#### *John A. Bradley et al.*ads. *Jane Lowry.*

1. The validity of a testamentary disposition of personality, depends exclusively upon the laws of the country where the testator was domiciled at the time of his death.

2. A mere relinquishment of actual residence is no abandonment of domi-cil, if there is no intention to change it; as where a man leaves home for temporary purposes, as for a voyage, for foreign travel, for health or pleasure, or business of a temporary nature. In all such cases, there is *animus revertendi.*

3. Abandonment of a man’s domicil, however deliberate, is no destruction of it, unless he shall have acquired a new one. From the necessity of the case, the last residence, although intentionally and permanently forsaken, must still be regarded as his domicil. But the acquisition oí a new domicil, which is much more a question of fact than of law, will be credited on far less evidence than would otherwise be required.

4. Where one has abandoned his domicil with the avowed intention of not returning, and of living in another place, a very short residence will suffice to create a new domicil, and the force of residence, as evidence of *2domicil, is increased by the length of time it has continued, but time alone is not conclusive.

5. The true basis and foundation of domicil is the intention, the *quo ani-*mo, of the residence.

6. The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil.

7. J. M. L. made and duly executed his will on the 5th of May, 1836, bequeathing his whole estate, except a small portion to his wife, to his illegitimate children ; and having first made sale of all his property, except his slaves, removed with them, during the fall of that year, to the State of Alabama. He left this State with the avowed intention of not returning, and of going to the West to live. In Alabama, he hired out his slaves, and in. May, 1837, died, at a house where he had taken lodgings as a boarder. It did not appear from the testimony, where the testator was, between his emigration into the State and the time of his death.

8. It was *held,*that as there was no evidence where the testator was in the interval, he must be presumed to have been where he was found at the time of his death, and that, *prima Jade,*he was domiciled at that place.

9. Also, that this presumption was not rebutted from the fact of the testator’s former residence in South 'Carolina, it having been shew n that he had intentionally and permanently abandoned that — and that as the proof was that the testator might be expected to remain in Alabama, unless called elsewhere by some particular circumstance, he was domiciled in that State at the time of his death.

10. Also, that the will of J. M. L. as to his personality, was not avoided by the Act of 1795, (5 Slat, at Large, 271,) there being nothing shewn in the common law, as prevailing in Alabama, to impair its validity, nor any Statute suggested to this effect.

11. Although the testator had left his wife behind him, yet as her residence had not been her husband’s, but that of her son-in-law, this did not determine his domicil.

12. The rule, that the place where a married man’s family resides, is generally to be deemed his domicil, may be controlled by circumstances.

13. The Act of 1795 is remedial, and should be construed so as to suppress the mischief contemplated by it.

14. Thus, where the testator, while an inhabitant of this State, had given to the defendant, who had married his illegitimate daughter, a negro girl, and had also, indirectly, transferred to him a tract of land by an advance of money as a purchase of it, so that in effect the land was the thing purchased by the one party, and gratuitously accepted by the other — these gifts were construed to be for the benefit and advancement of tfestator’s daughter. And, also, as coming within the true intent of the Statute, if exceeding, at *3the time they were made, one fourth of the clear value of the donor’s estate.

15. In construing this statute, where there is a plurality of gifts, the property first given should be valued at the time of the gift, and compared with-the nett value of the entire estate of the donor at that time, (the property given included,) and the gift is to be held void for so much as the property given may have exceeded in value one fourth ofthe whole. If the first gift should fall short of one fourth, it is valid. But when a second gift is made, the subject of the first donation should be brought down and added to the second ; and these two are to be valued at the time of the second gift, and compared with the nett value of the whole estate of the donor at that time, as before described, and the second gift will be void for so much as it, with the prior gift, shall exceed in value the proportion described in the Statute. And this process should be repeated as to each succeeding donation which may be made.

16. As it regarded the slave given, it was held, that even if the gift were void under the statute, the property being given again by the will was good; as a party having two titles, one good and the other bad, may claim under the title most advantageous to himself.

17. As the foreign domicil of the testator could have no effect on real property, the gift of the land was held void, if, when made, it exceeded one fourth of the donor’s estate' — the excess not being made good by the will, but remaining as if never given.

