Henry Trammell v. Nicholas Trammell and Others, 20 Tex. 406

Wheeler, J. The plaintiffs having recovered in the action, the ruling of the Court upon the motion to quash the writ of sequestration'has become immaterial, as respects the merits of this appeal, and does not therefore require revision. (Cheatham v. Riddle, 8 Tex.

R. 162.) It is a sufficient answer to the objection now urged to the legal sufficiency of the petition, in that it does not distinctly aver that the domicil of Philip Trammell was in the State of Arkansas at the time of his death, that the objection was not taken in the Court below, where, had it been taken, it might have been immediately obviated by amendment. It is well settled that a demurrer, in our practice, will not be deemed to reach defective averments in pleading, which might have been cured by amendment.

If a party would take advantage of such a defect in the pleadings of his adversary, he should point it out by exception, so that the adverse party, if he thinks proper, may amend. It sufficiently appears, for the purpose of determining the sufficiency of the petition on general demurrer, that the deceased had his residence in that State at the time of his death. And it is placed beyond question by the defendant’s answer and the evidence in the case.

It is well settled that the succession and distribution of personal or movable property, wherever situated, is governed by the law of the country of the owner’s or intestate’s domicil at the time of his death. The domicil of the nativity of Nicholas Trammell having been in the State of Arkansas, the plaintiffs are entitled to recover, unless his domicil had been changed to this State at the time of his decease. The general rule is undoubted, that the domicil of nativity continues until a new domicil is acquired; and that minors are generally deemed incapable of changing their domicil during their minority.

After the death of the father his domicil remains that of his infant children. It is true, thatj for some purposes, a minor may become emancipated by the consent of his parent or guardian, expressly or tacitly given. The marriage of a female minor removes her civil disabilities by the laws of Arkansas and of this State. But it is not so provided in the case of male minors.

It would be difficult, I apprehend, to maintain, either upon principle or authority, that it does have the effect to remove their civil disabilities; or that the minor in this case became thereby a person capable sui juris to change at pleasure his national domicil. How far the parent or guardian has the power to change the domicil of the minor, so as to change the rule of succession to his property, was examined in the late case of Wheeler v. Hollis, (19 Tex.

R. 522.) An examination of the subject, if it were necessary here, it is believed would lead to the conclusion, that the defendant, if, as insisted, he is to be viewed as sustaining the relation of testamentary guardian to the minor, could not by his acts, as exhibited by the record in this case, effect a change of his domicil.

But we deem it unnecessary to enter upon the inquiry as to the effect of the marriage in this respect, or to determine when, or under what circumstances, if at all, the minor is to be deemed thereby emancipated and capable of acting sui juris so as to effect a change of his domicil; for, upon the evidence afforded by the record, we cannot regard the minor as having changed his domicil voluntarily and uninfluenced by the conduct of the defendant; and the question is not whether, under any circumstances, he could make such change of domicil, but whether the defendant, having been put in possession by his father’s will of his entire estate, and having thus acquired, as it is but reasonable to suppose, a controlling influence over him, can take advantage, for his own benefit, of a change of the domicil of the minor, brought about by his own wrongful and fraudulent conduct.

It abundantly appears by the record that, if he did not directly cause the removal of the minor, he did so indirectly by the removal of his property into another jurisdiction; at least, his conduct, in open violation of the trust and confidence reposed in him in relation to the preservation and management of the estate of the minor, must be deemed sueh as to render him solely responsible for the change of residence of the latter from the State of his nativity to this State.

He must be deemed responsible for the consequences of such removal, to those whose rights might be affected by it; and surely he cannot be permitted to take advantage of it to defeat their rights. It cannot be denied that he has acted in open violation of the unlimited confidence reposed in him and of the rights of the minor, in his conduct respecting the property while in Arkansas, and particularly in bringing it away to this country.

The will of Philip Trammell required that “ the farm and negroes should be kept together,” and the proceeds, after paying for the education, and defraying the necessary expenses of the minor, should be invested in other property for him until he should arrive at twenty-one; and it was expressly directed by the testator, that he should be kept until his majority “ at one of the best colleges in the United States.” None of the directions of the will were observed by the executor.

But the defendant, having been displaced, it seems, from his office of executor, by the Court, for squandering the property, removed it in defiance of the authority of the Court and in utter disregard of the best interests of the minor, into this State. The minor came also; but it does not appear that he came voluntarily or of his own accord, or that it was his intention or desire to change his domicil, if that would affect the question.

The reasonable inference, so far as concerns the defendant, is, that having possession of the entire estate of the minor, he had his person also completely within his influence; and that, whatever change of domicil there was, was effected by him. However it might be deemed, as between the widow and others claiming the estate, we think it clear that the defendant cannot be heard to controvert the right of the plaintiffs, by reason of a change of domicil of the minor, effected by means of his own wrongful and fraudulent conduct. He cannot be permitted thus to take advantage of his own wrong.

The widow of the minor, if properly a party to the suit in the Court below, has not appealed, and the decision of the case cannot affect her rights. Whatever they may be, we are of opinion that, upon the state of case presented by the record, the defendant is not in a condition to set up the alleged change of domicil of the minor to defeat the plaintiff’s right. We are therefore of opinion that there is no error in the judgment, and that it be affirmed. Judgment affirmed.