IN

DOMICILE OF CHILD OF DIVORCED

PARENTS.

N THE case of Hicks v. Fox (In re Vanderwater's Estate), decided August 16, 1900, the Supreme Court of Minnesota holds that when a divorce has been granted to the wife and unrestricted custody of the minor child of the marriage given her by the decree, her own domicile establishes that of the child, and that upon the law of the domicile of such minor child at the time of its death depend the inheritance rights of its heirs. In its discussion of the question, the court said: "The most difficult question arises from the determination of the domicile of Ethel at the time of her death, and this perplexity is occasioned by the artificial rules which have long been recognized concerning the subject in analogous cases. It is contended by counsel for respondent that the domicile of a child is that of its father, and that, notwithstanding the legal separation of father and mother, or the guardianship imposed by the courts upon the mother, the domicile of the father is imputed, as a matter of law, to the child, which domicile affects inheritance rights, draws to it the law of such domicile and controls the disposition of its estate. It may be conceded that this contention finds support from cases in England and this country, but none that directly decide upon the relations arising from the separation of the husband and wife, when the custody of the minor child is given to the latter. The theory that the domicile of the father continues until the majority of the child, without reference to the residence of the child and the real custody and control by the mother, is one of our inheritances from the common law, which merged the legal entity of the wife in that of her paramount lord, and recognized no separate right of property in her, free from the control of her husband. The wife formerly had no separate legal existence, and until the recent enabling statutes, recognizing her independent right to control and manage her property, had swept away this unjust relic of antiquity, it followed, as a logical necessity, that the residence of the wife and mother, even in cases of separation, did not control and fix the domicile of the marriage offspring. There could not, from the nature of the case, be two places of domicile, and the courts, without right or authority to recognize a separate legal existence in the wife, were compelled to attach the domicile of the child, for legal purposes, to the father. Perhaps in a majority of

cases such a rule was the best that could be adopted, and was fraught with the least injury; but in a majority of the cases, also, marriage and parentage, from the natural affection and humanity of the father, were sufficient to insure the best interests of the children. Exceptional cases of marital infelicity, producing separations and involving judicial interposition to secure the best inter

ests of the children, must justify the earnest solicitude of the courts in dealing with the relations of husband and wife; and we cannot see why the humane and beneficial progress of the law, which has endowed married women with the right to hold property and the means of its protection, should require an adherence to artificial rules, when the reason for the same has ceased, or compel us to blindly follow shadows, when the substance has departed. It has been held that the legal guardian of the child may fix its domicile, and that the domicile of such guardian draws to it that of the child. This is obviously the necessary rule, and in such cases secures the best interests of the child (Story, Confl. Laws, sec. 506; Pedan v. Robb, 8 Ohio, 227; Wood v. Wood, 5 Paige, 596; Townsend v. Kendal, 4 Minn. 412; Gil. 315). It has also been held that there is a modification of the rule that arbitrarily attaches the domicile of the father to the child, and gives it to the mother when the father has abandoned it (Corrie v. Corrie, 42 Mich. 509; N. W. R. 212). It would seem to follow that if the interest of the child is to be considered in cases of legal separation, when hostility between the father and mother exists, where the latter is endowed with the legal custody of the child, there is no reason of justice to support the rule that the legal residence of the mother and child does not control the domicile of the latter. The question is new and of first impression in this State, and we should adopt a rule consonant with justice, humanity and the progressive spirit of the law, which recognizes the separate legal rights of the wife, and will also secure the best interest of the party who is most concerned; and upon the grounds stated, which seem to us to be convincing, we hold that at the time of the death of Ethel Vanderwarker the domicile of the mother established the domicile of the child. This view finds support in the following recent decisions (Wilkinson v. Deming, 80 Ill. 342; Burritt v. Burritt, 29 Barb. 124; People v. Dewey [Sup.], 50 N. Y. Supp. 1013.- Weekly Law Bulletin (Ohio).

STATUTORY REVISON IN NEW YORK.

The final report of the New York State Statutory Revision Commission, which was abolished by the last legislature and went out of existence with the close of the year 1900, has been prepared. It reviews the work of the commission and of the special committee of the legislature appointed to complete the revision work. We take the following from the

report:

We are informed that all the bills have been carefully examined by or under the direction of the legislative committee, and this commission has also gone over them again for the purpose of perfecting them, and it is understood that the bills as presented will include the suggestions and amendments made by the committee and this commission.