18. Supposing the land to have exceeded one fourth of the whole estate owned by the donor at the time it was given, estimating both the land and the residue at that time, (which is the proper time of valuation,) could after accessions to the donor’s property, left by him at the time of his death, be taken into account, for the purpose of supporting the gift *1*Also whether, supposing the land to have exceeded one fourth of the estate of the donor, the donee should account for the excess, or whether it should not be taken off by the process of partition ? Opinion reserved on these questions.

*Before*Dunkin, Ch. *at*Chester, *June*■Term, 1842.

James M. Lowry, by his will, executed on the 5th of May, 1836, devised and bequeathed as follows:

“ I, James M. Lowry, of the district of Chester, and State of South Carolina, do make and ordain the following disposition of my property, to be my last will and testament, viz:

“ 1st. I direct all my just debts to be paid.

“ 2nd; I will and bequeath unto my wife JaneLowry, all the kitchen furniture, one good bed, bedding and bedstead, *4one pair of fire dogs, one pair of tongs, one fire shovel, one wire fender, one half dozen sitting chairs, and one chest of drawers.

“ 3rd. I will and bequeath unto John A. Bradley and his wife Louisa Bradley, and their heirs, the negro girl Eliza 5 now in their possession.

“ 4th. I will and bequeath unto the said John A. Bradley and his wife Louisa, all the rest and residue of my property, both real and personal, to them and their heirs forever. It is my intention to bequeath every thing of which I may be possessed, or to which I may have any right. It is not my intention to die intestate as to any part of my estate.

“ 5th. The bequest in the fourth clause made, is made on this condition, and with this intention, to wit: that the said John A. Bradley and his wife Louisa, shall deliver over one half in value to James Jackson Lowry, a lad whom I have raised, and who is now living with me, of the property contained in the fourth clause, or account to him, the said James Jackson Lowry, upon his attaining the age of twenty-one years, for the same; and out of the one half of the said bequest in said fourth clause, to maintain and educate the said James Jackson Lowry; but if the said James should die before he attains the age of twenty one, then all the property in the 4th clause mentioned, is to be the absolute property of the said John A. Bradley and the said Louisa, and their heirs forever.

“6th. I nominate and appoint John A. Bradley and Samuel M’Aliley, executors of this my last will and testament, and I do fully empower and authorize them or either of them, should but one of them qualify, to sell at public or private sale, any part or all of the property bequeathed in the fourth clause, should they deem it necessary and prudent so to do. I also empower them to appoint any two disinterested persons to appraise and value my estate. I hereby revoke all former wills by me made, and declare this to be my last will and testament.”

The bill was filed by Jane Lowry, the widow of the testator, and states that she, with Samuel Lowmy, the father of testator, were his only heirs at law7 — that Louisa Bradley, the wife of the defendant, and James Jackson Lowry, are the illegitimate children of the testator, and *5prays for an acconntofthe administration of John A. Bradley, as well as a partition of three fourths of the whole estate, both real and personal.

The case was heard before his Honor Chancellor Dun-kin, at Chester, June Term, 1842, 'from whose decree it will be fully understood.

Dunkin, Ch. It is important, first, to consider where James M. Lowry (the testator) was domiciled at the time ■ of his death. •

Domicil is defined to be “the place where one lives, in opposition to that where he resides for a *time.”'*— Lieber's *Eric. Am. “Domicil."*

In Story’s Conflict of Laws, 44, several rules are suggested as having been adopted and settled by the courts in prosecuting this inquiry. Domicil is there said to be of three kinds, viz; by birth, by choice, or by operation of law. The place of his birth is said to be his domicil, if, at that time, it be the domicil of his parents' — so the place where a married man’s family resides, is generally to be deemed his domicil. *Bemfide*vs. *Johnson,*3 Ves. 148, (or 198.)

But a man has a right to change his domicil. He may, therefore, remove to another place with an intention to make it his permanent residence, and this place then becomes his domicil. But the mere intention to abandon the original domicil and acquire a new domicil, is not sufficient.

