It is objected that the plaintiff, as guardian of the heir, can- . not maintain this action, and that it can alone he maintained by the administrator. In support of this objection we are referred to the decision of tiffs court in the case of Moore v. Morse, (2 Tex. R., 400.) That case, however, was essentially different in its facts and principle from the present. The plaintiff there claimed as the legatee of one Galpin. The property which was claimed •by him as a bequest from Galpin had been mortgaged by the latter to the defendant to secure the payment of a sum of money; and these facts appeared «pon the petition, to which there was a demurrer. Here then it is clear that an administration was necessary, and that no action could be maintained to recover the property mortgaged until there should have been satisfaction of the debt and an extinguishment of the mortgage. And the court in that case recognize the doctrine that there are cases in which the legatee or heir may maintain an actiou for the protection and maintenance of his rights respecting personal property. Such we conceive is the present case. About four years had elapsed from the death of the ancestor to the time of the commencement of this suit, during which time the widow, now wife of the defendant, who was the person entitled, had declined to administer. It appears to have been determined between the only parties interested in the estate, the widow and heir, that there being no debts, and hence no creditors to be affected by the proceedings, there was no necessity to incur the trouble and expense of administration, and that the estate should bo partitioned amicably, resorting to the probate court to render the distribution legal and effectual. The parties appear to have acted upon tiffs mutual understanding until a controversy arose as to the legal ownership of the property now in suit. The wife of the defendant was entitled to the administration in preference to the Heir, and she asserted a elaim to the property inconsistent with the interest of the latter. It is not pretended that the estate was indebted, or that administration was necessary for any other purpose than the distribution of the estate between the widow and heir; and between them a controversy had already arisen, from which it was sufficiently apparent that the former was not the proper person to be intrusted with the protection and maintenance of the rights of the latter in respect to this property. Under these circumstances we are of opinion that it was *97competent for the plaintiff, as guardian of tlie infant, to maintain this action. A subsequent grant of administration to the wife cannot, we think, under the circumstances! affect tlie. question. It is unnecessary to enter upon the consideration of the question as to tlie right of tlie heir, under other circumstances than tile present, to maintain an action to recover the personal property to which ho may be entitled by inheritance. Tlie remaining' questions presented by the record' which it is deemed material to consider relate to—
1st. Tlie instructions to tlie jury.
2d. The refusing of a new trial.
The instruction objected to as erroneous is that given as an addition or qualification to tlie first and third instructions asked by the plaintiff; that is, ‘‘that if tlie jury believe tiiat the parties intended to remove to Texas at the time of their marriage, and immediately did remove to Texas, their respective rights must be determined according- to the laws of Texas.”
Was this instruction, as applied to the facts of this case, correct? The parties liad resided in the State of Tennessee up to tlie time of tlie marriage. There was no express nuptial contract. Had there been no subsequent change of domicile, the laws of Tennessee would doubtless have governed in respect to the. property now in controversy. “Perhaps (says Story) the most simple and satisfactory exposition of the subject, or at least that which best harmonizes witli the analogies of the common law, is tiiat in the case of marriage, where there is no special nuptial contract and there lias been no change of domicile tlie. law of tlie place of celebration of the marriage ought to govern the rights of the parties in respect to all personal or movable property wherever acquired and wherever situate.” (Story Oonf. of L., sec. 159; 5 Mart. N. S., 569.) After examining the adjudged cases and opinion of jurists as to what is the principle to be adopted in cases where there has been a change of domicile, the siune distinguished jurist says: “Where the place of domicile, of’both tlie parties is the same with that of tlie contract and the celebration of tlie marriage, no difficulty can arise. The place of celebration is clearly tlie matrimonial domicile.” (Story Conf. L., sec. 192.)
