#### JOEL E. HORNE & AL. *vs.*JAMES HORNE & AL.

If a testator knows what he is *doing and to whom he is giving*his property, his mental capacity is sufficient to enable him to make a will.

The domicil of origin of a person continues until he acquires another, by actual removing to another country with the intention of remaining in the latter altogether or for an indefinite period.

Two things must concur to constitute a domicil; first, residence, and, secondly, the intention to make it a home.

And if these two concur, it makes no difference how short his residence may be in the new domicil.

The case of *Plummer*v. *Brandon,*5 Ire. Eq. 190, cited and approved.

Appeal from the Superior Court of Law of Anson County, at the Spring Term, 1848, his Honor Judge Bailey presiding.

This was an issue of *devisavit vel non*upon a paper writing, offered for probate by the plaintiffs, as the last will and testament of Joel Horne, deceased, in which paper writing, the said plaintiffs were named as executors and only legatees. Three objections were raised by the defendants, to-wit:

1st. That the supposed testator was not of sufficient capacity to make a will, for want of a sound disposing mind and memory.

*1002ndly. That if not actually incapable of making a will, he was unquestionably a man of very feeble intellect, and executed his paper writing under influence and through fraud and circumvention.

Srdly. That the supposed testator was domiciled in Chesterfield District, South Carolina, and not in Anson County, North Carolina, at the time of executing said paper writing; and that the paper writing was not executed according to the laws of the former State.

Upon the first point, one of the subscribing witnesses testified fully to his belief of the sanity of the supposed testator at the time of signing the said paper writing, and the proof of *the factum*and subscription by two witnesses, according to the laws of North Carolina, was full, although the second subscribing witness said that hé had no distinct opinion whether the supposed testator was sane or not — he having but little means of judging, having never seen him until called upon to witness his will, though he discovered nothing to make him doubt his sanity. Other witnesses, on the part of the plaintiffs, testified to their belief of his capacity to make a will, though all concurred in the belief that he was a man of weak understanding. One witness testified that three or four years before, the testator had expressed a purpose to give his properly to the plaintiffs, who arc, in fact, the only legatees in the will; and several of the witnesses spoke of his intention to give a part of his property to the plaintiff, Joel E. Horne, together with others, and this at different times. On the part of the defendants, four witnesses proved, that he was, in their judgment, incapable of making a will; and of these were his attending physician, and two persons, who had for some time resided in the same house with him. It was in proof, that he had 1G or 17 slaves: That one of them had great influence over him: That he had many relations equally near with the plaintiffs, to several of whom lie had ex*101pressed liis intention of giving property, as well as *to*the plaintiff, Joel E. Horne, and to one witness his intention to give his property to other relations, as near as Joel E. without mentioning him at all, and at another time a determination to make no will at all. The supposed testator was a native of Chesterfield District, South Carolina, where he had resided all his life, until a few weeks before his death, upon the part of the same plantation, on which he bad been born, and where both his parents had lived and died and were buried : that he lived in a very uncomfortable way among his negroes, without any white family, having never married ; that his farm was small and poor, and his slaves were so unproductive as to render it necessary for him to borrow money, which was furnished him to some extent by Joel E. Horne: that when 36 years of age, he fell into a very bad state of bodily health, and was advised by his physician to seek a place where he would be more comfortable : that accordingly, upon the invitation of Mrs. Worley, who lived in North Carolina, near the line, as was the residence of the testator in South Carolina, he went to her house, where he remained a few weeks and became discontented, but while there, proposed to young Mr. Worley, her son, to bring his slaves to Mrs. Worley’s, work them upon the farm, and make some division between them of the profits; but young Worley declined the arrangement, saying, that his negroes were unmanageable, and he did not wish to have any thing to do with them. He was then removed to Nancy Horne’s in South Carolina, she being the widow of his brother, Thomas Horne, who had several children, and while there was kindly treated, for which he expressed himself grateful, as well as for that at Mrs. Worley’s, and to one or two witnesses expressed his intention of rewarding them in his will, although at the time of making his will three or four weeks afterwards, he expressed himself dissatisfied with them, and determined to give *102them nothing. Within a few days after his coming to Mrs. Nancy Plorne’s, he was removed, together with his slaves, by the plaintiff, J. E. Horne, to the plaintiff, Wm. Horne’s, in Anson County, North Carolina, early in December. Before leaving South Carolina the last time, he observed to a witness, that his place was too poor for him to live on : that he had rented Wm. Horne’s old place in Anson County N. C., where he was going to make a crop, and Joel E. Horne was going to superintend his hands ; to another witness he said, he was going to stay awhile, but would return again ; ,to the subscribing witnesses to the will, he said, he was about to rent, or had rented, Wm. Horne’s old place, and Joel E. Horne was to superintend his affairs. The witness was not clear whether he said he had rented or was about to rent. On the 14th of December the will was executed, and after that day, no witness deposed to having seen him, though it is believed he died about Christmas following the making of the will, but whether at William Horne’s residence, or at the place spoken of, as having been rented by him, ,did not appear, nor did it appear whether he or any of his slaves had ever been on the William Horne old place. His will was proven in common form at January term, 1841, being the next term of that Court after his death, which occurred on the second Monday of January. There were but two subscribing witnesses to the will, and it was proved that by the law of South Carolina, three were necessary to a will, either of realty or personalty.