In the well considered case of *Sommerville*vs. *Sommerville,*5 Ves. 750, it was held that the domicil once acquired remains until clearly abandoned and another taken. The original domicil is not gone, until a new one has been actually acquired, *facto et animo.*

The testator died in the Spring of 1837. Until November or December, 1836, it is not questioned that his domi-cil was in this State. ‘If he was not born in South Carolina, he emigrated from Ireland to this country at an early age. He was married and settled here. In this country he acquired all his property, his habits, friends and con-nexions ; and all the links that attach him to society are found here. “ If” says the Lord Chancellor in *Bemfide*vs. *6Johnson, “ you add to that, that he had no other fixed residence, upon an establishment of his own, you answer the question, where is his domicil.”

The domicil being originally established in South Carolina, until December, 1836, it is incumbent on those wl)o would prove a change of domicil, not merely to shew that he intended to abandon South Carolina, but that he had established a new domicil elsewhere.

The testimony is vague and indefinite, perhaps necessarily so. It seems in keeping with the condition of the party’s mind, at the period when he spoke of his intention as to his future conduct and movements. He told Mr. Wylie that he could not live with his wife, and that he was going to the West to live. Notwithstanding such declaration, made, perhaps, under the excitemi nt of the moment, the law would still presume that he had not abandoned his wife and his home, until he had evinced a fixed determination by establishing his home elsewhere.

He went to Alabama, did not establish himself in any residence, seemed undetermined whether to sell or hire out his negroes, (which seems to have been all the tangible property he then had,)’ and in May following, died at the house of a gentleman in the neighborhood of Blakely, Alabama.

On this testimony the Court w7ould feel some hesitation in declaring that Lowry had abandoned his domicil in South Carolina. Many persons have gone to the West with the same indefinite notion of improving their condition, and having prudently looked about them before making a new establishment, have been well satisfied to return to their original homes. But abandonment is not enough. On what part of the testimony can it be assumed that this mere sojourner, hiring out his negroes to cut wood, having-no establishment of his own, but dying, a stranger, at the house of a stranger, a few months 'after leaving his original home, had become a permanent resident, and acquired a domicil in the State of Alabama *%*

But on this point no testimony is so strong as the acts of the defendant. He had married the daughter of Lowry. To him he had bequeathed his estate, and made him the executor of his will.

*7He probably possessed his entire confidence, and none knew his intentions so well as the defendant. There is every reason to suppose, that immediately on the death of Lowry he acted under the advice of counsel. It was stated at the bar, that a professional gentleman, now deceased, was the adviser in all his proceedings in relation to this estate.

The will of the testator bears date, 5th May, 1836. He is there described as of Chester district, in the State of South Carolina. On the 16th of October, 1837, the defendant propounded the will for probate, before the Ordinary of Chester District, and on the 1st December, 1837, he returned an Inventory to the Ordinary's office, of “ the estate of James M. Lowry, late of the District of Chester, deceased and in his Inventory he /returns several negroes, which he identifies as being then “ in Perry County, Alabama, and will be sold there 1st January, 1838.”

The defendant never proved the will in Alabama ; but, as he states in his answer, he took out letters of administration in that State, sold the property there situated, and returned the proceeds in his account rendered to the Ordinary of Chester district. In December, 1839, he purchased from Samuel Lowry, (the father of the deceased,) for the sum of seven hundred dollars, an assignment of his interest in his son’s estate, whose interest depended entirely on the fact, that the testator was domiciled in South Carolina.

On the 13th May, 1840, this bill was filed, directly impeaching the will, as made in violation of-the Act of 1795. The answer is filed on the 20th April, 1841. In the meantime the application of the defendant to have the will proved in solemn form, before the Ordinary of Chester, was refused, on the ground that the provisions of the will were obnoxious to the declarations of the statute. The defendant appealed to the Court of Common Pleas, and on 2d April, 1841, the presiding Judge sustained the grounds of appeal, holding that although the Ordinary was fully warranted in his construction of the Act of 1795, yet, that the will, vesting the entire legal estate in the executor, should have been admitted to probate, and that it should *8be left to the Court of Equity to carry into effect the provisions of the statute.

At no stage of these proceedings had the defendant agitated the question of domicil.