The. facts of the present case bring it within the case and principle here stated. Put it is insisted that tlie fact of tlie intention of the parties to remove to and reside in this State takes this case out of tlie rftle, and that tlie marital rights of the wife in respect to properly acquired before as well as after the actual change of domicile are to be governed by tlie laws of this State. In support of this proposition, which was in effect asserted in tlie instruction.,in question, several authorities have been cited. Those cases which were dc,ter+ mined upon express nuptial contracts, not being applicable to the present case, it will not be necessary to notice. But the cases principally relied on by tin appellee, and those which seem most to favor the doctrine asserted by the instruction given, are the oases of Le Breton v. Noncher, (3 Mart. R., 60,) and Ford’s Curator v. Ford, (2 Mart. R., N. S., 574.) In the former case the paw ties to the marriage were domiciliated in Louisiana and the. female was. but thirteen years of age. They ran away and went to Natchez,' in Mississippi* without the consent of tlie parents or guardian of tlie female, and were there married, and soon after returned to the place of their original domicile in Lorn isiana, where they resided until the deatli of tlie wife. The Supreme Court of Louisiana held that the conjugal rights of the parties were to be governed.hyi the laws of Louisiana. In their opinion tlie court say: “A parly to this maw l-iage was one of those individuals over whom our laws watcli with particulaq care, and whom they have subjected to certain incapacities for their own safei ty. She. was a minor. Has she, by fleeing to another country, removed those; incapacities? Her mother is a citizen of this State; she herself was a girl, ofi thirteen years, who had no other domicile than that of her mother. Did she not remain, notwithstanding her flight to Natchez, under the authority, of this government? Did not the protection of this government follow her *98wherever she went? Again the court say: “The law of nations is law at ISTatchez as well as at Few Orleans. According (o tlie principles of that law, jiersonal incapacities communicated by the laws of any particular place accompany the person wherever lie goes. Tims lie who is excused the consequences of contracts for want of age in his country cannot make binding contract in another. Therefore, even if this ca.se were pending before a tribunal of the Mississippi territory, it is lo be supposed that they would recognize (lie incapacity under which Alexandrine Dussnan was laboring when she'contracted marriage, and decide that such marriage could dot have the effect of giving her husband what she was forbidden to give. If that be sound doctrine in any case, liow much more so must it be in one of this nature, where the minor, almost a child, has in all probability been seduced into an escape from her mother’s dwelling and removed in luiste out of her reach.”
The brief statement given of Ihe facts in that ease, and these extracts from the opinion of tlie court,'‘will suffice to show that it bears no analogy and admits of no comparison'to the present in its facts, and that the grounds and reasons npon which it was decided are wholly inapplicable to the case before us.
In the case of Ford’s Curator v. Ford the facts were that the husband resided in Louisiana and the wife in Mississippi previous to the marriage, which took place in the latter State. The property in controversy consisted of slaves which belonged to the wife before marriage, and a portion of which had been hired and taken by tlie husband to Louisiana before that time. Tlie husband had at the lime a furnished house and farm in Louisiana, and had sent to remove his intended wife’s property there before the marriage. She had resided with her brother in tlie State of Mississippi; she left that State for Louisiana the day after tlie marriage, and had previously expressed her intention to reside permanently in the latter State. The court held that the husband did not by the marriage acquire a right to the slaves of the wife,'and that her marital rights were to be determined by the laws of Louisiana.
This case also differs from the present in the material fact that previous to the marriage tlie domicile of tlie husband was in Louisiana. There are some general observations in tlie opinion, and reasoning of the court which are supposed to maintain tlie doctrine contended for in this case, but they must be understood in reference to the facts of tlie case then present to tlie mind of the court. And that the fact of the domicile of the husband being in Louisiana materially influenced the decision is evident from the following language of the court: “When tlie husband and wife have different domiciles, it is to the law of the husband’s domicile that tlie parties ought to be presumed to have submitted ; because the wife, who by her marriage follows tlie husband’s domicile is presumed to have had in view the law of that domicile, which by tlie marriage is to become hers. The general rifle is to attend to the law of the husband's domicile rather than that of the place in which the contract is entered into.”
This case, therefore, which goes farther to favor the doctrine contended for than any other which lias been' cited or with which we are acquainted, is by no means an authority for that doctrine in its application to a ease like tlie present. On the contrary, it is, we think, to bo inferred from the language of the court which we have quoted that had the husband been domiciliated in Mississippi at the time of the celebration of the marriage, the decision would have been different. Both parties to the marriage in the present case resided in Tennessee at the time of its celebration. Tlie most that can he said is that they intended to establish their future residence in Texas. To hold that this mere act of volition or intention could change and fix their matrimonial domicile in Texas previous to any act corresponding with that intention, any. actual change of residence, would, it is believed, be going further than courts have ever gone. It would certainly be going very much further than tlie Supreme Court of Louisiana have gone in the cases we have examined.
Although actual residence is not indispensable to retain a domicile once acquired, but it is retained by'the mere intention not to change it or to adopt another, yet the act and the intention must concur to enable a party to acquire *99a domicile. “Two things,” says Story, “must concur to constitute domicile: first, residence; secondly, tlie intent,ion of making it the home of the party. There must, be the fact and the intention; for, as' Potliier has truly observed, a | vrsou cannot establish a domicile in a place ev ept it be animo et facto.'''’ (” -ni. of L., sec. 41.) Again, “The mere mtentu..’ to acquire a new domicile ••.iihotil- the ¡'act of an actual removal, a vails non.mg.” (Id., sec. 47.) And a-’;.¡'n. “A domicile once acquired rema- until a new one is acquired. It is i •i '.-time.: laul down that a person in- y lie wi;l: ut any domicile; a« if he C’lma pin with an intention to fix ii- mMth-r ,-lace, it lias been said that v. hilo he i- i,i transitu he has no doin'-lio. But the more correct principle •\wuild worm to bo that the original domicile is not gone until a new one has been actually acquired facto et animo.” (Ib.; Heir's of Holliman v. Peebles, 1 Tex., R., 639.)
