The Republican journal., 1909-04-22
The Cunningham Will Case.
Law Court Decides That Cunningham Had
Acquired Domicile in Shanghai.

Clerk of Courts Tileston Wadlin has receiv-
ed from the law court the rescript of the de-
cision in somewhat celebrated case, that con-
cerning the estate of Henry H. Cunningham,
involving about 900. The question at issue
was whether Mr.. Cunningham who at one time
was resident of Belfast, had a, -ired a domi-
cile in Shanghai, China, where he had been en-
gagged in business for many years prior to his
DEATH The rescript sustains the appeal from
the decree of the Waldo county probate court
appointing A. w. Cunningham as administra
tor of the estate of H. H. Cunningham. The
rescript follows:
Augusta C. Mather, ct ais, Appellants VS.. Ed
ward R. Cunningham, ct als Appellees.
Rescript, Spear, j.:
This is an appeal from the decree of the pro-
bate court for Waldo county, dated September
II, 1906, appointing Albert w. Cunningham ad
ministrator of the estate of Henry H. Cunning
ham, deceased, and comes here on report. The
agreed facts show that Henry H. Cunningham
was born in 1888 in Swanville, County of
Waldo, Maine, of parents who were citizens of
the State of Maine and resident and domiciled
in said county and State. His parents con-
tinued to reside in Waldo county, Maine, un-
til 1865, when they removed to Manassas,
Virginia. He resided with his parents s
May 3. 1858, the last three years at Belfast.
In May, 1858, at the age of Is he went to
sea, In 1856 he went to Australia. About
1857 he was for time pilot on the river at
Shanghai, China. He was never married and
at the time of his death his only heirs and next
died at Shanghai, June 10, 1905, leaving an es-
tate of personal property valued at over
$4,000.
He left will in which he undertook to dis
pose of his estate, executed in the presence of
two witnesses. After his death proceedings
were had before the United States consul at
Shanghai, China, for the settlement and dis
tribution of his estate, and the various legatees
have received their distributive shares through
the method usually observed there in the set
tlement and distribution of similar estates.
The appellees, however, deny the right of the
consular court at Shanghai to thus settle and
distribute the estate of the decedent, upon the
ground that he had never acquired domicile
in Shanghai; that his domicie continued during
all the years of his absence to be in Waldo
county; that his will was not executed in ac-
cordance with the laws of Maine, having but
two witnesses; and that his estate should be
administered here as interstate property. Con-
sequently they applied to the probate court for
the county of Waldo for the appointment of
an administrator to settle the estate.
The appointment was made. from the decree
of which the appeal before us was taken.
1t therefore appears that but two issues, one
of fact and one of law, are involved in the de-
termination of this case. Each presents the
same question: Did the decedent have domi-
cile in Shanghai at the date of his death, ~ as
matter of fact, (2) as matter of law. The
burden is upon the appellants to establish the
Trusts, % Ch. Div. 532. We will first proceed
to the issue of fact. Assuming, arguendo that
the decedent could acquire legal domicile in
Shanghai, do the necessary facts appear to
support this conclusion. Domicile may be es-
tablished in different ways, but two Of which
are involved in this case, domicile of origin
and domicile Of choice 1t is conceded that the
| decedent had domicile of origin in Waldo
county. That domicile continued, whatever,
the wanderings of the decedent, until he ac-
quired a new one in some other locality. In
order to establish domicile of choice evidence
of three important facts must appear, Q)
abandonment of domicile of origin, (2) selec
tion of new locus, (3) the animus manendi
Technically proof of (2) and (S) necessarily
established (D. Putting these facts in the
form of definition, Gilman VS.: Gilman, 81
Maine 155 says: "Domicile is said to be the
habitation fixed in any place, without any pres
ent intention of removing therefrom. While
| the term dornicile seems to possess more or less
elasticity there can be but one domicile of tes-
tacy or intestacy. It is the latter sense in
which it will be here treated.
The court is of the opinion that had H. H.
Cunningham resided in England, France or in
any State of the union from the time he left
Belfast until the date of his death, under pre-
cisely the same circumstances that are found
in connection with his residence at Shanghai it
would clearly appear tnat ne nAu acquired
a domicile in either one Of these localities
where he had SO resided. Harvard College ".
Gore, S Pick 1863. The animus ct factum con-
CURED and the formum novum was substituted
for the forum originis.S
The facts being sufficient to establish the
domicile of the decedent upon the soil Of any
foreign country, including that part OF China
not affected by treaty relations, we now come
to q new and more difficult problem. Can an
American under any circumstances. whatever
the facts, acquire, as matter Of law domi-
cile in the province of Shanghai place where