In the answer to this bill, various objections are suggested to defeat or restrict the claims of the complainant, but in no part of the answer is the suggestion made, that the domicil of the testator had been changed, although that fact would have been probably conclusive on the rights of the parties. On the contrary, all the proceedings of the defendant, as narrated circumstantially in the answer, were conducted on the assumption that the domicil of the testator was in the State of South Carolina.

At the hearing of the cause on the 28th June, 1842, it was for the first time moved, that the defendant have leave to amend his defence, by pleading specially that the testator had removed from this State, and was at the time of his decease domiciled in Alabama.

In *John Burden*vs. McElmoyle, 1 Bailey Eq. Rep. 375, after answer filed, the defendant was permitted *to*amend, by relying on an account stated, and the statute of limitations. But the cause had been already continued, and the Chancellor said “ the Court was always reluctant to shut out any light, or to deprive a party of any just or legal de-fence.” It may be remarked, that this defence was ultimately .sustained by the Court of Appeals.

In delivering the judgment of the Court, Judge *Nott*remarks that *“*he did not think that allowing the answer to be amended in this case, was a very regular proceeding; and he could readily conceive that such a practice, if too liberally indulged, might open the door to great fraud and perjury.” But the Court concluded that the regulation of the pleadings was so much a matter of discretion with the Chancellor, that they would not readily interfere, unless in some case of very palpable injustice.

Concurring fully in the general inexpediency of permit-tingsuch irregularity, the Court was unwilling, at the moment of the hearing, to allow the defendant to present a new and substantially inconsistent issue. He had, notwithstanding, all the advantage of the defence.

*9But the Court was of opinion, from the testimony adduced, that the original inference of the defendant and his counsel, was well taken, and that the, distribution of the. real and personal estate of the testator, must be governed, by the laws, and administered by the tribunals, of the State of South Carolina.

By the Act of 1795, 2 Brev. 68, it is declared that any. gift, legacy or devise, in trust or by direct conveyance, by a married man, having lawfql children living, for the use and benefit of a woman with whom he lives in adultery, or of his bastard child or children, of any larger or greater proportion of the clear value of his estate, real or personal, after payment of his debts, than one fourth part thereof, “ shall be null and void, for so much of the amoqnt or. value thereof, as shall or may exceed such fourth part of his real and personal estate.”.

Louisa Bradley, the wife o,f the. defendant, and James. Jackson Lowry, were illegitimate children of the testator, James M. Lowry. By his vvill, he bequeaths to his wife some Iritchen furniture, one good bed, and some other articles of inconsiderable value. To the defendant and his wife he bequeathed a negro.girl Eliza, then in their possession - — the. rest and residue of his estate, real and personal,■ is devised and bequeathed to the defendant and his wife. It fs declared, however., that as to one moiety, the estate is to be held in trust for James J. Lowry, if he. attains twenty-one years, if not to the defendant and his wife absolutely.

Some question was made whether the slave Eliza was held under the will, or by a presumed' parol gift on the part of James M. Lowry, but in the view taken by the Court, this inquiry is unimportant. In either case it musf; be regarded as a gift from the father to his illegitimate child.

In August, 1832, a tract of land was sold by the sheriff of Chester district, under executions against James M. Lowry. It was bid oif at the request of Lowry, by James Pagan, for $1,200. Lowry paid to the sheriff two hundred dollars. S.ometime afterwards, Pagan directed the sheriff to transfer the bid, and make the title to Samuel Lowry, Jr, SamueJ Lowry, Jr. paid to the sheriff the balance of the purchase money, and took his conveyance. In June, *101835, James Bl. Lowry gave to Samuel Lowry, Jr. his note for one thousand dollars, (which was afterwards paid,) and Samuel Lowry, by request of James, conveyed the premises to the defendant, who was at that time the husband of his (Lowry’s) daughter.

On the part of the complainant, it is insisted that this land constitutes part of the estate of James M. Lowry, while the defendant relies on the conveyance from Samuel Lowry, Jr., and the accompanying circumstances, as vesting in him an indefeasible title.