Plis Honor charged the jury, that, if they believed the evidence touching the paper writing, it was duly proved according to the laws of North Carolina, and they should find it to be the last will and testament of the testator, Joel Horne, deceased, unless one of the three objections, raised by the defendants, existed in fact, the first of which was that the supposed testator, Joel Horne, was not of sound and disposing mind and memory.

*103Upon this point, the Court informed the jury, that it was in evidence that Joel Horne was always a man of weak intellect, and especially during his last illness: That weakness of mind was not itself a valid objection, as the law did not undertake to weigh the size of men’s intellects : that it did not require that he should be a wise man : that, if he was between the wise and foolish sort, although he inclined rather to the foolish, he was, in law. capable of making a last will and testament: that to enable a man to make a disposition of his property by last will and testament, he must do it with understanding and reason ; and that if the jury should be satisfied that, at the time of executing the paper writing, Joel Horne had not understanding and reason, they should find a verdict against the will: that if the supposed testator knew what he was. doing at the time of making the supposed will, and that he was giving'his property to the plaintiffs, and that they would bo entitled to it, provided the forms of the law were complied with ; then they should find in favor of the will. As to the second objection, the Court instructed the jury, that, if they should be satisfied, that tb.e plaintiffs or either of them, or his negro woman Hannah had had such control and dominion over the supposed testator, and had exercised that control and dominion il> legally and fradulently, in the disposition which he had made of his property, then the paper writing offered for probate would not be his will, but the will of those exercising sueh improper influence, and, if they should be satisfied, that that was true, in this case-, they should find against the will. But, although the jury should be satisfied that there-had been- importunity and persuasion on the part of the- plaintiffs, or either of them, or the negro woman Hannah, and the supposed testator had yielded to such importunity and persuasion because he was convinced it was night, it would not render the will invalid. But if the importunity was so great that the testator was *104too weak to resist its influence, and his free agency was taken away, then they should find against the will.

As to the third objection, the Court instructed the jur}% that a man’s residence *'prima facie*was his domicil, that wherever his residence was, there was his home, his domicil, *prima facie,*but not being conclusive, it was susceptible of explanation ; that residence and domicil were not convertible terms : that a man might have his residence at one place, and his domicil at another ; and that the domicil of origin continues until it is changed for another, that the testator’s domicil of origin was in South Carolina, and it continued still to be in South Carolina, unless it was proved that he bad changed it; that if he had left South Carolina for this State for a temporary special purpose, not with a view of making it his home, but of returning to South Carolina, then he had not lost his original domicil, and of course, had not acquired a new one here, and if they should so find, then they should render a verdict against the plaintiffs, because the will had not been proved according to the laws of South Carolina, but if they should be satisfied from the evidence, that the testator had abandoned his home in South Carolina, and come to Anson Count}7 in this State, for the purpose of settling there either permanently or for an indefinite time, although he had not consummated that purpose, but was prevented from doing so by death’s overtaking him, his domicil would he in this State.

The defendants’ counsel then requested the Court to charge the jury, that if the supposed testator was so deficient in memory, as not to remember who his relations were, as appeared must be the case from his speaking but a few days before of giving them his property and now not mentioning them at all, he was incapable of making a will. The Court refused so to charge, but fold the jury, that if he understood what he was doing when he made the will, so as to know he was giving his property to the plaintiffs, *105he had such a sound and disposing mind as would enabl© him, in law, to make a will. A verdict having been returned in favor of the plaintiffs, and a rule for a new trial-having been discharged, the defendants appealed to the1 Supreme Court.

*Iredell,*for the plaintiffs.

*Strange,*for the defendants.

Nash, J.

This was an issue of *devisavit vel non*to try the validity of a paper writing, purporting to be the last will and testament of Joel Horne,- deceased.

Three objections were made by the defendants, the' caveators. First, that the deceased had not mental capacity. Secondly, if he had, his mind was so weak that he was easily influenced, and executed the paper under' influence and through fraud and circumvention : And thirdly, that the supposed testator was, at the time he executed the paper, a citizen of South Carolina, and had' his domicil there, and that the paper writing was witnessed by only two subscribing witnesses, whereas by the laws of that State, three were necessary.

The defendants’ counsel then requested the Court to charge the jury, that if the supposed testator was so deficient in memory, as not to remember who his relations were, as appeared must be the case, from his speaking but a few days before,, of giving them- his property, and now not mentioning them at all, he was incapable of making a will. The Court refused so to charge, but told the jury, that if he understood what he was doing when he made the will, so as to know that he was giving his. property to the plaintiffs, he had such a sound and dis* posing mind as would enable him, in law, to make a will.

