Concurring as I do entirely in the opinion and judgment of the Court, I am nevertheless desirous of presenting some further views upon the question of domicil, ■ which has been considered of so much importance in the determination of this cause.
. Sundry distinctions have been taken in-the books, in re*200gard to tbe various character and different descriptions of domicil, arrising under local statutes, and Mr. Phillimore, in his work on the subject of domicil, expresses with great propriety his regret that the term had ever been applied, in legal parlance, to any other than the domicil of succession, as regulated and defined by the great code of international law. All other domicils are merely local, and prescribed by local laws, imposing certain duties, or conferring particular privileges, on the precise conditions of residence or inhabitancy whiclrthey define; and it is man-fest that the questions arising under these local laws, and the adjudications had thereupon, must turn upon their construction, and the duty imposed or privilege granted abide the result. With this class of cases we have, at present, nothing to do. Our enquiry is, what, by the law of civilized nations, constitutes such an incorporation of an individual with the mass of citizens of a particular State or country, as will make the local law of such State or country the rule of succession to his personal estate.
Neither elementary writers nor learned judges have succeeded in supplying a definition of this description of domicil which has generally obtained; and it would appear, upon a review of the authorities, that it would prove a much easier task to define what does not, than what does, constitute domicil of this sort. Without, therefore, attempting to furnish a definition, which jurists have not yet satisfactorily accomplished, we may venture to say, that the domicil of nativitjq or of origin, remains until changed, and that three things must necessarily concur to effect such change:
First. The original domicil must be abandoned, in purpose and fact;
Secondly. A new domicil must be obtained, de facto et animo ; and
Thirdly. There must be an intention to remain at the *201new domicil an indefinite time, of, in other words, no present purpose of departure therefrom.
These several propositions are questions of fact, and are to be tested by the evidence, according to the rules of the common law. Each and all of them contain two elements, the one of éxternal fact capable of the observation of the senses, the other of mental purpose, only to be reached by á full consideration of the significance of the acts done, the opinions and purposes disclosed in the writings ánd correspondence of the deceased, and the evidence of his oral declarations in relation to his intentions.
Guided by these principles, we proceed to the enquiry ¿rising oh the first point, whether Hardy B. Groom did actually form and execute the purpose of removing his domicil of succession from the State of North Carolina to the Territory of Florida. There being no imputation of fraudulent or sinister objects in the writings and correspondence of the deceased, and no direct impeachment of the credit and integrity of the witnesses, we may consider the testimony more or less valuable in the ordér in which it has been stated, and to be estimated accordingly.
What, then, upon a full survey of the vast mass of testimony presented to the Court, were the acts done by Hardy B. Oroom, in reference to this alleged change of domicil? Such acts, if not conclusive in themselves, must necessáfily be subject to the explanations afforded by simultaneous'written and oral declarations 'on his part. We find that he was a native citizen of North Carolina, residing with his family at Newbérn, in that State; that he was a gentleman of liberal education, and' trained for the bar; that he derived a handsome fortune from his father,Wm. Oroom, and intermarried with the daughter of Nathan Smith, of Newbern, by whom he received a considerable accession thereto; that he ¿planted in Lenoir county, North Carolina, ánd once represented that county in the *202Senate of Ms native State; that he had a taste for the natural sciences, and was particularly fond of botanical studies ; that in the fall of the year 1831 he sold out his plantation in Lenoir county, and in that and the following year removed his plantation negroes to the Territory of Florida, and purchased and settled a plantation therein, where he planted with success ; that he spent much of his time during the winters, subsequent to the removal of his planting interest to Florida, in superintending that interest, traveling south and west to see the country and choose a home, and in pursuit of his favorite amusement of botanizihg;'"'tkat in the years 1833 and 1834 he voted at the territorial elections in Florida, but never removed his family, his domestic servants and furniture to Florida, but returned, after each annual visit to Florida, to them at his original mansion house in Newbern, where they, continued to reside.
Upon this state of facts, without reference to further evidence, it is contended that the act of voting in Florida was conclusive on the question of domicil. But this is not necessarily the case. Conceding that 'Mr. Croom was a gentleman of integrity, the exercise of the elective franchise, on his part, under the territorial law prescribing the qualifications of voters in Florida, would only justify the conclusion that he considered himself possessed of such qualifications. It is simply an act equivalent to a declaration on his part that he was thus qualified. Such declaration, however formally announced, could not have been, conclusive even as to the right to vote, because Mr. Croom was not the legally authorized and final judge of his own qualifications as a voter, much less could it be conclusive on the question of a domicil of succession, which might require other circumstances and conditions not imposed by the local election law, to make out a case in conformity with the public law. And, further, it may be safely as*203serted that even the most direct and positive declaration that one’s domicil of succession was within a certain jurisdiction, could not conclude that question when it was unsupported by the facts and circumstances necessary to establish such domicil. That the effect of such declaration, even if made by Mr. Croom, would be in a great measure obviated by counter declarations made to the witnesses Burguin, Mrs. Winthrop and Mrs. Bice, in which Mr, Croom is not merely expressing his opinion of his rights as a voter in Florida, but declares expressly his intention of continuing his residence and domicil at Newbern. The cases which have been ruled upon the local statutes, it has been already shown, have no bearing upon this question, except in so far as a local statute may prescribe the same conditions, for some other purpose, which are necessary to be found,¡according to the jus gentium, to establish a domicil of succession. To this extent they .are entitled to consideration, but no further. The history of our own Legislation, in relation to the qualifications of voters, may well illustrate this.
By the Act of Congress, approved the 30th March, 182.2, establishing a Territorial Government in Florida, it is provided that the citizens of said Territory shall be entitled to one delegate in Congress; and, further, that “the said delegate shall be elected by such description of persons, at such times and under such regulations, as the Governor and Legislative Council may, from time to time, ordain and direct.”