Certainly the general rule is as stated, viz: that if a man purchase an estate, and the conveyance is taken in the name of another, the trust of the legal estate results to the man who advances the purchase money. Sugden Vend, p. 2, 134. But this equitable presumption may be rebutted by parol evidence, to prove the purchaser’s intention, that the person to whom the conveyance was made should take beneficially.

No parol evidence was offered of the intention in this case. But it may be very wrell inferred from the circumstances, that it was the intention of the purchaser to confer a benefit on his daughter. • -

The conveyance to the husband may be regarded as a provision for his wife; and it is well settled that if a father purchase in the name of a child, although illegitimate, it will not be deemed a resulting trust for the father, but a gift or advancement for the child. Sugden, 140.

There is no ground for supposing that a donation was intended to the defendant, except as the husband of the donor’s daughter. The conveyance to the defendant was made in June, 1835. The possession was not changed, but Lowry continued to reside on the premises as exclusive owner, until he left the State in December, 1836. Under all the circumstances, the Court would be constrained to infer, that the gift was intended for the benefit of the daughter, or that it was a mere arrangement to change the title of the property, and that a trust resulted to Lowry himself. In either alternative the consequence is the same.

The Court can hardly regard the other small matters which went into the possession of the defendant on his marriage with Lowry’s daughter, and which are consumed *11by the use, as coming within the provisions of the Statute.

The remarks of the Court in *McCaw*vs. *Blewett,*2 McCord C. R. 103, may be applied by analogy, both in reference to the object of this law and the circumstances of this case.

It remains only to declare, that in the judgment of the Court, the deed of June, 1835, and so much of the will of the testator as bequeaths to the defendant and his wife the negro girl Eliza, and the residue of the testator’s estate, are null and void for so much, as the amount or value of the property exceeded one-fourth part of the clear value of the testator’s real and personal estate, after the payment of his debts. It is ordered and decreed, that an account be taken of the estate of the testator and of the defendant’s administration — that the commissioner inquire and report whether it would be for the interest of the parties, that the real estate of the testator should be sold for the purpose of partition, with leave to . report any special .matter — any final order being deferred until the hearing of the report in relation to the estate and the accounts of the defendant.

The defendants appealed, on the following grounds.

1. Because the testator, James M. Lowry, having previously removed with all his property to Alabama, was not at the time of his death an inhabitant of this State, but of the State of Alabama, and by the laws of that State, the last will of the testator was legal and valid, and should be carried into effect.

2. Because by the true construction of the will, according to the laws of this State, the defendants are entitled to five-eighths of the estate.

3. Because neither the negro Eliza nor the tract of land formed any part of the estate of the testator, nor was there any evidence that the purchase money of the land was given to the defendant, John A. Bradley, in trust for any one.

Mr. Gregg,, for the appellant.

There is no fixed or definite period of time requisite to create a domicil.

The residence to create it may be short or long, according to circumstances.

*12It depends on the actual or presumed intention of the party.

There must he intention and act, to effect a change of domicial; 1 Bin. 351, note.

The 8th rule laid down by Judge Story, for ascertaining the domicil of a person, is “ If a person has actually removed to another place, with an intention of remaining théré for an indefinite time, and as a place of present domi-cil, notwithstanding he may entertain 'a floating intention to return at some future period.” Story lion. Laws, 45.

“ His mode of living is not material, whether on rent, at lodgings, or in the house of a friend.” 1 Bin. 351, note ; 4 Cow. Rep. '516, note; per 'Rush, J. in *Guierv*s. *O'Daniel,*reported in 1 Bin. 351, note.

“ Domicil may 'bé defined to be a residence at a particular place, accompanied with positive o'r presumptive proof of continuing it an unlimited time.” Same, 352 ; per Prest. Rush;

In the case óf the Venus, 8 Cranch, 279, Judge Washington, who delivered the opinion of the Court, says, “ If it sufficiently appear, that the intention of removing was to make a permanent settlement, or for an indefinite time, the right Of dom'icil is acquired by a residence even of a -few days; this is One of the rules of the British Courts, ■and it appears to be perfectly reasonable.”