Since the adjournment of the legislature at the last session, namely, the drainage law, the Bill of Rights, the Court of Claims law and the bill amending the forest, fish and game law.

If the commission had been continued until the meeting of the next legislature we could have submitted a final general report of our work. Although such a report cannot be submitted, we nevertheless feel it is due to the incoming legislature to make this informal report of the condition of our work before the commission is actually dissolved.

We present a list and brief description of the pending bills, including those prepared by us since the adjournment of the legislature. Further details concerning the bills will probably be presented by the legislative committee in its formal report.

These bills quite readily fall into four classes: Minor and also general amendments to existing general laws, consisting in the transfer thereto of cognate provisions of other statutes, most of which have been passed since the enactment of the general laws. These are transferred so that the general laws will include, so far as practicable, all the statutory provisions on a given subject. These provisions are added in nearly all cases without change, and are not intended to revise the statutes so transferred.

Partial revisions, of which the town law, the domestic commerce law and the general municipal law are illustrations. These bills include existing general laws on these subjects revised and in part written, with the addition of numerous other cognate statutes which represent in part the expansion of the subjects since the enactment of such general laws.

General revisions not heretofore included in any general law, of which the education law, the prison law and the wills law are illustrations. These are intended to include a general revision of the subjects named, and are proposed as new chapters of the general laws.

The code bills, including those specifically designated as codes and also the bills including provisions from codes and other statutes involved in the general plan of code separation. The proposed Code of Civil Procedure, the Justices' Code, the Surrogate's Code, the jury law, the insolvent debtor's law and others are illustrations of this class Nearly all of these so-called code bills also include provisions now in general statutes.

There are fifty-two bills still pending to bring the revision down to date, according to the Revision Commission's plan.

We take this occasion to urge on the legislature of 1901 the importance of promptly completing the revision of the statutes. The work was begun in 1889, and is now nearly completed. Forty-eight general laws have been passed, and the bills now pending and proposed by us will add fourteen to this number, making sixty-two in all, besides five codes. The forty-eight general laws already enacted include the revision and repeal of about 3,250 miscellaneous statutes, besides nearly all of the Revised Statutes.

We think that the general laws now in force, including the amendments suggested by us in the foregoing bills, together with the new general laws and codes, can all be published in four volumes of moderate size. This cannot be deemed a large body of general laws for a great State like New York. The revision is now so nearly completed that it should be finished and the laws and codes, with all amendments to date, published as one body of law. If this can be done the confusion which has

to some extent necessarily existed during the progress of the revision will cease, and our general statutes will be reduced to a systematic and harmoni

ous form.

Governor Odell, in his first annual message to the legislature, has this to say upon the subject of statutory revision:

"In 1899 the Statutory Revision Commission was appointed to prepare bills for the consolidation and revision of the statutes (L. 1889, ch. 289). In 1895 the commission was designated to revise the Code of Civil Procedure (L. 1895, ch. 1036). The commission began work upon the general laws in 1889, and since that time forty-eight of their general laws have been enacted by the legislature. At the last session of the legislature the commission presented certain new general laws and amendments to nearly all of the general laws previously enacted, which bills in the judgment of the commission, were necessary to bring the general laws down to date. The commission also presented eleven bills as a plan for the revision of the Code of Civil Procedure. All of these bills introduced in 1900 were referred to a special committee of the assembly, and upon the adjournment of the legislature a joint committee of senate and assembly was appointed to consider them and report thereon to the legislature of 1901. On January 1, 1901, the Statutory Revision Commission went out of existence by legislative enactment (L. 1900, ch. 664). The plan of code revision proposed by the Statutory Revision Commission has been disapproved by bar associations of the State, on the ground that it does not purport to revise the practice provisions of the present code. The plan proposed by the committee contemplates the removal from the Code of Civil Procedure of all the provisions not relating directly to practice and the assignment of this material to a proper place in the general laws and to make such obviously necessary changes in pleading and practice as may be agreed upon. I am informed that the revision of the general laws reported by the Statutory Revision Commission is not based directly upon the session laws, and I believe that no revision can be complete which does not take

into account the entire field of legislation and dispose of all laws. Our laws should not remain in their present confused condition. To this end I suggest that a special committee be appointed in each house of the present legislature to take charge of the bills referred to the joint committee last session; and further recommend that a special committee be appointed to complete the revision of the Code of Civil Procedure and the statutes upon plans to be agreed upon by the committee in conference with the bar associations of the State, with instructions to report said revision to the legislature of 1902."

