Harkins vs. Arnold.

of domicil which arises, as a question of fact, and (under the evidence as set forth in the decision pronounced from the bench and as embodied in the statement of facts by the Reporter,) to hold that the jury had sufficient evidence before them of the animus revertendi on the parts of the step-father and the mother of the children to sanction the verdict. For myself I am prepared to say, as matter of law, that the minors have never lost their domicil in Gordon county, so far as to deprive them of their right to homestead, for the following reasons: First, the place of birth of a person is considered as his domicil, if it is at the time of his birth the domicil of his parents, or, rather, of his father. Patris originem unusquisque sequatur. Secondly, the domicil of birth of minors continues until they have obtained a new domicil. Thirdly, minors are generally deemed incapable, proprio motu, of changing their domicil during minority. [This rule has, perhaps, its exceptions: Roberts vs. Walker, 18 Georgia, 5;] and, therefore, they retain the domicil of their father. Fourthly, if the father dies, his last domicil is that of his infant child.

A widow retains the domicil of her deceased husband until she obtains another. A married woman follows the domicil of her husband: Story's Conflict of Laws, section 46. At common law a domicil cannot be acquired by act of the infant; but, with the exception of fraud, a domicil acquired by the mother with whom the infant continues to reside (the father being dead) becomes the domicil of the infant: Pottinger vs. Wrightman, 3 Mer., 67. But by the civil law. minors retain the domicil which their father had at the time of his decease, although the infants afterward remove with the consent of their curators, tutors or relations; because they are not permitted to change the order of their succession to personal property, which depends on the law of domicil: 2 Domat's Public Law, 487, book 1, title 16, section 3, article 10. This principle does not appear to have been adopted by the common law because the right of inheritance is not changed by a change of domicil within the State nor is the

Harkins vs. Arnold.

settlement of estates affected thereby: Holyoke vs. Haskins, 5 Pickering's Reports, 25-6, and authorities there cited.

In Georgia, if, as contended by counsel, no one, who is a resident of another State, is entitled to homestead here, the reason of the civil law applies in full force. In addition to this, section 1695 of the Code provides that "A person, whose domicil for any reason is dependent upon that of another, can, by no act or volition of his, effect a change of his own domicil; nor can a guardian change the domicil of his ward by a change of his own, or otherwise, so as to interfere with the rules of inheritance or succession, or otherwise affect the rights or interests of third persons." The same person may have a domicil in one place for one purpose-in another, for another purpose: Somerville vs. Somerville, 5 Vesey, 786. For these reasons, as matter of law, I think that no change of the domicil of the mother, the natural guardian of the children, could so far change their domicil as to deprive them of their right to homestead in their father's estate. The jury, however, have found, as matter of fact, that their step-father did not change his domicil. There is evidence to sustain this finding. And this settles their right to homestead.

3. Section 13 of the Homestead Act of 1868 provides that the minors may apply for homestead by next friend. Judgment affirmed.

INDEX.

ABATEMENT. See Domicil, 2.

ACCESSORY. See Criminal Law, 22, 23.

ACCORD AND SATISFACTION.

See Usury, 4.

ACCOUNT. See Judgment, 5.

ADEMPTION. See Will, 9.

ADMINISTRATORS AND EXECUTORS.
1. When an administrator sells railroad stock, the prop-
erty of the estate which he represents, at private sale,
and his vendee sells to a bona fide purchaser without
notice, the title of such purchaser will be protected, as
against the heirs of said estate. Nutting et al. vs.
Thomason et al..........

2. If the original purchasers of this stock bought it
from the administrator at private sale, under such cir-
cumstances as the law will charge them with notice,
and have either appropriated it to their own use or.
sold it to others, then they are liable to the heirs for
a conversion of it, such purchase being a fraud upon
their rights. Ibid.