By virtue of such authority, the Legislative Council, by the 13th section of the Act of Feb,, lüí:'-, pv ■’ “'Giafc all whi:.c male inhabitants, citizens oí tüe United tótates, above the age of twenty-one years, who have resided in the Territory of Florida for the space of three months immediately preceding the day of election,” may vote, — « *204Duval Comp. 347. It was under this act that, in May, 1833, and in 1834, Mr. Croom. voted. .
After the admission of the Territory as a State, by the Act of the General Assembly of 1846, (Thomp. Dig. p. 71,) new and far more restrictive qualifications of voters are prescribed. This act provides that “ every free white male person of the age of twenty-one years and upwards, and -who shall be, at the time of offering to vote, a citizen of the United States, and who shall have resided and had his habitation, domicil, home, and place of permanent abode in Florida'for two years nest preceding the election at which he shall offer to vote, and six months in the County,” * ** “ and who shall be enrolled in the militia thereof, unless exempted by 1,a,w from serving in the militia,” shall be’deemed a qualified elector. It is apparent, upon the slightest comparative view of these statutes, that such “ description of persons ” as might have voted under the provisions of the act of 1833, could not exercise that privilege'under the more stringent enactments of the statute''of 1846 ; arid that, although the latter act prescribes; conditions which might fulfil the requirements fox; a domicil of succession on the part of a qualified voter under it, it by no means' follows that the same consequence would Result in behalf of one qualified to vote under the former act.'
It is not then the mere right to vote, which may be conferred or withheld at the pleasure óf tlxe law-giver, and xip.on conditions light or onerous, still less is it the exex’cise of that n’ght under a local election law of doubtful import, that can fix the domicil of succession. The act of voting, therefore, being in its vei’y nature inconclusive on the question of domicil, does not impose upon the complainants, as suggested in the ai’gument, the necessity of explaining it away upon the ground of fraud or mistake. It jg but one arixong the many acts and declarations of the de? *205ceased illustrative of his purposes and intentions, and should have its proper weight only in such connection.— But it should be considered that Mr. Croom was an educated lawyer, and that any manifestation of an actual abandonment of his domicil in North Carolina, to be deduced from his act of voting in Florida, must depend upon his own opinion of the question whether the exercise of such privilege in Florida amounted to a forfeiture of his domicil in North Carolina. There is nothing to show conclusively what were his views on this subject. But there is ample authority in the books, which will be cited hereafter, for the opinion that such would not have been the legal result. The hypothesis that he entertained this opinion, is more plausible than that he adopted a contrary view of the subject. His subsequent declaration of purpose to remain at Newbern until he found a better home, and his final determination to settle at Charleston, show this. The act of voting in Florida is therefore as inconclusive on the question of intention to abandon the original domicil, as it has been shown to be in relation to tbe/aci of abandonment itself. The view of the argument in favor of the Florida domicil consists in a transposition of the order of events. There could be at the same time but one domicil of succession, and the abandonment and desertion of the existing domicil is a material and necessary condition precedent to the acquisition of a new one. But the argument reverses the natural order of events necessary to effect a change of domicil, and claims that by the exercise o£ the political privilege of voting in Florida, Mr. Croom acquired a domicil, and this worked, by legal intendment, a forfeiture and abandonment of his original domicil, and then proceeds, as in a circle, to claim that such abandonment of the former domicil is sufficient to establish a new one here. If the fact of voting then does not establish the further and material fact pf the actual abandonment of the North Carolina domicil, *206by what other act of Mr. Groom’s is such abandonment made manifest ? We look in vain through the testimony for any such act. His family and his homestead were never broken up and removed to the day of his death, whatever may have been bis intentions, whether fixed and permanent, or vague and vacillating.
The right to vote might well have been confei’red by a Territorial Council, acting under an organic law of Congress, from which it derived its sole authority, upon a citizen of the United States, on condition of a brief residence in the territory. The enactments of a Territorial Legislature emanate in effect from the Federal power, because it is the source of their authority and retains the power to annul them. The qualification of voters in the Territory of Florida, in the years 1838 and 1834, may well then be considered as having been sanctioned by Federal authority. The. Territory had no existence as a State and no vote in Congress, and the entire argument, therefore, based upon the idea of State sovereignty and [a divided allegiance, has no application to the case.
In the history of tbe government, it is no new thing that citizens of the United States, and even aliens, should be permitted to vote in the territories. This practice commenced as far back as tbe Ordinance of 1787, and has been continued, under various circumstances, down to tbe late organization of tbe Kansas Territory. It was accorded to tbe Spanish population of Florida, under tbe treaty of cession, and soon after to all citizens of the United States upon three months residence therein. That the exercise of such privilege in Florida would not necessarily and by operation of law work a renunciation and forfeiture of a domicil of succession elsewhere, is sustained by the following authorities : 1 Curtis, 856 ; 2 Binn., 110-118 ; 2 Scam., 392; 10 Mass., 488; 3 Greenleaf; 11 Mass., 350; 10 Mass., 500-501; to flie'doctrind'of which the authorities cited on the other side *207are reconcilable. It does not appear then that Mr. Orpom, by any positive act of his, either in fact or by legal intendment, renounced his original domicil in North Carolina, without which no new domicil could be acquired. And here we might well rest the argument. But, inasmuch as a most interesting history of Mr. Groom’s life has been submitted to the Court in his correspondence and conversations with his family and friends, from, the period of his first operations in Florida to the hour of his fatal embarkation with his family on the Home, it becomes necessary that it should be examined in order that it may appear whether it contains anything to give a new color or construction to the acts under consideration. The Court has given a very patient and full consideration to this history in all its bearings, and I am well content with its conclusions.