NEW YORK STATE BAR ASSOCIATION, ANNUAL MEETING.

The twenty-fourth meeting of the State Bar Association, which will convene in this city on Tuesday, January fifteenth at 11 A. M., in the common council chamber, will be a meeting in importance fitting with the opening of the new century.

The questions to be discussed are vital to the welfare of the State and nation and the society.

The Rt. Rev. William Croswell Doane, bishop of the Episcopal diocese of Albany, who has made a serious study of the divorce question, will read a paper on "Divorce." The question will be discussed in open session.

J. Newton Fiero, chairman of the committee on law reform, will submit the draft of an act to establish a law uniform with the laws of other States relating to divorce procedure and divorce from the bonds of marriage." The provisions of the law proposed by the committee are printed below.

The part which Mr. Wu Ting-fang, the distinguished Chinese minister, will take in the proceedings, is referred to elsewhere in the JOURNAL.

The first session will be devoted to the transaction of such business as may properly come before the meeting under the by-laws of the association.

At the afternoon session, which will open at two o'clock, the address by the president, former judge of the Court of Appeals Francis M. Finch, on "Legal Education," will be delivered. Judge Finch is the dean of the Cornell Law School and has made the subject of legal education a life study. His |

Of the above papers those which are only to be read will be listened to at the session on Tuesday, and those of the papers, the subjects of which are to be discussed by the members, will be heard during the sessions appointed to be held on Wednesday.

In the assembly chamber, on Tuesday evening, at eight o'clock, the annual address before the association will be delivered by his excellency, Wu Tingfang, LL. D., envoy extraordinary and minister plenipotentiary of the emperor of China to the United States, Spain and Peru. Minister Wu has chosen for his subject, "Chinese Jurisprudence."

Admission to the address of Mr. Wu will be by card. After the address he will be given a reception at the Fort Orange Club.

On Wednesday morning at ten o'clock the association will again convene in the common council chamber of the City Hall, at which time the subjects suggested at the joint meeting of the executive committee and law reform committee will be discussed, and such other business relating to the work of the profession will be discussed as shall properly come before the meeting.

At the afternoon session the discussions and the general transaction of business will be continued. On the evening of Wednesday at seven o'clock the annual banquet of the association will be held at the Ten Eyck. Minister Wu Ting-fang has consented to become a guest at the banquet, at which time he will respond to a toast, the sentiment of which will be announced later. The toast list is now being carefully prepared and already includes the names of the Hon. David B. Hill, Mr. Lewis E. Carr and the Hon. John B. Stanchfield.

The provisions of the divorce law which will be discussed are as follows:

SECTION 1. No divorce shall be granted for any cause arising prior to the residence of the complainant or defendant in this State which was not a

recognized.

After the president's address the election of officers will take place and some of the papers which have been prepared for the meeting will be read. A perusal of the list will easily show their importance and interest. The secretary has thus far been advised of the following:

"The Constitution and Our New Possessions," an answer to ex-President Harrison, by Charles A. Gardiner, Esq., of New York.

arose.

§ 2. No person shall be entitled to a decree for any cause arising in this State, who has not had actual residence in this State for at least one year next before bringing suit for divorce, with a bona fide intention of making this State his or her permanent

home.

§ 4. No person shall be entitled to a divorce unless the defendant shall have been personally served with process if within this State, or if without this State, shall have had personal notice duly proved and appearing of record, or shall have entered an appearance in the case; but if it shall appear to the satisfaction of the court that the complainant does not know the address nor the residence of the defendant, and has not been able to ascertain either, after reasonable and due inquiry and search, continued for six months after suit is brought, the court or judge in vacation may authorize notice by publication of the pendency of the suit for divorce, to be given in the manner provided by law.

