I am unable to concur in that portion of the opinion of the majority which reverses the decision of the trial court and respectfully dissent. I think the court had jurisdiction to appoint a guardian of the minor's person as well as his property. I would affirm the decision in its entirety.
The proposition with which I do not agree is the following statement of the majority, "At the moment of Lloyd Skinner's death the domicile of this minor child attached immediately to the domicile of his surviving parent, his mother. No lapse of time and no act of the surviving parent is required to effect the change." I think that this statement is too broad and inflexible. It also seems to be inconsistent with some of the decisions heretofore rendered by this court.
In the case of Jenkins v. Clark, 71 Iowa 552, 555, 32 N.W. 504,505, this court states, "Now, the domicile of a child is to be determined by the domicile of the parent; and, when a domicile is once fixed, it remains until another is lawfully acquired. Schouler, Dom. Rel. § 230." This is a well-established principle of law. Under the record herein, there is no question but *Page 1024 that the domicile of Louis Welborn Skinner immediately prior to the death of his father was Pottawattamie County, Iowa. The question is whether or not, upon the death of the father, that domicile was immediately transferred to Texas, the domicile of his mother. The majority opinion so holds. I cannot agree with such holding.
A case which seems to be inconsistent with such a holding is that of Jensen v. Sorenson, 211 Iowa 354, 362, 233 N.W. 717, 721, wherein the facts are somewhat analogous in that the parents of the minor had been divorced, the custody had been granted to the mother, upon the death of the mother an aunt assumed custody, the father thereafter instituted habeas corpus proceedings to secure the custody of the child, was awarded such custody and on appeal the order was reversed, this court stating:
"The larger merits of the case relate to the conduct and attitude of the plaintiff at the time of the death of his wife, and the legal effect thereof upon his parental rights. It has been held in many jurisdictions that the custodial right of a divorced parent to whom custody has been denied by the decree is revived by the death of the other parent, to whom custody was awarded. We have never had occasion to pass upon the question in this state. For the purpose of this appeal, we shall assume such to be the law, without so deciding at present. * * *
"If it be assumed that the death of the mother revives the custodial rights of the father, notwithstanding the decree, yet such right is presumptive only. The right to custody, if asserted by such parent, imposes upon him the obligations attending such custody. It is perhaps correct to say that, if the parent has a right to such custody, he has a duty to assert it, and to assume all its obligations. In the case of a mere babe, such duty is not only an imperative one, but is an immediate one."
From the foregoing pronouncement, it clearly appears that, assuming that the majority opinion is correct in holding that upon the death of the father, Lloyd Skinner, the mother, appellee herein, became entitled to custody of the child, notwithstanding the decree of divorce and the agreement relating to the custody of such child, that right was presumptive only and did not *Page 1025 attach independent of action on the part of the surviving parent. It was necessary that appellee exercise that right immediately before she could claim the benefit of it. As I read the record, she has never undertaken to exercise such right.
In applying the rule regarding the domicile of an infant, it seems to me we should consider the reasons for the rule. In 17 American Jurisprudence 625, it is stated, "Since the father is the natural guardian, is entitled to the custody and services, and is responsible for the tutelage, discipline, and support of the child, the domicil of the father is in legal contemplation the domicil of his minor children."
This statement clearly demonstrates that the reason why a father's domicile ordinarily determines the domicile of his minor child is that he is entitled to the custody and services of the child and is responsible for its support. Looking to the reason for the rule, it seems to me that the mother could not change the domicile of the child to her domicile, the State of Texas, without first doing some act whereby she became entitled to the custody of the child and responsible for its support. Applying the rule announced by us in Jensen v. Sorenson, supra, hereinbefore quoted, to the record herein, the appellee has never qualified or become entitled to the custody of this child as surviving spouse. She has never' claimed such right and does not now claim it. She seeks only appointment as legal guardian.
The record shows that some seven weeks after the death of Lloyd Skinner appellee filed an application for appointment as guardian of Louis Welborn Skinner. She did not claim the right to his custody by operation of law, but sought it at the hands of the court and asserted that said minor child was then a resident of Pottawattamie County. Since it is undisputed that the child was not then in Pottawattamie County, the logical interpretation to be given to the use of the word "residence" in such application is that it was considered synonymous with the term "domicile". Accordingly, we have the surviving mother asserting at the very outset that the domicile of this child was in Pottawattamie County. This is directly opposed to any claim that by operation of law she was entitled to its custody and liable for its support so that its domicile was changed to *Page 1026 Texas. In the subsequent pleadings that were filed, the issue has revolved around the contentions on the part of appellee that the domicile of this child was in Pottawattamie County and the contentions of appellant that the domicile was in Nebraska. No one claimed in the trial court nor in this court, as I read the record, that the domicile was in Texas. Appellant suggests that it might have been in Texas but contends that it was in Nebraska. In appellee's brief and argument, her counsel specifically state that appellee waived any right she might have had to be appointed by the courts of Texas by asserting the jurisdiction of the courts of Iowa.
As heretofore pointed out, this child had a domicile in Iowa immediately prior to the death of Lloyd Skinner. That domicile was not lost until a new domicile was acquired. I am unwilling to subscribe to the doctrine that, upon the death of the father, the domicile of the child immediately shifted to Texas and that no lapse of time or act of the mother was required to effect that change. I think that the mother had to assert her right to the custody of the child and assume the responsibility for its support before the child could acquire a domicile in Texas. Since that had not occurred, its domicile was still in Iowa when appellee invoked the jurisdiction of the district court of Pottawattamie County for the appointment of a guardian of the person as well as the property of the minor child. Since the domicile was then in Iowa, the court had jurisdiction to appoint a guardian in both capacities. I would affirm the decision on both propositions.
*Page 1027BLISS and SAGER, JJ., join in this dissent.