The national domicile of these parties was, we think, unquestionably in the State of Tennessee; and we are aware of no principle which, under the circumstances, would justify the conclusion that their matrimonial domicile was elsewhere. The. question must be the same, depending for its solution upon the same, facts and the same principles of international law, which, to borrow the expression of the Supreme Court of Louisiana in a case cited, is law in Tennessee as well as in Texas, whether to be determined by the courts of that State or this; and there cannot, it is conceived, he a doubt as to how the question must liavc been decided had it been raised in the courts'of the former State.
We conclude that the matrimonial domicile of the parties to this marriage was in the State of Tennessee, and that previous to the acquisition of a domicile facto ct animo by the husband in this country the laws of that State must furnish the rule of decision as to their marital rights. Their rights as to all property acquired in this count ry after their removal to it must unquestionably be governed by our laws. (Acts of 1840, 6, sec. 13.) In its application to the facts of ibis case, we therefore conclude that the instruction in question was erroneous.
The. consideration of this question was not, perhaps, absolutely necessary to the disposition of tlie present case; but it is presented by the record, and is the question which, was principally discussed in argument; and as counsel have concurred in expressing a desire that it should be decided, in tlie belief that its decision may prevent further litigation between the, parties and induce a speedy determination of their respective rights, it was deemed proper now to dispose of it.
But tlie disposition of the case might have been determined by the decision of the remaining question, which is, did the court err in refusing a new trial ?
It appears to have been proved conclusively that the negroes in controversy in this suit were either tlie property of James McIntyre at the time of marriage or were the proceeds of land owned by him pirevious to that time ; that is, tliey were received in payment of money due upon tlie sale of the land with the exception of the girl Elvira, which was tlie-child of a woman owned by him previous to tlie marriage, and tlie infant child of Eliza. In Louisiana it is held that by the Spanish law, on the dissolution of marriage; everything holdon by the husband and wife is presumed to he. common property, unless proof be made of its being particular or individual property. (7 Mart. R., 362.) But this presumptiou may of course he overborne by proof that the fact is otherwise.
The Supreme Court of that State have said that by the Spanish laws everything purchased during the marriage fell into the common stock of gains, and at the ileat.li.of either of the parties'was to be divided equally between the survivor and tlie heirs of the deceased; and that this effect was produced, whether purchases were with the money or capital of the community or with that of cither of the married parties, whether in the name of botli or that of one of them separately; but that to this rule there were many exceptions. (1 La. R., 522.) “The rigor of the law (the court say) which declares that property acquired during marriage shall be considered as common to both husband *100and wife, although purchased with (he separate funds of one of (.hem, is applicable only to acquisitions made by purchase, and does not necessarily include thing's which may he received by either of (hem in payment of money due to them on their separate and individual right.” (Id., 523.)
Note 30.—Lacy v. Williams, 8 T., 182; Fisk v. Norvell, 9 T., 13; Finch v. Edmonson, 9 T., 504; Hurt v. Horton, 12 T.. 285; Cochran v. Thompson, 18 T., 652; Patton v. Gregory, 21 T., 513; Sanders v. Devereux, 25 T. Supp., 1; Giddings v. Steele, 28 T., 732. Note 40.—Chappell v. McIntyre. 9 T., 161; Hall v. Harris, 11 T., 306; The State v. Barron, 14 T., 179; Keyser v. Pilgrim, 25 T. Supp., 217; Oliver v, Robertson, 41 T., 422. Note 41.—The State v. Barron, 14 T., 179. Note 42.-Love v. Robertson, 7 T., 6; Huston v. Curl, 8 T., 239; Chappell v. McIntyre, 9 T., 389; Rose v. Houston, 11 T., 324; Chapman v. Allen, 15 T., 278; Higgins v. Johnson, 20 T., 389; Dunham v. Chatham, 21 T., 231; Story v. Marshall, 24 T., 305; Smith v. Strahan. 25 T., 103; Mitchell v. Marr. 26 T., 329; Cooke v. Bremond, 27 T., 457; Tucker v. Carr, 39 T., 98; Johnson v. Burford, 39 T., 242; Carr v. Tucker, 42 T., 330.If (he general rule here, staled he. conceded, the property acquired in the, present ease is embraced within the. exception. And this accords with the second instruction given to (he, jury at the. instance of the. plaint id. Under the law, as given in charge to the jury by that instruction, (which was, it is conceived, correct.) and the evidence, the plaintitl' was entitled to recover; yet the jmy returned a verdict for the defendant. The verdict, therefore, was manifestly against law and evidence, anil ought to have been set aside, and a new trial granted. The instruction did not embrace increase of the slaves owned by James McIntyre previous to the. marriage or acquired in his individual right iiitenvards, hut there can be no question that such increase, under law must; go to the heir, and is not a part of the community. (Acts of 1840, 4, see. 4; Acts ,of 1848, 77, sec. 2.)
Judgment reversed.