In his charge-, the presiding. Judge went fully into the evidence, upon each question raised in the causey.and & *106was fairly left to the jury. Upon the questions of law, embraced in the first and second objections, although his Honor might have been more explicit, we think he was sufficiently so, and that the charge, in those particulars, was substantially correct. As to the mental capacity of Joel Horne, his language is, “that if the supposed testator knew what he was doing, at the time of making the said supposed will, and that he was giving his property to the plaintiffs, and that they would be entitled to it, provided the forms of the law were complied with, they should find in favor of the will.” We do not see that the defendants have any right to complain of what is here laid down. If the deceased had the portion of mental capacity, here required, he had such a mind and memory, as the law required, to enable him to dispose of his property by will. As to undue influence, or the papers being obtained from the deceased by fraud and imposition, there was no evidence whatever to sustain the objection and his Honor ought so to have informed the jury.

The instruction, asked for by the counsel of the defendants, was not such as the Court could give. It required the Judge to pronounce an opinion upon a matter of fact —to-wit: “that a few days before making his will, the deceased spoke of giving his property to his relations, and now not mentioning them at all.” Whether he had so spoken was a fact, to which the jury alone could respond. We think, therefore, the instruction was properly refused. Where instructions are prayed, if granted, they must be put as the counsel requires, otherwise they are not what he demanded.

We concur with his Honor in his instructions to the jury, upon the third objection. It is unquestionably true, that if Joel Horne was, at the time the paper writing was executed, still domiciliated in South Carolina, it would not be a good will in North Carolina. For it had pot the requisite number of witnesses, there being'but *107two and the laws of South Carolina requiring three. It was important then to ascertain whether, under the circumstances detailed by the witnesses, the deceased had acquired a domicil in this State, and thereby lost that of origin. On the part of the plaintiffs it was contended, such was the fact, and on that of the defendants that the origin of birth still continued. After stating to the jury the facts bearing on this point, the Court left the intent, with which Joel Horne had come to this State, as a matter of fact for their inquiry. Upon the law he instructed them, that South Carolina, being the domicil of origin to the deceased, it continued so until he had acquired another; it could not be lost until then. And, to enable them to come to a proper conclusion, he instructed them, that if the deceased had left South Caroliua and cometo this State with a view to a temporary purpose, and with the intent, when that purpose was served, to return to his native State, he had acquired no domicil here, but if he had come to this State with the intent to live permanently in it, he had acquired a domicil here, and lost it in South Carolina, and the will was executed with the forms entitling it to probate here. To this charge we see no just exception. The domicil of a testator must govern the form, in which a will is executed.

The term domicil, in its ordinary and familiar use, means the place where a person lives, or has his home ; in a large sense, it is where he has his true, fixed, and permanent home, to which, when absent from it, he intends to return, and from which he has no present purpose to remove. Two things, then, must concur to constitute a domicil — first, residence, and second, the intention to make it a home — the fact and the intent. In this case Joel Horne had a domicil in South Carolina — a domicil of origin, which continued up to a short period before his death, and up to that time, unless he had lost it, by acquiring a new one in this State. This was the *108point to be decided by the jury, and to it their attention was drawn by the Court. There was one circumstance, which, we think, was nearly conclusive upon the question — it is, that the deceased himself considered North Carolina his domicil. In his will he styles himself “Joel Horne,of Anson County, North Carolina.” The law governing the question was plainly and correctly stated to .them. The plaintiffs relied much upon the fact, that, at the time the deceased executed the paper writing, his residence was in North Carolina. They were instructed that residence did not constitute a domicil, though it was *prima facie*evidence of it; thus guarding them from a mistake, as to that fact. In concluding his charge upon the question of domicil, his Honor instructed the jury, “if the deceased had come to Anson County in this State, for the purpose of settling there permanently or for an indefinite time, his domicil would be there, *although prevented from doing so by death.”*There is some confusion in the latter clause. It is obvious however, from the context of the whole sentence, his Honor did not mean, if he had been prevented by death from reaching this State ; if he had died in *transitu.*In that case his domicil of origin would still have continued, for he would not have acquired a new one, and he had already told the jury that a domicil could not be lost until another was acquired. And in the same sentence, he had stated to them, if the deceased had abandoned his home in South Carolina and *had come to*Anson, &c. We presume the intention of the charge in this part was to instruct the jury, that the length of time, during which the deceased enjoyed his new home, was not material to the question of the new acquisition, In this view, the charge was correct. Residence for however long a time it may be continued, cannot constitute a domicil, without the intention of permanently making it a home, nor can the shortness of time, in which the pew home is enjoyed, defeat the acquisition when ac*109companied with the intention, for in the latter there would be the *factum, et animus.*These views are sustained by the cases of *De Bonneville and Be Bonneville,*6 Eng. Eq. Rep. 502. *Craige and Lewin,*7th Do., 560. *Plummer and Brandon,*5th Ire. Eq. 190, and *Story's*conflict of laws, ch. 3.

Per Curiam. Judgment affirmed.