The Bismarck tribune., 1935-01-28

remains until q new one Is obtained
and that intention to change TIN
domicile must be clear and express
that the change Of legal domicile
IS . grave and serious matter, and
the court should not deem 1t changed
UPON mere critical circumstances
III re Langer Estate, Sc N. d. 793:
ZIG NV s6:.
Again Cites Nuessle
Opinion Of Justice NueSsle.
The appellants challenge the juris-
diction Of the probate court IN Bar
mes county in this matter. The
decedent had homes,eaded and lived
in CaSs county for many years prior
to 1925 at which time he went to the
home Of a son in Barnes county. at
which place there were no children
to bother him and for the purpose
Of being near his wife who was Sc
riously Ill with All incurable malady
and who had been placed in Valley
City hospital. The decedent him.
self was - years OF age and incapaci-
tated physically. Upon going to VAL
ley City the household furniture at
the home was auctioned off and all
personal property was taken tt
Barnes county.
The court held that on all the evil
dence Barnes county must be con-
sidered as the residence.
Anderson VS.. Breitheard, 81 N. D.
TOO: 245 NV 4S3.
Opinion Of Justice Burr.
This Is q mandamus proceeding by
q student at the schools in the
Youngstown school district against
the members Of the school board Of
that district to permit attendance
without payment Of non-residence
fees.
The question in the case turns up
on the construction Of the Section
l343 OF the Supplement to the Com
piled Laws Of 1913.
The court specifically states that
the term residence as used In this
section Of the code Is not similar to
that used in Section II, Compiled
Laws Of 1913, and that the rule set
out in Section IA, Of the Compiled
Laws does not govern a determine
ton Of the section Of the code in
yolved in this case.
Words May BE Synonomous
"The decision in Gardner VS.. Board
Of Education, S Oak. 239; 80 NV 433
might indicate that for school pur-
poses residence and domicile are
synonymous: but the opinion says
distinctly that in this case cited nc
point was made on either side as
to the technical difference between
residence and domicile, and that
residence is used throughout the
record as the synonym Of domicile.
That case turned upon whether OF
not the person so involved was
domiciled in Fargo. It was shown he
was not: that he came to Fargo mere
ly for the purpose of getting the
school privileges for his children.
Hence this case has no value In de-
termining the legislative intent ex-
pressed In the law under consider
ation."
Enderlin vs.. Pontiac, 62 N. D. los:
242 NV 1T.
This is q pauper case in which the
court indicates that sections $500 and
250l Compiled Laws of 1888, whell
they use the term residence, do moi
use that term In the same sense in
which it is used in Section Il, Com
piled Laws Of 1918.
Burke county VS.. Brusven, So N
p. /: PAL NV 81.
This is precisely the same type oi
case as the last and the ruling Is
also the same.
Analysis OF the Law Governing the
Establishment Of Domicile
In the event that the court deter
mines that the word resided" as used
In Section 73 Of the North Dakots
Constitution is synonymous with the
term "domicile," then in accordanc,
with the unquestioned rule Of law
the problem Of establishing the resi-.
dence Of Noodle becomes one o1
showing u) the fact Of the existence
of q physical residence or abode con.
curing with (2) the intention re-
quired by law to make that residence
his domicile.
The following propositions are thu
rules of law governing the determine
ton Of this intention. Under eact
proposition is given the supporting
authorities followed by comments OF
and quotations from these case
where appropriate:
Intention to Establish Domicile .!
Determined from All Surrounding
Facts and Circumstances
Story, Conf. Of Law. Sec. 47
That will be esteemed his domicil|
>. which appears to be the center
Of his affairs"
I'm general, all the circumstance!
Of the particular case should be TAX
en- into consideration in determin
ing the persons intentions" (tt
establish his domicile). 8 rel 543
I'm general terms one may be des
ignated as an inhabitant OF tina
place which constitutes the principa
seat Of his residence, Of his business
pursuits, connections, attachment
and Of his political and municipa
relations" 9 RCL $40.
THE problem (of determining tn
intention to establish q domicue
therefore depends for its solution no
upon Q consideration Of any single
circumstance. but upon all the cir
|cumsta1,ces taken In connection Will
each other. When the principa
element Of residence and intention
Is ambiguous or uncertain, then
becomes necessary, in ascertaininl
domicile, to make . minute inqutr!
into the habits, character, pursuits
social and domestic relations, bust
ness and political affairs, and indeet
the whole history Of the person fron
his youth up, the conclusion depend
ing upon the total weight Of evidenc
and all the various facts and cir
cumstances in favor or against tn
conflicting places Of residence" i
CJ 435.
Graham vs.. Graham, . N. D. 68
81 NV ~ (supra 20).
Nelson vs.. Cass, ~ N. d. 357; IA
NV 537 (supra 20).
Smith vs.. Smith, 7 N. D. 404; Z
NV 783 (supra ~.
Abington VS.. No. BridgeWater,