1576, 1581; Stallworth v. Stallworth, 29 Ala. 76. The money, which -was the product of the hires of intestate’s slaves, after they had been distributed to her, were not an “ inheritance,” and did not come to her by “ descent, devise, or gift.” As to this sum, section 1576 of the Code requires, that it shall be equally distributed between her brother and three sisters, the children of her father and the children of her mother. On this single question the probate court erred. Reversed and remanded.