property, the act of the ward, in changing his domicile, is no more inconsistent with, or prohibited by, the guardianship, than is his act in making a will. Both acts require competent mental capacity, and the decree of guardianship is not conclusive of the want of capacity to do either act. That decree does not fix the general status of the ward as a lunatic or an insane person, but only his local status as one under guardianship in this commonwealth as an insane person, and is conclusive only in the domestic courts, and as to acts which the law requires to be done by the guardian, and forbids to be done by the ward. Leonard v. Leonard, 14 Pick. 280; Breed v. Pratt, 18 Pick. 115.

The guardian of an insane person has by law the care and custody of the person of his ward, and it is argued that a person under restraint and in custody cannot be free to choose his own residence. The statute gives very general authority to all guardians of insane persons and of spendthrifts alike, sufficient to meet the needs of any class or condition of wards, but the authority is to be exercised only as required by the condition or conduct or circumstances of the ward. The statute does not make it the duty of every guardian to keep his ward in actual custody. It may be proper for a guardian to allow his ward to go from place to place without restraint, even beyond the limits of the guardian's authority. The law does not prohibit a guardian from allowing his ward to go beyond the limits of the state. The guardianship in this state cannot prevent the ward of sufficient mental capacity from acquiring a domicile in fact in another state, which will be recognized by other courts. The question is, how far will such foreign domicile be recognized by our courts? The consent, express or implied, of the guardian, may be required by the domestic courts, as the ward who removes without such consent might be held by such events to be in the position of one escaping from lawful authority; but when the ward, of sufficient mental capacity to change his domicile, is permitted by his guardian to remove from this state, and does in fact acquire a new residence in another state or country, we see no reason that our courts should not recognize the foreign domicile, except so far as it affects the relation of guardian and ward within this jurisdiction. To hold otherwise would be to preclude a person under such guardianship from acquiring a foreign domicile for any purpose. We know of no authority which sustains that position.

While there is a marked distinction between the change by a guardian of his ward's municipal and of his national domicile, the same distinction does not seem to exist in the case of a change by the ward with the assent of the guardian. If the ward has mental capacity to abandon his domicile, and acquire a new domestic domicile, he has capacity to acquire a new national domicile. That a new municipal domicile can be so acquired by a ward with the assent of his guardian, sufficient to give jurisdiction for the probate of a will, was decided in Culver's

Appeal, 48 Conn. 165. The objection to a change of the national domicile of his ward by a guardian, that the acquisition of the new domicile requires an act in its forum, where the guardian has no authority to act, does not apply when the ward has capacity to acquire for himself a new domicile. The abandonment of the domestic domicile by the guardian for the ward, or by the ward with the assent of the guardian, and the adoption of the foreign domicile by the ward, must work a change of the national domicile of the ward, if such change is possible. The mere fact that a person is under guardianship in this state cannot prevent him from becoming in fact a citizen and inhabitant of another state, or from exercising any right or holding any office limited to citizens and residents of that state, and such domicile will be recognized by the courts of this state, except so far as it contravenes the laws of this state; that is, so far as it affects the authority of the guardian in this jurisdiction. If the guardian has any authority over the person or property of the ward without the jurisdiction of this state, he certainly has none in regard to the succession to or the disposition of the property of the ward after his death. Giving effect to a foreign domicile, so far as it affects the succession to property, does not contravene any law or rule of policy of this commonwealth.

The statutes of this commonwealth recognize the possibility of a change of domicile from this to another state of one under guardianship here, as an insane person, though they also recognize the fact that such change will not affect the authority of the guardian in this state. Pub. St. c. 139, § 39, provides that when a person, having a guardian appointed in this commonwealth, removes or resides out of the commonwealth, the probate court may by its decree authorize the guardian to sell the real estate of his ward, and to pay over the proceeds, and the personal estate of the ward, or any part thereof, to a guardian appointed in the state or country in which the ward resides. St. 1858, c. 117, provided that "when any minor, spendthrift, or insane person shall remove out of this commonwealth," the guardian appointed in this commonwealth might, as authorized by the supreme judicial court, pay over estate of his ward to a guardian appointed in the state to which the residence of the ward may have been removed. See, also, Gen. St. c. 109, § 23; St. 1862, c. 139; St. 1866, c. 122. We can have no doubt that the courts of the state to which the residence of a person under guardianship in this state as an insane person had been removed, and in which he resided at the time of his death, within the meaning of the statutes, have jurisdiction to prove and allow his will.

When Mr. Stone left this state, and went to Iowa to establish his residence there, he had sufficient mental capacity to change his domicile, and he was not under guardianship. The petition for the appointment of a guardian over him was pending, and he had attended a hearing upon it, but there was no adjudication that he was a proper subject for

guardianship, and no appointment of a guardian, until several weeks after he took up his residence in Iowa. He was under no custody or restraint, and there was no one who had a right to assent or object to his removal. It would seem that his change of domicile was then complete, except that it did not deprive the probate court in this state of its jurisdiction over him or the petition then pending. If the assent of the guardian after his appointment was necessary, it was given.

If Mr. Stone, being of mental capacity to change his domicile, in good faith removed his residence to Iowa while the proceedings for the appointment of a guardian over him were pending, and if his residence in Iowa continued until his death, and was assented to by his guardian after his appointment, we think he was such a resident of Iowa that the courts of that state had original jurisdiction of the probate of his will.

