Tuttle v. Wood

Ladd, C. J.

1 *509 2 *510 3

*508 The testator, Jeremiah Wood, died in August., 1898; and, of course, if his son Wm. D. departed life before that time, he did not take the land attached under the will or as heir. Unmarried when he left home in 1878 or 1879, and when last heard from, that status will, in the absence of any showing to the contrary, be presumed to have continued. No direct evidence of his demise was introduced. The interveners relied solely upon the presumption of death arising from absence from home without intelligence concerning him for a period of more than seven years. Sherod v. Ewell, 104 Iowa, 253 ; Burr v. Sim, 4 Whart. 150 ( 33 Am. Dec. 50 ). Their evidence tended to show that they had heard from him frequetly after he left his home in Wayne county until 1887. During this period he had written from Montana, Idaho, Oregon, and Mexico, and the last letter came from a hospital in San Francisco, Cal. He had been afflicted since boyhood with what is commonly known as a “white swelling,” for, which he had undergone several operations, was addicted to the use of intoxicating liquors, and was not strong physically. This was met by proof that William was involved financially when he left home, and the testimony of one *509 Blagg that be bad seen a man at Central City, Neb., six years previous, who had declared he was not a son of Jeremiah Wood, but whom the witness, who had known William prior to his departure, finally concluded was that person, though larger and younger than described at the trial. It appeared that William had dealt in stock during' the first two years after he left Iowa, at Helena; that he sometimes drove cattle and horses to Idaho for sale, and was for a few months ^employed ón a r'anch near Helena. The appellant' insists that he had established a domicile in Montana, and absence therefrom, rather than from his Iowa home, should be considered iii passing upon the probability of his death. ' It is'to be noted that all the indicia ordinarily resorted to in order to prove domicile were wanting, to-wit, declarations to that effect, the exercise of political rights, payment of personal taxes, a place of residence or of business, etc. At most, this was a question for the jurors; and they were told, if they found “from the evidence that said Wm. I). Wood had any fixed and permanent home after he left his father’s home in this county, then the absence of seven years, before defined, must have been from such permanent and fixed residence. But if you find that the said Wm. D. Wood liad no permanent and fixed home elsewhere than in Wayne county that would be strictly termed a 'permanent home,’ or if you find from the evidence that ho traveled from, place to place, remaining át no one place long- enough to make a nernianent home, then you will confine, yourself to his absence from his home here in Wayne county, as before defined to you in these instructions.” That this instruction is correct, in the abstract cannot be questioned. A domicile once acquired is presumed to continue until shown to l^ave been changed. '“To constitute the, new domicile two things are indispens.•able : First, residence in the new locality; and, second, the intention to remain there. The change cannot be made •except facto cl animo. Both are alike necessary. Either *510 without the other is insufficient. Mere absence from a fixed, home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains.” Mitchell v. U. S., 21 Wall. 350 (22 L. Ed 584). See, also, Botna Valley State Bank v. Silver City Bank, 87 Iowa, 479 ; Moffett v. Hill, 131 Ill. 239 (22 N. E. Rep. 821) ; Bangs v. Inhabitants of Brewster, 111 Mass. 382 . But it is said the law should have-been especially applied to- the evidence adduced. A sufficient answer is that, had plaintiff desired a more explicit instruction, he should have requested it. The saméis true of his complaint of the failure to direct particular attention to evidence which might have been considered as tending to rebut the presumption of death. It is to be-said, however, that the facts were not complicated, and it is doubtful whether the jury would have been aided by a more particular reference to the evidence in the charge.

4 II. Isaac Wood was asked “what the letters contained you received in 1887 ?” To this plaintiff objected as not the best evidence, but there was no ruling. The next question was, “You say you received some letters from him?” To- this no objection was interposed, but the court declared the evidence competent, saying: “If does not go in to prove the contents of the letter, or for-any purpose except to show whether he was dead.” So that the admissibility of the evidence of the contents of' the letters was not passed on, but it was afterwards received. without objection.' Some time- after Bobert Wood had detailed what certain letters contained, the plaintiff moved that such evidence be striken from the record; but a party cannot sit by and allow testimony to be- given, and then, if unsatisfactory, ask to have it stricken. State v. Marshall, 105 Iowa, 38 .

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*510 III. The plaintiff was asked if he had a conversation: *511 with Jeremiah Wood, five-or six'years before his death, as to where William was. On objection, the answer was excluded. Nothing contained in the question or statement of counsel indicated what was proposed to be proven, and for this reason, if for no other, error cannot be predicated on the ruling. Notwithstanding adverse rulings in the first instance, Isaac Wood was allowed to state the financial condition of William when he departed from home; and Blagg to give his opinion of the identity of the person he met at Central City, Neb., as William.

Some other matters, too often, decided to require any further attention, are discussed.

The record is without reversible error, and the judgment is AFFIRMED.