In *Munroe*vs. *Douglass,*;5 Mad. Rep. 405, it 'was held, 'that a domicil is not to he defeated *animo merely,*but *ani-mo et facto,*and necessarily remains until a 'subsequent domicil be acquired, unless the party die *in itinere*to'wards an intended domicil. Prom which it would seem that a former domicil may be abandoned, even before a subsequent domicil has been acquired.

It was also held in the same case, “that a residence in India, for the purpose of following a'proféssion there, in the service Of the East India Company, creates a new do-micil.”

And that without any regard to the circumstance of the person’s owning real estate.

In *Somerville*vs. *Somerville,*5 Ves. 785, the Master of the Rolls says, *“*In ihe late cases, the question has been whether the first domicil was abandoned; and where, at *13the time of the death, the sole domicil was; but here, the question is, which of two acknowledged domicils shall preponderate; or rather, which is the domicil according to which the succession to the personal estate shall be regulated.”

The intéstate had lived about one half of the year in Scotland, and one half in London.

The question in this case is, whether Lowry had abandoned his residence in Chester district, and taken up his residence in Alabama!

The point in this case is not the same with the point in that case.

The third rule laid down by Lord Alvanley> is “ The original domicil, or as it is called, the *forum*onginis, or the domicil of origin, is to prevail until the party has not only acquired another, but has manifested and'carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil.”

Now Lord Somerville never abandoned his residence in Scotland, any more than his residence in London.

In such case, the original residence or domicil was allowed to prevail.

But Lowry had actually abandoned his former residence, afid taken up his residence in Alabama.

Lord Alvanley also sanctions this distinction, upon contemporary domicils. “In the case of a gentleman or nobleman generally, the domicil is the mansion house in the country •; that of a merchant, is his residence in town.”

So that if Lord Somerville had been a merchant, his domicil might have been decided to be in London, notwithstanding his original domicil.

In *Tidsioell*vs. Bowyer, 7 Simons, 64, (9 Con. E. C. R. 430,) leave Was given to file a supplemental answer, to state the fact as to domicil; upon the ground that the defendant had taken an erroneous view as to the law of domicil.

J. A. Alston, contra.

*Ouria, per*Johnston, Ch.

We-are of opinion, that the will in this case must be supported. It has been long ago settled, that the validity of a testamentary disposition of *14personalty, depends exclusively upon the laws of the country where the testator was domiciled at the time of his death. If Mr. Lowry had acquired a domicil in Alabama when he died, the will is good; for it is conceded, that its validity is not effected by the common law, which prevails there; and no statute of that State, impairing it, has been suggested. We think he was domiciled in Alabama at his death. It appears from the evidence, that he had disagreed with his wife, that they had separated, that she had gone to live in the family of her son-in-law; and that he declared they could no longer live together ; that he broke up his establishment, made sale of all his property but his slaves, and removed with them from this State, in the fell of 1836, declaring that he was going to the West to live, and that he would never return to this country. He proceeded to Alabama, where he employed his negroes in cutting wood ; and in the May following died, at a house where he was boarding, near the town of Blakeley. There can be little doubt that his design, when he left this State, was to abandon his domicil here. He left no trace of his original settlement 'and residence behind him ; and he emigrated with a declared intention never to return. He entered another State, With avowed intentions of a permanent settlement there. It is net doubted, that the mere relinquishment of actual residence, is no abandonment of domicil, if there is no intention to change it; as Where a man leaves his home for temporary purposes, as for a voyage, for foreign travel, for health or pleasure, or business of a temporary nature. In all such cases, there is an *animus rever-tendi.*But here, there was a deliberate, intentional and actual abandonment of the domicil in South Carolina, with a declaration that it was made with an intention never to resume it. Nor is there any doubt, that a man’s abandonment of his domicil, however deliberate, is no destruction of it, unless he shall have acquired a new one. From the necessity of the case, the last residence, although intentionally and permanently forsaken, must still be regarded as his domicil. But the acquisition of a new domicil, which is much more a question of fact than of law, will be credited on far less evidence, when the former one has been abandoned, than would otherwise be required.