3. A paper, signed by the Ordinary, purporting to grant
to an administrator leave to sell the land of the estate
which he represented, which had never been recorded
or entered on the minutes of the Court, and without
proof that such order had been granted, at a regular
term of the Court of Ordinary, is inadmissible in evi-
dence. Groover et al. vs. King

4. The recital in an administrator's deed, executed on
the 3d day of December, 1861, that leave to sell the
land was granted in November last past, is notice to
the purchaser that the requirement of the law, as to

34

101

forty days' public notice of the sale, had not been
complied with. Ibid.

5. Although the minor heirs of the intestate may have
had a guardian who receipted to the administrator for
their portion of the proceeds of the land, without any
knowledge of the illegality of the sale, yet they were
not estopped from asserting their claim to the land,
when they obtained a knowledge of such illegal sale,
they accounting for the money received. Ibid.
6. Where a suit is brought by administrators against an
attorney for money collected by him as their attorney
and not as an attorney for their intestate, the allega-
tion in the pleadings of their representative character
is mere surplusage, as they were entitled to maintain
the action in their own names. Kenan, executor, vs.
DuBignon et al., administrators..

7. Suit being brought by administrators, proof of their
representative character is unnecessary, unless denied
by plea. Ibid.

8. Where a note is given by a temporary administrator
for property purchased at an administrator's sale, it
does not bind the estate which he represents. Fun-
derburk, administrator, vs. Gorham et al......

9. If the property purchased is appropriated for the ben-
efit of the estate represented by the temporary admin-
istrator, and he is insolvent, the creditor may proceed
against said estate. Ibid.

258

296

10. Where a creditor applies for letters of administra-
tion upon the estate of his deceased debtor, it was
error in the Court to exclude notes and mortgage to
secure the same, made by the debtor, which were
offered in evidence to show the indebtedness, on the
ground that no affidavit had been filed of the pay-
ment of taxes thereon. Einstein vs. Latimer et al...... 315
11. An executor who, by the will of his testator, (pro-
bated in 1853, and by which a solvent estate of more
than $200,000 is committed to his hands,) is directed
to move a slave to a free State, to be there manumit-
ted, and to invest for such manumitted slave, on his
arrival at age, which occurs in 1862, $3,000, cannot,
after refusing to execute the bequest of his testator
until the close of the war, free himself from liability

by showing that the estate has perished on his hands
from the results of the war and other causes. Ander-
son vs. Green, executor

... 361
12. If an executor buy land of his testator at his own
sale, the purchase is voidable at the election of a leg-
atee.

Ibid.

13. Where an executor relies on the defense of plene ad-
ministravit, it is not error in the Court to charge the
jury, "if you find, from the evidence, there has been
no full and complete administration of the assets of
the estate, then this plea of defendant's fails, and your
verdict may also be against the assets in his hands to
be administered, or in default of such assets, against
his personal goods." Ibid.

14. The executor in this case, having made himself per-
sonally liable, by his neglect, for the payment of com-
plainant's legacy, before any law existed authorizing
him to invest in Confederate securities without an
order of Court, the charge complained of in the 33d
ground for new trial is immaterial. Ibid.

15. An executor, who has willfully or negligently mis-
managed the property in his charge to the injury of a
legatee, cannot avail himself of the provisions of the
Relief Act of October 13th, 1870, when sued by such
legatee. Ibid.

16. Where land is "regularly advertised and sold at ad-
ministrator's sale," (and the record states no more)
and is afterwards levied on under a judgment obtained
against the intestate in his lifetime, and the Court de-
cides that the administrator's sale divests the judg-
ment lien-to which judgment exception is taken-
the plaintiff in error must show affirmatively that the
estate was solvent, and the order of sale was not
granted for the payment of debts, but for distribution
only, in order to entitle him to a reversal of the judg-
ment, even if this would do so. And as to this, we
reserve our opinion. Carhart et al. vs. Vann........... 389
17. Where an executor is sued as such, in the county of
his residence, and, pending the suit, dies, and admin-
istration de bonis non, is granted upon the estate of
his testator, who lived and died in a different county,
to a citizen of the county of the testator's residence,
the suit against the executor does not abate, and a