In Harteau v. Harteau's it is said (semble) that a wife can have a separate domicile if the proceedings are to show that the status ought to be dissolved." The rule (of identity of domicile) is founded on the theoretic identity of persons and of interests, between husband and wife as established by law and the presumption that, from the nature of the relation, the home of one is that of the other, and is intended to promote, strengthen and secure their interests in this relation as it ordinarily exists, when union and harmony prevail." Hopkins v. Hopkins29 decides that when the husband abandons the wife the necessity of her having a separate and independent existence gave her a separate residence and domicile. McKnight v. Dudley30 decided that when the husband goes insane and is confined in an asylum, his wife becomes the head of the family and may get a domicile of her own and may change it as she chooses. The same thing is true when the husband is pronounced legally dead. In Saperstone v. Saperstone31 we have an interesting case. Here the husband and wife were domiciled in Russia. They decided to emigrate to America. The wife was allowed to enter here, but he was returned for trachoma. The wife supported herself here and ceased all relations with her husband. It was held "that the wife had an absolute right to acquire a new domicile and her acts were effective for that purpose." The language of Blodgett, J., in Shute v. Sargent32 is very strong. He says: "So completely has the ancient unity become dissevered and the theory of the wife's servitude superseded by the theory of equality which has been established by the legislation and adjudication of the last half century that she (the wife) now stands al most without an exception upon an equality with the husband as to property, torts, contracts and civil rights." On this reasoning he grants the wife a separate domicile, holding that when a husband has forfeited his marital rights by misbehavior, the wife may acquire a separate domicile for all pur poses. 33 Smith v. Smith is an extraordinary and unusual case. Here the husband and wife were domiciled in Ohio. The wife deserted the husband and went to the District of Columbia. There she committed adultery. Later on the husband acquires a domicile in Maryland. Then he sues for divorce in the District of Columbia. He is granted a divorce. The court goes on the ground that "the social interests in defining the status of a person who calls herself a wife in this jurisdiction is to be determined." This case not only conceded à domicile to the wife, but also says that she can acquire it in spite of her own wrongdoing, and that to that domicile the injured husband may repair and get a divorce even though his own domicile is elsewhere. This is swinging in favor of emancipation of the wife with a vengeance. It is placing the wife on an absolute equality with the husband so far as the matter of domicile is concerned. You can almost say that for purposes of divorce the domicile of the husband follows that of the wife. Thompson v. Love held that a single woman did not lose her domicile simply because she got married. She is held to retain her own domicile until she changes it of her own volition. Usually, of course, it may be assumed that when a woman marries she intends that her home should be with her husband, but if there is a secret marriage, as was the fact in this case, there may well be no such intention and the domicile of the wife should remain where it was before marriage. In Watertown v. Greaves35 where a wife is allowed to sue in the Federal Courts as a citizen of a state other than that in which her husband is domiciled, it is said: "If the husband abandons the wife and their domicile and relinquishes altogether his marital control and protection, he yields up that power and authority over her, which alone makes his domicile hers." White v. Glover holds that though the domicile of the husband is prima facie the domicile of the wife, when the necessity arises which justifies the wife in leaving the husband, she may acquire a domicile of her own. Wilcox v. Nixon holds that the domicile of the wife is that of the husband only when the husband has one where the wife has a right to stay. 46 We have already seen that she can acquire a separate domicile for the sake of getting a divorce and it follows that she can also have a separate domicile because of acts which give her a right to a partial dissolution of the marriage status.45 In cases of desertion it has been held that the wife cannot use the domicile of her husband as her domicile unless she has abandoned her own domicile and accepted her husband's domicile as her domicile of choice, and where the wife deserts the husband he can use her domicile to get a divorce from her.47 A wife may sue her husband in the Federal Courts for alimony, and for the maintenance of herself and their children," and has a separate domicile whereby she can establish diversity of citizenship.50 She has a separate domicile also to sue a stranger for alienation of her husband's affections.51 She can claim dower rights where a statute gives it to her after she has divorced her husband and married again.52 She can 48 Mr. Justice Holmes, in Williamson v. Osenton,38 gives his approval to the liberal doctrine as follows: "That a wife *** may get a different domicile from that of her husband for purposes of divorce is not open to dispute. This she may do without necessity and simply from choice, and the change that is good as against her husband ought to be good as against all. We see no reason why the wife who has justifiably left her husband should not have the same choice of domicile for an action for dam-sue a city to recover damages for injuries ages that she has against her husband for divorce." The preceding citations show that there is a growing tendency in favor of giving at married woman a domicile of her own for all purposes. The cases show that a married woman may have a domicile of her own when she has been deserted by her husband,39 when to her person. 