The submission was on motion and on merits. The motion to strike the bill of exceptions is based on the failure to set out consecutively the interrogatories propounded under the statute and the answers thereto. It is averred that questions of fact are thus obscured. However, the real issues are apparent. The motion is overruled.
The residence in this state of a decedent husband, at the time of his death, is the statutory prerequisite to give the right of homestead to the widow and the minor child or children of such decedent. Talmadge's Adm'r v. Talmadge, 66 Ala. 199; Curry v. Barnes, 200 Ala. 256, 76 So. 22; Johns v. Cannon,199 Ala. 144, 74 So. 42.
It is established in this jurisdiction that a person's domicile is that place in which his habitation is fixed, without any present intention of removing (Merrill's Heirs v. Morrissett, 76 Ala. 433), and it embraces (1) the fact of residence (Curry v. Barnes, supra) and (2) the intention to remain (Young v. Pollak, 85 Ala. 439, 5 So. 279; State v. Hallett, 8 Ala. 159; Glover v. Glover, 18 Ala. 367. It has been further declared that for the purpose of succession (a) a person can have but one domicile (Merrill's Heirs v. Morrissett, supra; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Johns v. Cannon, supra; Curry v. Barnes, supra), and (b) when once acquired is presumed to continue until a new one is gained facto et animo (Glover v. Glover, supra; State v. Hallett, supra; Bragg v. State, 69 Ala. 204), and (c) what state of facts constitute a change of domicile is a mixed question of law and fact (Murphy v. Hunt, Miller Co., 75 Ala. 438).
In Ex parte Pearson, 76 Ala. 523, 524, 525, 526, it is declared:
"While it has been uniformly held that the statutes allowing exemptions, being founded on the humane and benignant policy of the protection of the family from dependence and want, should be liberally construed, liberality of construction should not be extended so as to include cases without the spirit of the statute, and in contravention of the domestic policy of the state. * * * To entitle the widow or children to the exemption provided by this section, it is essential that the decedent shall be a resident of the state, and that the wife and children shall be members of his family at the time of his death. * * * It may be said generally, that to constitute a family, there must exist the relation of husband and wife, or of parent and child, or descendants of child; a condition of dependence on one or the other of these relations. It is not necessary that all shall actually live under the same roof, or within the same curtilage. Some may be temporarily absent, for the purposes of education, or of business, or pleasure, or from pressing necessity; but the residence of the husband and father must be the central place, which all regard, and to which there is the intention of returning, as the home — the center of common interests, of marital and parental dependence and domestic happiness. * * * In case of realty, 'the homestead of the family' is in terms exempt; which implies actual occupancy and residence, except in case of a renting as provided by statute. The privilege of exemptions of personal property is allowed to the same class of persons — members of the family. It evidently was not the intention to confer a homestead exemption on persons only residing in the state, and at the same time to confer an exemption of personal property, whether the beneficiaries resided in or out of the state. * * * They [the statutes] contemplate the collection of husband and wife, or of parent and children or descendants of children, under such circumstances that the condition of dependence on one of the relations, which is the essential characteristics of a family, exists in this state. In the case of a permanent separation, the wife and children continuing to reside in the state of the former residence, find the husband and father coming to and residing alone in this state, the condition of dependence, which entitles the widow and children to the exemptions in event of his death, does not exist."
Thus are the conditions of residence, relation, and dependence well stated, and given application by our court. Merrill's Heirs v. Morrissett, 76 Ala. 433; Chamboredon v. Fayet, 176 Ala. 211, 57 So. 845; Griffin v. Griffin,185 Ala. 198, 64 So. 350.
The case of Johns v. Cannon, supra, contains the following:
"The residence of the deceased on the land and in the state, at the time of his death, is all that the statutes require, to the vesting of the homestead in the widow and minors during the life of the widow and the minority of the child or children, 'whichever may last terminate.' "
In Curry v. Barnes, 200 Ala. 256, 258, 76 So. 22, 24, the declaration is made:
"It follows, therefore, that the residence of the decedent in this state at the time of his death is the prime statutory prerequisite to confer or vest the right of homestead in the widow and the minor child or children of the decedent."
It may be said that a husband is a nonresident when he actually ceases to dwell within the state for an uncertain period, without the definite intention (as to any time) of returning, even though there may exist a "general intention to return at some time in the future." Weitkamp v. Loehr, 53 N.Y. Super. Ct. 79, 83.
It is the intention of the husband entering into the facts of statutory requirement *Page 581 of residence that controls, not the absence of the wife from the state. Carey v. Hart, 208 Ala. 316, 94 So. 298; Curry v. Barnes, 200 Ala. 256, 76 So. 22.
There was no error in failure to require defendant to answer interrogatories Nos. 4 to 15, inclusive. They called for immaterial answers. Collins v. M. O. R. Co., 210 Ala. 234,97 So. 631. The residence of the wife is not a condition precedent to homestead. Curry v. Barnes, supra; Carey v. Hart, supra. Interrogatories answered were pertinent as to the domicile of the husband and his intention to remain, and were to the effect that the husband resided at the time of his death on February 8, 1918, in Chicago, Ill., and that he left Alabama May 9, 1917, for Illinois, and remained there from the time of such arrival.
The other objections and exceptions to evidence and rulings on motions to exclude are without merit.
The residence of Henry Roberts for years has been established to have been Decatur, Ala., where he owned a home and resided, until he and wife went together to Chicago on the date we have indicated. This placed upon Lucy Lucky the duty of going forward with the evidence to support her exceptions to the report setting aside the homestead. There is great conflict in the evidence as to the declarations made by decedent of his intention to return to Alabama. If the same weight and credence be given to the respective witnesses, the fact remains that he left personal effects in Alabama to the time of his death, and did not sell his home or attempt to dispose of it; that on departing he did not immediately sever his church or lodge affiliations, and made positive declarations to his physician, attending him in his last illness, that Alabama was his domicile. It cannot be said that the burden of proof has been met by contestant.
The decree is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.