In Re Hall's Guardianship

71 S.E.2d 140 (1952)

235 N.C. 697

In re HALL'S GUARDIANSHIP.

No. 749.

Supreme Court of North Carolina.

June 11, 1952.

*143 Falk, Carruthers & Roth, Greensboro, for petitioners appellants.

Barnie P. Jones, Burlington, for respondent appellee.

WINBORNE, Justice.

Exceptions to the judgment, and to the entry of it, assigned as error on this appeal, present for decision one question: Do the facts found by the judge below support the judgment? Culbreth v. Britt, 231 N.C. 76, 56 S.E.2d 15, and cases there cited. See also Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555, and cases cited.

While a similar factual situation does not seem to have been presented to this Court, we hold that in the light of pertinent statutes and decisions of this and other courts, and of general principles of law applicable thereto, the facts found by the judge do support the judgment, and that error is not made to appear.

Provision is made by statute in this State for the appointment of guardians for infants, and the clerks of superior courts within their respective counties have full power to appoint guardians in all cases of infants who reside in such county. G.S. § 33-1. And the word "reside" as used in the statute relating to the appointment of guardians has been construed to mean the domicile of the infant. 25 Am.Jur. p. 22, Guardian and Ward, Sec. 25; 39 C.J.S., Guardian and Ward, § 10, p. 21. Compare Roanoke Rapids v. Patterson, 184 N.C. 135, 113 S.E. 603; Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307; Owens v. Chaplin, 228 N.C. 705, 47 S.E.2d 12.

On the subject of Domicil, The Conflict of Laws, by Joseph H. Beale, Vol. 1, Chapter 2, declares that every person must have a domicile of origin; that this domicile comes into being as soon as the child becomes at birth an independent person; that this domicile is retained until it is changed in accordance with law; and that there can be no change of domicile without an intention to acquire the new dwelling as a home, or as it is often phrased, without animus manendi. Hence "an unemancipated infant, being non sui juris, cannot of his own volition select, acquire, or change his domicile." Thayer v. Thayer, supra [187 N.C. 573, 122 S.E. 308]; Duke v. Johnston, 211 N.C. 171, 189 S.E. 504; In re Blalock, 233 N.C. 493, 64 S.E.2d 848; *144 Allman v. Register, 233 N.C. 531, 64 S.E.2d 861.

The father is the natural guardian of his child. In re TenHoopen, 202 N.C. 223, 162 S.E. 619. And a legitimate child, whose father is alive, takes at birth, and continues during minority, the domicile of his father, following it as it changes. Upon the death of the father his domicile at death continues to be the domicile of his minor child until the domicile of such child is legally changed. Beale on The Conflict of Laws, Vol. 1, pp. 210 and 217. Domicil, Secs. 30.1 and 36.2. Thayer v. Thayer, supra.

Moreover, in this State it is provided by statute, G.S. § 33-3, that in case of the death of the father of an infant, the mother of such child, surviving the father, immediately becomes "the natural guardian of such child to the same extent and in the same manner, plight and condition as the father would be if living"; and that "the mother in such case shall have all the powers, rights and privileges, and be subject to all the duties and obligations of a natural guardian", but that "this shall not be construed as abridging the powers of the courts over minors and their estates and over the appointment of guardians."

And the text writers say that on the death of the father, the domicile of an infant follows that of its mother during her widowhood, and ordinarily may be changed by the mother in changing her own. It is also held that the domicile of an infant will not follow that of its mother after her remarriage, since by remarrying her domicile is again fixed by that of her husband. And "there is, however, authority to the effect that a widow does not, by remarrying, lose her power to change the domicile of her children by a former marriage," and that "she may change their domicile in the same manner as she might have done prior to her remarriage." 17 Am.Jur. 625-628, Domicil, Sections 57, 62, 63. But see Lamar v. Micou, 1884, 112 U.S. 452, 5 S. Ct. 221, 28 L. Ed. 751, rehearing denied, 114 U.S. 218, 5 S. Ct. 857, 29 L. Ed. 94.

In this case, Lamar v. Micou, this headnote epitomizes the opinion of the Court: "The widow of a citizen of one state does not, by marrying again, and taking the infant children of the first husband from that state to live with her at the home of the second husband in another state, change the domicile of the children."

However, the authorities seem to be agreed that on the death of both parents the domicile last derived from the parents, or either of them, continues to be the domicile of the infant, during minority, until it is legally changed. But that a guardian by nature may change the domicile of such infant. And within this rule, a grandfather or grandmother, when next of kin, is a guardian by nature, who may change the infant's domicile after the parents' death; and that "by taking up his residence with his grandfather, or, if the grandfather is dead, with his grandmother, the orphan may in that way acquire the domicile of the grandparent." In Beale on Conflict of Laws, Vol. 1, p. 222, Domicile, Sec. 39.1, it is held that "When both parents of a minor child are dead, and no legal guardian of the person has been appointed, the grandparent, who takes the child to his home and actually stands in loco parentis to the child becomes the natural guardian, and the domicile of the grandparent thereupon becomes the domicile of the child * * *."

However "it would seem that the doctrine of natural guardianship has never been extended to uncle or aunt when they stand as next of kin to the minor." 17 Am. Jur. 627, Domicil, Sec. 64. See also Lamar v. Micou, supra.

Indeed, on the rehearing of the case, Lamar v. Micou, the opinion of the Court expressed in this headnote is pertinent to case in hand: "Infants having a domicile in one state, who after the death of both their parents take up their residence at the home of their paternal grandmother and next of kin in another state, acquire her domicile."

Furthermore, in the case of In re Martin, 185 N.C. 472, 117 S.E. 561, 562, this Court in opinion by Stacy, J., said: "Domicile is a question of fact and intention. Hence, to effect a change of domicile, there must be an actual abandonment of the first *145 domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence at another place, or within another jurisdiction, coupled with the intention of making the last acquired residence a permanent home." See cases there cited. Also, In re Finlayson, 206 N.C. 362, 173 S.E. 902; Owens v. Chaplin, supra.

And, in keeping with this principle, and as a general rule, a student, although an adult, does not acquire a legal domicile at an educational institution where he resides with the ultimate intention of returning to his original home. 28 C.J.S., Domicile, § 12(g) 3, p. 28.

In the light of these principles, and of the findings of fact that both parents of the infant James Bryant Hall are dead, that his grandparents, paternal and maternal, next of kin to him, reside in Alamance County, and that after the death of his mother, the father having predeceased her, he was taken to the home of his paternal grandparents in Alamance County, and resided with them, we hold that regardless of what theretofore may have been his domicile, such grandfather became, and is, his guardian by nature, and the domicile of his grandfather then became his domicile. Hence, the Clerk of Superior Court of Alamance County had jurisdiction of him at time the order of 16 July, 1951, appointing Lacy Bryant Hall, Sr., as his guardian was made. Therefore, the rulings of the judge below legally follow.

And it may be noted that it is provided by statute G.S. § 33-6 that there may be separate appointments of guardian for the person and for the estate of an orphan.

The judgment below is affirmed.