53 She has a domicile of her (43) (44) (46) Cf. note 20B, supra. (47) Smith v. Smith, 4 Mackey 255. (49) Wyrick v. Wyrick, 162 Mo. App. 723; Gordon v. Yost, 140 Fed. 79. (51) Williamson v. Osenton, 232 U. S. 619. (52) Harding v. Allen, 9 Greenleaf, (Me.) 140. (53) Watertown v. Greaves, 112 Fed. 183. Bennett v. Bennett, Deady 299. (50) own to recover money from her husband when he has received it in her name,54 and to avoid an unauthorized appearance which he has made for her,55 and to receive an allowance from her husband's estate where such allowance is given by statute.56 58 37 Where liability on a bond depends on domicile the wife has a domicile of her own. So far as being counted as in a majority of landowners when the assessment of property is under discussion, marriage does not destroy her separate domicile, and she is allowed to have a residence (domicile?) of her own to acquire land in California.59 She has a separate domicile within which her will is admitted to probate, and if she goes insane her domicile does not change with that of her husband, nor does she acquire his domicile if he has none, 62 nor get a pauper settlement through him.63 61 60 A married woman gets a separate domicile if she becomes the head of the household through the insanity of her husband,64 or by emigration on her part with subsequent severance of all relations with him.65 If he is pronounced legally dead she is entitled to a domicile of her own and is entitled to a pension due to her husband.6 As a general matter it can be said that although the domicile of the wife will be presumed to be that of the husband so long as the marital relations subsist, and there is no evidence to the contrary, if, in fact, (54) (55) (56) (57) (58) (59) 67 Lyon v. Lyon, 30 Hun. (N. Y.) 455. re (60) In re Crosby's Estate, 148 N. Y. S. 1045; In re Cooke's Trusts. 56 L. T. R. 737; In Florance; Shute v. Sarge..t, 67 N. H. 305. (61) Washington Co. v. Polk Co., 137 Iowa 533. (62) Wilcox v. Nixon, 115 La. Rep. 47; Buffalo v. Whitedeer, 15 Pa. 183. (63) Bradford v. the City of Worcestor, 184 Mass. 557. (64) McKnight v. Dudley. 148 Fed. 204. (65) Saperstone v. Saperstone, 131 N. Y. S. 241. (66) Marden v. Boston, 155 Mass. 359. (67) Harry v. Dodge, 123 N. Y. S. 37. or there is a necessity that she should have a domicile of her own, the law will grant her a separate domicile."" Three cases are very interesting in that they seem to indicate that the domicile of the wife does not merge with that of the husband at the time of marriage. These cases are Hines v. Hines," where the wife sues for divorce on the ground that the marriage had been performed through force, fraud and coercion; Wilcox v. Nixon, where the husband takes his newly married wife to the home of her parents and leaves her there; and Buffalo v. Whitedeer, which holds that a wife does not take the domicile of her husband if he has none. This is rather odd as every person is supposed to have a domicile somewhere. 71 72 In the light of the preceding array of authority, it is difficult to see how one can support the claim made by Prof. Beale, in the article already cited, that the wife can have a separate domicile only for the purpose of getting a divorce or a judicial separation; nor how it can be said that his view "is generally held to be the law." He cites four cases for his proposition, and only one case in support of his inexplicable theory that even for purposes of divorce if the wife wants a separate domicile she must seasonably apply for the divorce or she will not be granted her sepa 74 (68) Irby v. Wilson, 21 N. C. 568; Dutcher v. Dutcher, 39 Wis. 651; Douthit v. Southern. 155 S. W. 315. (69) Hunt v. Hunt, 72 N. Y. 217, (semble); Stevens v. Larwill, 84 S. W. 113; In re Geiser, 82 N. J. Eq. 311; Cheever v. Wilson, 9 Wallace, 108, 123. (A note of warning must be given in these cases. It is at times hard to see whether the courts give the wife a separace domicile because a statute gives her a right of separate residence, or because the statute having emancipated the wife the courts grant her a separate domicile as an incident of the emancipation.) (70) 10 Pac. Co. Ct. Rep. 74. rate domicile. All that in Re Mackenzie decides is, that as the wife has made no application for a divorce or a judicial separation her domicile was that of her husband when she died, and so her will disinheriting him and their child would not be admitted to probate at her place of residence, although if she had had a domicile of her own it would have been admitted to probate. Prof. Beale does not like to have a married woman get a domicile of her own. His principal argument is that "to permit separate domiciles for the spouses means the abandonment of the family as a legal unit." There are two answers to this argument. The first is historical. The family never was a legal unit since the days of the period of the strict law. The family as a family never had any rights before the law nor was it protected at common law. The husband, who through the legal fiction of identity of person, was deemed to be the head of the family, was given certain rights to the earnings of, and services by, the members of the family, but the family qua family had no standing as a legal unit before the law. It was a legal institution which the State wished to conserve, and which it tried to control through the head of the family, but it cannot be said, accurately, that the merging of the legal personalities of the members of the family into that of the husband made the family a legal unit. Furthermore, even if it is conceded that the family was a legal unit, there is no warrant for saying that giving the wife a separate domicile destroys that legal unit. The only reason for having one domicile for the family is to have control of the members of the family. For this purpose it is immaterial whether the control comes through the husband or the wife. There is nothing inherently impossible about having the center of control in either the husband or the wife, making the matter depend on which member of the family is to be controlled and what results the State wishes to achieve through such control. Whenever the husband is insane, or otherwise incompetent to control the family, the control is taken away from him. Yet this does not disrupt the family, nor does the family lose whatever standing it had before the law, when the wife, or some other indicated person becomes the head of the family. There