Case to stand for trial.21

21 See, also, Culver's Appeal, 48 Conn. 165 (1880); Mowry v. Latham, 17 R. I. 480, 23 Atl. 13 (1891); note, 61 Univ. of Pa. Law Rev. 588 (1913).

The domicile of a lunatic cannot be changed by his committee. Commonwealth v. Kernochan, 129 Va. 405, 106 S. E. 367 (1921); Hayward v. Hayward, 65 Ind. App. 440, 115 N. E. 966, 116 N. E. 746 (1917).

CHAPTER III

JURISDICTION OF COURTS 1

THE BELGENLAND.

(Supreme Court of the United States, 1885. 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152.)

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

BRADLEY, J. This case grows out of a collision which took place on the high seas between the Norwegian bark Luna and the Belgian steamship Belgenland, by which the former was run down and sunk. Part of the crew of the Luna, including the master, were rescued by the Belgenland and brought to Philadelphia. The master immediately libeled the steamship on behalf of the owners of the Luna and her cargo, and her surviving crew, in a cause civil and maritime. The libel stated in substance that the bark Luna, of 359 tons, was on a voyage from Porto Rico to Queenstown, or Falmouth, with a cargo of sugar, and when in latitude 44°33', and longitude 21°43', was met by the steamship Belgenland, end on, between 1 and 2 in the morning, and was run down and sunk by her, only five of her crew escaping; that the light of the steamship was observed right ahead when a mile or more off; that the bark kept her course, as was her duty to do; and that the steamship took no measures to avoid her, but came on at full speed until she struck the Luna; and that the collision was altogether the fault of those in charge of the steamship.

The master of the Be.genland appeared for her owners, and filed an answer, denying that the Luna, at the time of the collision, was sailing on the course alleged, and averred that she was crossing the bows of the steamship, and must have changed her course, and that this was the cause of the collision; that the Luna was not discovered until the instant of the collision, when it was too late to alter the course of the steamship; and that the reason why the bark was not seen before. was that she was enveloped in a shower of rain and mist, and that the steamship was plunging into a heavy head sea, throwing water over her turtledeck forward. The proctor for the Belgenland, at the

1 "Few things are more disputable than the limits within which the courts of a country have a right to exercise jurisdiction. The plain truth is—and this holds good of England no less than of other states-that every country claims for its own courts wider extra-territorial authority than it willingly concedes to foreign tribunals." Dicey, Conflict of Laws (3d Ed., 1922) 29.

As to legislative jurisdiction, see Beale, The Jurisdiction of a Sovereign State (1923) 36 Harv. Law Rev. 241.

time of filing his answer, excepted to the jurisdiction of the court, and stated for cause that the alleged collision took place between foreign vessels on the high seas, and not within the jurisdiction of the United States; that the Belgenland was a Belgian vessel, belonging to the port of Antwerp, in the kingdom of Belgium, running a regular line between Antwerp and the ports of New York and Philadelphia; and that the bark Luna was a Norwegian vessel, and that no American citizen was interested in the bark or her cargo. The District Court decided in favor of the libelant, and rendered a decree for the various parties interested, to the aggregate amount of $50,278.23. An appeal was taken to the Circuit Court, which found the following facts, to wit:

"(1) Between 1 and 2 o'clock on the morning of September 3, 1879, in mid-ocean, a collision occurred between the Norwegian bark Luna, on her voyage from Humacao, in Porto Rico, to Queenstown or Falmouth, and the steamship Belgenland, on a voyage from Antwerp to Philadelphia, which resulted in the sinking of the bark, in the total loss of the vessel and her cargo, and in the drowning of five of her crew. "(2) The wind was between S. W. and W. S. W., and there was not much sea, but a heavy swell. The bark was running free, heading S. E. by E. half E., having the wind on her starboard quarter. All her square sails were set except her main royal, and she carried also her fore, main, and mizzen staysails and inner jib. Her yards were braced a little, her main sheet was down, but the weather clew was up. She was making about seven and one-half knots. Her watch on deck consisted of the first mate and three men; an able seaman was on the lookout on the topgallant forecastle, and a capable helmsman was at the wheel. She carried a red light on her port side and a green light on her starboard side, properly set and burning brightly, which could be seen, on a dark night, and with a clear atmosphere, at least two miles. The character and location of these lights conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade. About 1:45 o'clock the lookout sighted the white masthead light of a steamer right ahead, distant, as he thought, about a mile, and reported it at once to the mate, who cautioned the man at the wheel to 'keep her steady and be very careful,' and the bark held her course. No side lights on the steamer were seen from the bark, but, as the vessels approached each other, the white light of the steamer gradually drew a little on the port bow of the bark for three or four minutes. The mate of the bark seeing the steamer's sails, and that she was heading directly for the bark, was close aboard of her, and reasonably apprehending that a collision was inevitable, ordered the bark's helm hard aport. In a few seconds the steamer's starboard light came into view, and in another instant she struck the bark on her port side, cutting her in two obliquely from the after part of her fore rigging to the fore part of the main rigging.

"(3) The Belgenland was steering N. W. by W. half W. by com