(Superior court of Cincinnati.)

(Special term.)

#### LOUISE H. GREENE v. LEOPOLD BURKHARDT.

To create legal domicile there must be actual residence combined with intent to remain.

Dempsey., J.

The question involved in this case is whether under the facts and circumstances as developed in the evidence, the plaintiff effected a change of his domicile from Ohio to California, and in the view that I have taken of the evidence it is not material whether the time be 1895 or 1899.

It is admitted that up to 1895, and even up to 1897, the plaintiff’s domicile, actual and legal, was in Hamilton county, Ohio, although in 1895 he had actually gone to California and intended eventually to settle there. Now, domicile involves two elements, intent and fact, the fact actually of residence combined with the ' intent to remain, and in Mr. Greene’s case these two elements concurred as to Hamilton county in 1895.

In 1895 Mr. Greene conceived the intention of changing to California. That may be conceded from the evidence. But to effect a change of domicile more is required than mere intent, for the rule is unquestioned that the old domicile continues until a new one is shown to be acquired (Smith v. Dalton, 1 C. S. C. R., at P- 153; Abbot’s Trial Ev., 105), and a new domicile is not acquired until, as to it also, there be concurrence of fact and intent.

Now, was there in fact a change of Mr. Greene’s place and abode from Ohio to California? The burden is on him to prove the change. Abbot’s Trial Ev., 105. The usual evidence as to the fact of residence is as to the abode of the person, and the place where he “lives” is taken to be his domicile until facts adduced show the contrary. * * * If a person was moving to and fro, the question where he had his *home,*where *he had established his family,*if he had one, or where his strongest domestic ties are fixed, may determine in which of the several places he “lived,” .within the meaning of the rule, even though he declared himself a resident of his place of business. Abbot’s Trial Ev., 103-104. Now, apply these tests to the evidence of Mr. Greene, and it is perfectly manifest that while his intention may have been to transfer his state allegiance he did not accomplish it until after the marriage of his daughter, for whose sake Mrs. Greene remained here. All the various circumstances at various hotels, the purchase of one dwelling house and the renting of another, the refurnishing thereof, the storage of the furniture, the tax return on personal property, *238the registration for purposes of suffrage, show to my mind almost conclusively that the residence in fact was not altered, and was not to be altered, until after the daughter was married. As a consequence, at the time of the judgment complained of herein, Mr. Greene had not abandoned his residence or domicile in Hamilton county, Ohio, and was consequently subject to process served in the wav it was in this case.

Maurice L. Galvin, for plaintiff; Albert Bettinger, contra.

As to the claim made that because Mr. Greene was away and did not actually get the summons until too late to fight the case, or appeal from the judgment, there being no fraud of any kind alleged, I know of no principle that will allow chancery to interfere.

The judgment will be for the defendant.