is surely nothing so eternally sacrosanct about the husband that the legal universe will be shattered into bits if he is deprived of the privilege of fixing the family domicile. The second answer to Prof. Beale is this: The State is interested in maintaining the integrity of the family only because the family relations develop, and further the securing of, the interests of all the members of the family. When the family life. does not further these interests the State has no hesitancy in breaking up the family. If the children are not take care of they are taken to asylums and orphanages. If the husband, or wife, disturbs the peace, the law incarcerates him, or her, and pays precious little attention to the children who may be left behind, to be fed and looked after by charitably inclined neighbors or neighborhood institutions. Divorce, truancy laws, truancy commissions, compulsory education, probation laws, probation courts, domestic relations courts, are all rather pertinent reminders that King Maritus is subject to rather drastic supervision and control. The law does not hesitate to break up the family when the family does. not function as it should. So there is nothing horribly cataclysmic about "abandoning the family as a legal unit" after all. The conclusion to which we arrive after 1 consideration of all the authorities we have been able to find is this: If the interests of the State and of the wife indicate that the married woman should be given a domicile of her own, the law will grant her a separate domicile for all purposes. ALBERT LEVITT. Cambridge, Mass. DIVORCE-ALIMONY A DEBT. AVERETT v. AVERETT. Supreme Court, Special Term, New York County. March, 1920. 181 N. Y. S. 645. The right to alimony arises out of the policy of the law, and is based, not on contract, but on the husband's duty to support his wife and children. BIJUR, J. The question raised on this motion is whether a husband, defendant in an action for separation, is entitled to restitution of alimony paid under a judgment upon its reversal in the Appellate Division. The motion itself is for an order directing restitution and restraining the plaintiff from proceeding in the Municipal Court to recover on certain notes given by the defendant on account of such alimony. The plaintiff urges that restitution may not be directed except by the appellate court. I do not think that the provisions of the Code which award that power to appellate courts are intended to be exclusive or to deprive the lower court of a jurisdiction which it has always exercised under the common law (Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588, 28 Am. St. Rep 589), though probably it should be effected by way of an action rather than upon mere motion (Wright v Nostrand, 100 N. Y. 616, 3 N. E. 78). The further point urged by plaintiff, that the motion is premature because an appeal has been taken from the judgment of the Appellate Division to the Court of Appeals, need not be decided, in view of my opinion that the principle upon which restitution is ordered is not applicable either to temporary or permanent alimony. The only case in this country, cited to me or which I can find, in which the subject has been directly considered, is Mullin v. Mullin, 60 N. H. 16, in which an order for restitution was affirmed apparently as matter of course; the Supreme Court saying merely: "We are unable to conceive of any reason why a judgment in a divorce suit should bear an exceptional character." With all due respect for the authority of that learned tribunal, it seems to me that the question was not whether the judgment in a divorce suit bore an exceptional character, but whether such exceptional character inhered in that part of a judgment for divorce (or separation) which provides for the payment of alimony. In that respect such a judgment appears to me to be not only exceptional but unique. As pointed out in Wetmore v. Markoe, 196 U. S. 68, 25 Sup. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 265, the right to alimony arises out of the policy of the law and is based, not on contract, but upon the husband's duty to support his wife and children. The length to which the obligation will be carried and enforced is well illustrated in De Brauwere v. De Brauwere, 203 N. Y. 460, 96 N. E. 722, 38 L. R. A. (N. S.) 508. Although alimony which has accrued prior to the death of a wife is not a personal claim that dies with her, but practically a debt which survives in favor of her personal representative (Van Ness v. Ransome, 215 N. Y. 557, 109 N. E. 593, L. R. A. 1916B, 852, Ann Cas 1917A, 580), the Supreme Court in the Wetmore Case held that arrears of alimony due from a bankrupt do not constitute a provable debt barred by a discharge in bankruptcy Indeed, the mere fact that the amount of alimony directed to be paid in a final judgment may be varied from time to time, as provided in section 1759 of the Code of Civil Procedure, is a further distinguishing characteristic. See, also, Livingston v. Livingston, 173 N. Y. 379, 66 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600; Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332. Finally, I think it may properly be said that alimony is not really the subject-matter of an action either for a separation or for a divorce. It may or may not be provided for according to the circumstances, as expressly authorized in sections 1759 and 1766 of the Code of Civil Procedure. It is manifestly only an incident to the judgment, which is concerned directly with the marital rights of the respective parties. In that sense I do not think that it falls within the description of section 1323 of the Code of Civil Procedure, and similar provisions, as being either "property, or of a right lost by means of the erroneous judgment or order" which was reversed, and was therefore a proper subject for an order of judgment of restitution. From another point of view it may be said that, even though alimony has been paid pursuant to the direction contained in a final judgment, it has been paid, not merely in satisfaction of the judgment, but in fulfillment of the duty of the husband to support his wife and children until the relation upon which that duty depends has been dissolved by a final judicial |