*15It is said, (Story’s conflict of Laws, ch. 3, sec. 46,) that if a person of full age removes to another place, with an intention to make it his permanent residence, *(animo movendi,)*it becomes, instantaneously, his place of domicil. Mr. Lowry entered the State of Alabama with an avowed intention that he would not return to South Carolina, but that he had come to live in Alabama. Under such circumstances, a very short residence will suffice to create a new domicil. Sir John Nicholl says, (in his very instructive judgment in *Stanley*vs. Bernes, 2 Hagg. 373—5 Eccles. Rep. 171,) the force of residence, as evidence of domi-cil, is increased by the length of time during which it has continued; but, he adds, time alone is not conclusive, for where is the line to be drawn *1*Will the residence of a month, or a year, or five years, or fifty years, be conclusive As a criterion, therefore, to ascertain domicil, another principle is laid down in the authorities quoted, as well as prac-tise : — it depends upon the intention, upon the *quo*animo: that is the true basis and foundation of domicil. President Rush, (in *Guier*vs. *O'Daniel,*1 Bin. 349, note,) says there is no fixed period of time necessary to create domicil. It may be acquired after the shortest residence, under certain circumstances; under others, the longest residence may be insufficient for the purpose.

But was there any residence in Alabama *%*The testator came to that State in the fall, and remained until May, when he died. It is true he did not buy a plantation, and settle upon it. Neither did he open a house of his own. He put his negroes to a particular employment, or hired them out; and in May we find him boarding in the house where he died- But, says the learned judge, in the case of *Guier*vs. O'Daniel, already quoted, on a question of domicil, the mode of living is not material; whether on rent, at lodgings, or in the house of a friend. The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil. It is not, says he, by any particular act, that a domicil, generally speaking, is acquired ; but by a train of conduct, manifesting that the country in which he died was the place of his choice, and to all appearance, of his intended residence. Some reliance is placed upon the fact that there is no evidence where the *16testator wa.s between his immigration into the State and the time of his death. It is possible he was transient in the mean time. I am not s.ure, however, that a fixed abode is. essential to. a domicil. Domicil, says a high authority, is, properly speaking, the place, where one has fixed the centre of his business; (Encyc. Mod. Art. Dpmicil;) and this definition is the only one that will include seme peculiar clases of population in all countries. But as there is no. evidence were the testator was in the interval, are we no,t authorized to presume he was where he was fpund ip May *1*Suppose nothing had been heard of him between his leaving this State and the time of his death. At that time, we find him at lodgings. A person’s being at a place, s,ays Lord Thur-low, (in *Bruce*vs. *Bruce,*2 Bos. and Pul, 230, note,) is *prima facie*evidence that he is domiciled at that place. The actual place where he is, says Lord Rosslyn, (in *Bemfide*vs. *Johnstone,*3 Ves. 200,) is, *prima,*facie, to a great many purposes, his domicil; and, says Sir John Micholl, (in *Stanley vs. Bernes,*before quoted,) *primo^ facie,*he is domiciled where he is resident. That js to say, if we had npver been apprised that the testator had before been elsewhere domiciled, we should be bound to consider him domiciled in Alabama, from the mere fact of finding him residing there. The fact of a former residence in this State, cannot be allowed to rebut this presumptiqn, it having been shewn that he had intentionally and permanently abandoned that. There is one test suggested in *Bemfide v*s. *Johnstone,*which may be applied here with confidence. The place where one resides, says the Lord Chancellor, is his domicil; unless you shew that is not the place where he would be, if there was. no particular circumstance to, determine his position in some other place, at that time. Does not the proof in this case shew that the testator might be expected to remain in Alabama, unless called elsewhere by some particular circumstance'l

I will conclude what I have to say on this point, by meeting one more objection. The testator left his wife behind him. It is said, (Story’s Confl. ch. 3, sec. *46,)*where a married man’s family resides, is, generally, to be deemed his domicil. But it is subjoined — it may be controlled by circumstances ; for if it is a place of temporary *17establishment for his family, or for transient objects, it will be otherwise. Mrs. Lowry’s residence had not been her husband’s. She was living apart from him, in the family of her son-in-law. The conclusion is, that the will is not avoided by the statute of 3795, (5 Coop. Stat. 271.)

But there is another branch of this case which remains to be considered. The slave Eliza and the land were given while Mr. Lowry was an inhabitant of this State.