Wagoner, William C. McHarg, Lewis B. Hall, Alfred A. Guthrie, Henry D. Burlingame, John J. McCall, Mark Cohn, Albany; United States Supreme Court Justice Rufus W. Peckham, Washington, D. C.; John A. Delehanty, Patrick C. Dugan, John Gutmann, William J. Hillis, John J. Brady, William E. Woolard, George S. Hinckel, Clifford D. Gregory, John H. McMahon, Edward T. Reed, D. Cady Herrick, Martin H. Glynn, Joseph P. Coughlin, George A. Reilly, Fletcher W. Battershall, John H. Gleason, Daniel J. Dugan, Julius Illch, Charles C. Van Kirk, Alpheus T. Bulkley, Albany; Hiram Griggs, Douglas A. Hinman, George H. Fitts, Henry A. Strong, Lewis Cass,

§ 6. After divorce, either person may marry again, but in cases where notice has been given by publication only and the defendant has not appeared, no decree or judgment for divorce shall become final or operative until six months after hearing and decision.

§ 7. Wherever the word " divorce" occurs in this act it shall be deemed to mean divorce from the bonds of marriage.

§ 8. All acts and parts of acts inconsistent herewith are hereby repealed.

Other questions suggested are: Changes with reference to jurisdiction and practice of federal courts; what action should be taken by the association with reference to revision of the Code of Civil Procedure and general laws, as proposed by the joint committee of the legislature? Third, what action can be taken by the legislature or courts to prevent fraudulent divorces? Fourth, should the association take any action with reference to the proposed uniform divorce law recommended by the commissioners of thirteen States at their meeting last August?

THE ALBANY COUNTY BAR ASSOCIATION.

Diekman, C. H. Tomlinson, David H. Stanwix, Albany; John W. Kenny, Watervliet, N. Y.; William F. Hickey, Green Island, N. Y.; William A. Hendrickson, Alden Chester, Joseph A. Murphy, Albany; John Scanlon, Cohoes; Zeb A. Dyer, Amasa J. Parker, James W. Bentley, John J. O'Neill, Martin D. Conway, Neile F. Towner, W. Van Rensselaer Erving, LeGrand Bancroft, Ralph W. Horne, Robert E. Whalen, P. Francis Driscoll, Charles S. Stedman, Charles M. Stern, William J. Grattan, Smith O'Brien, S. J. Daring, Albany; Joseph H. Hollands, Watervliet.

J.

The association adopted a resolution presented by Newton Fiero, to the effect that the body approves the plan of code and statutory revision adopted by the joint committee of the legislature, and advises its adoption. The purpose of the proposed revision is to take from the present code the chapters not essential to practice and simplify it so far as possible. The resolution is to the same effect as the recommendations along this line in Governor Odell's message.

The Constitution and By-Laws prepared by a committee, consisting of Messrs. Fiero, Rudd and Scott, were adopted.

The association will meet late in February to elect officers.

LAW.

Francis Kimball, John V. L. Pruyn, Fred C. Ham, Franklin M. Danaher, Richard O. Bassett, Luther C. Warner, J. Murray Downs, Edwin G. Day, Arthur R. Walsh, George M. True, Russell M. Johnston, Lucius H. Washburn, M. J. Severance, Jr., Albert C. Tennant, John W. Walsh, Newton W. Thompson, Isidore Wachsman, Thomas F. Wilkinson, Albany; Eugene McLean, Watervliet, N. Y.; Charles M. Friend, Peter A. Hart, Edward J. Brennan, Martin T. Nachtmann, Andrew G. Seelmann, John H. Dugan, Pierre E. DuBois, Charles E. Patterson, Henry S. McCall, John J. Acker, R. B.

Justice David McAdam, of the New York Supreme Court, says on the subject of divorce and divorce laws, in a signed article, copyrighted by the Christian Herald, New York:

"You ask me what reforms should the new century bring in the matter of the divorce law should we not have a uniform and just national divorce law? After considering all points, I find that the question merits an emphatic affirmative. The present condition of affairs with reference to divorce is deplorable. We have now forty-five States, all of which (excepting South Carolina, in which divorces are not granted) have legislated differently upon this branch of the law of domestic relations. The legislation would not be so injurious in its consequences