The statute before referred to enacts that “ if any person, who is an inhabitant oí this State, or who hath any estate therein, shall have already begotten, or shall hereafter beget, any bastard child, or shall live in adultery with a woman, the said person having a wife or lawful children of his own, living; and shall give, or settle, or convey, either in trust or by direct conveyance, by deed of gift, legacy, devise, or by any other way or means whatever, for the use and benefit of the said woman with whom he lives in adultery, or of his bastard child or children, any larger or greater porportion of the real, clear value of his estate, real or personal, after payment of his debts, than one fourth part thereof; such deed of gift, conveyance, legacy, or devise, made or to be made, shall be, and is hereby declared to be, null and void for so much of the amount or value thereof, as shall or may exceed such fourth part of his real and personal estate.” I concur with the Chancellor, that substantially the negro and the land were given to Mrs. Bradley. I regard the statute as remedial; and I conceive that it should be so construed as to suppress the mischief contemplated by it. It would be_ a fraudulent evasion of its intention to allow an.adulterer to advance his mistress or his natural children, more than one fourth of the nett value of his estate, by any subterfuge whatever. We are to look at the substance and design of the gift, and not at the mere form. We cannot for a moment suppose, that the slave was given to Mr. Bradley as a stranger. No doubt the motive and intention was to advance and benefit his wife. The same may be said of the transaction respecting the land; and notwithstanding the form of it was not a direct transfer of the land itself, but an advance of money, as a purchase of it, the land was the thing purchased by the one party, and gratuitously received by the *18other. Both these transfers, that of the slave as well as of the land, come within the true intent of the statute, if they exceeded, at thé time they were made, one fourth of the clear value of the donor’s estate. By the construction which I put upon the statute, where there is a plurality of gifts, the property first given should he valued at the time of the gift, and compared with the nett value of the entire estate of the donor at that time, (the property given included,) and the gift is to he held void for so much as the property given may have exceeded in value one fourth of the whole. If the first gift should fall short of one fourth, it is valid. But when a second gift is made, the subject of the first donation should he brought down and added to the second; and these two are to be valued at the time of the second gift, and compared with the nett value of the whole «state of the donor at that time, as before described; and the second gift will be void for so much as it with the prior gift shall exceed in value the proportion described in the statute. And this process should be repeated as to each succeeding donation which may be made. The Court cannot know, in this case, whether the slave Eliza and the land, separately or conjointly, exceeded the statutory proportion; and if it were necessary, would be obliged to direct an inquiry as to both of them. But it appears to be unnecessary to make any inquiry as to the value of Eliza, because, conceding that the parol gift of her were wholly void under the Act, she is given again by the will; and that we have pronounced to be valid; and as a party having two titles, one good and the other bad, may claim under the title most advantageous to himself, the defendants here may take under the will. The land, however, stands upon a different footing. The foreign domicil of the testator can have no effect upon real property ; and if the land, when given, exceeded one fourth of the donor’s estate, the excess is not made good by the will, but remains as if never given, An inquiry as to the comparative value of the land is necessary, and will be directed to be made by the commissioner.

There are two points upon which I wish to reserve my opinion at present, as they may more properly be made on the circuit, after the commissioner shall have reported. *19One is, supposing the land to have exceeded one fourth of the whole estate owned by the donor at the time it was given, estimating both the land and the residue at that time, (which is the proper time of valuation,) whether after accessions to the donor’s property, left by him at his death, may not be taken into account, for the purpose of supporting the gift *1*The commissioner should therefore take a separate account of after acquisitions, in order to enable the Court to decide this question. The other is, supposing the land to exceed one fourth of the estate of the donor, whether the donee should account for the excess, or whether it should not be taken off by the process of partition *%*I incline to the latter opinion ; as it seems to result from the Act, that the title of the donee is good for a part and void for the residue, as if the title were still in the donor for the latter ; which seems to infer that there is a community of title in the donee and the kindred of the donor, according to their respective interests.

The circuit decree will be modified according to this opinion; and the bill will be retained, to allow the plaintiff to go into the inquiry indicated, if she desires to do so and it is decreed accordingly.

Johnson, Ch., concurred.

Harper, Ch., absent.