(dissenting).
I regret that I cannot agree with the other members of the Court in the 'disposition that has been made of this appeal. As shown by the opinion, they have held that appellant, Mrs. Stone, was not entitled to the benefit of our four-year statute of limitation, Article 5527, R.C.S., under her claim that she was a nonresident of the State at the time the cause of action arose and continuously thereafter until the note upon which she was sued was barred by the four-year statute of limitation. The conclusion is based solely upon that portion of her testimony that is copied in the opinion. The most that can be drawn from that testimony is that at all times after she left the State in 1924 she considered herself a citizen of Texas, claimed Texas as her home, and that although she married in Virginia and lived thereafter with her husband in Maryland and at Washington, D. C. for fourteen years, her absence from this State was only temporary and she claimed Texas as her home during all of that time. They state that it is evident she is a woman of intelligence and knows what she is talking about.
The statute invoked by the appellee, Article 5537, provides that “If any person against whom there shall be cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person’s absence shall not be accounted or taken as a part of the time limited by any provision of this title.”
Appellant married in Virginia on April 21, 1928. The note became due and the cause of action arose on November 1, 1928. She lived in Washington, D. C. at the time of her marriage but it may be conceded, under her testimony, that during her residence there before she married she was a resident of Texas and was temporarily absent. While she was a single woman she undoubtedly had the right to establish her own residence and her intention during that time was an important element, but the cause of action did not accrue until after she married. When, she married, her legal and social status underwent a complete change,- and the mere fact that she claimed Texas and Runnels County as her home after that has little or nothing to do with her legal status or residence during the years after she married and while she was domiciled with her husband in other States and at other places. In addition to the legal presumption that she lived during all of that time with her husband, the testimony is replete with un-contradicted evidence that she did so. It shows that they married in Virginia on April 21, 1928. She said she sent money to her mother before her mother’s death on May 7, 1941, and that her husband also sent money to her mother and that he paid some of the insurance. She said that she lived in Washington, D. C., in 1933, that she then moved to Maryland, and that her husband lived in Maryland at the time of the trial. Several weeks after her mother died in 1941, and while she was still in Texas attending to the business affairs made necessary by her mother’s death, she said she was in a hurry and wanted to get back to her husband. There is not a line of testimony that her husband ever lived in Texas nor that he ever had the slightest intention of doing so. It is not claimed by appellee, nor shown by the statement of any witness, that appellant and her husband did not live together constantly from the day of their marriage until this suit was tried, a period of fourteen years. I do not find anything in the testimony that would warrant the conclusion that Mrs. Stone is living in Texas now or that she has had her residence in Texas since the death of her mother. Her testimony showed that she and her brothers had considerable disagreement with reference to the property owned by her mother, which delayed her return to Washington where she was working, although living in Maryland only a short distance from Washing*161ton. She said that it had been several weeks after her mother’s death and it was in connection with this delay that she said she wanted to get back to her husband. She said that she did not get to discuss the business matters with her relatives until the eighteenth of July, 1941. This suit was filed September 8, 1941, and tried at a special term of the court in June, 1942. The only testimony in the record that would warrant the conclusion that she has lived in Texas, in the sense that her residence has been in this State, since the death of her mother is her own statement that she had been a resident of Texas ever since her marriage, and the fact that she seems to have been forced to remain here to settle the affairs of her mother’s estate and prepare for and attend the trial of this case. The petition of appellee alleges that the appellant, Mary Phillips Stone, resides in Runnels County, Texas; that Aaron Stone is her husband; and that he resides in Washington, D. C. It is not alleged, nor is it claimed by appellee, that Mrs. Stone and her husband were living separate and apart from each other, and the majority state in their opinion that there is no showing in the testimony as to the residence of the husband except “now” which was Maryland. Mrs. Stone did not testify that she ever entertained the intention of returning to Texas at any time. Her testimony consisted of nothing more than her own ideas of her residential status. Regardless of what she may have thought or believed as to the locus of her residence or citizenship, the law has established it for her, and her thoughts or conceptions as to what it was could not work a change in the established law.
It has been the law in Texas ever since the Constitution of the Republic was adopted that the domicile of the husband is the domicile of the wife. McIntyre v. Chappell, 4 Tex. 187; Russell’s Heirs v. Randolph, 11 Tex. 460. In Henderson v. Ford, 46 Tex. 627, decided in 1877, our Supreme Court said: “By the marriage, as has been said, Mrs. Bohanon acquired a domicile in Texas.” Two years later, in Clements v. Lacy, 51 Tex. 150, the same Court said: “From the above and the direct authority of this case on the former appeal, (36 Tex. 661), we deduce the familiar principle, that the domicil of the husband draws to it the legal domicil of the family.” In Williams v. Moody, 35 Minn. 280, 28 N.W. 510, 511, the Supreme Court of. Minnesota said: “As head of the famify, it is for the husband to determine and fix the domicile of the family, including that of the wife. His domicile is therefore her domicile; so that when he and his wife remove from a homestead, he having no intention of returning, that fixes the character of the removal as an abandonment, for the intent of the husband as head of the family controls, and he has the right to determine whether there shall be a return or not.”
In the recent case of Harwell v. Morris, Tex.Civ.App., 143 S.W.2d 809, 816, this Court repeated the principle that has been stated many'times by our own courts, and said: “It has never been the law in Texas that the residence of the husband is drawn to that of the wife where they happen, for a time, to be at different places.”
In Anderson v. Watts, 138 U.S. 694, 11 S.Ct. 449, 452, 34 L.Ed. 1078, Chief Justice Fuller, speaking for the Supreme Court of the United States, said: “The place where a person lives is taken to be his domicile until facts adduced establish the contrary; and a domicile, when acquired, is presumed to continue until it is shown to have been changed. [Citing authorities]. And although the wife may be residing in another place, the domicile of the husband is her domicile. * * * Even where a wife is living apart from her husband, without sufficient cause, his domicile is in law her domicile. * * * The rule is, said Chief Justice Shaw, * * * ‘founded upon the theoretic identity of person and of interest between husband and wife, as established by law; and the presumption, that from the nature of that relation, the home of the one is that of the other, and intended to promote, strengthen and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail.’ ”
In Richmond v. Sangster, Tex.Civ.App., 217 S.W. 723, 728, this Court held that “In Texas the erring wife cannot fix the domicile of the husband, Speer’s Law of Marital Rights, §§ 72, 73, 403. There is not a line of evidence in the record which even remotely tends to show that the appellee ever fixed, * * * his residence at Dalhart, Tex.” If an erring wife cannot fix the residence of the husband, then no other wife can do so. In that case, as in this, the burden rested upon the plaintiffs to prove the fact of the defendant’s residence in Texas. In the instant case the appellant discharged her burden of establishing the fact that the note was barred by limitation. The note itself was sufficient to show that. Ap-*162pellee then alleged and attempted to show that the appellant was at all times a resident of Texas but that she had been temporarily absent from the State a sufficient length of time which, if deducted from the time that had elapsed since the note was due, would bring the note within the limitation period, as provided by Article 5537, R.C.S.1925. Since the residence and domicile of appellant was that of her husband, it was the burden of appellee to establish the residence of the husband to be in Texas. This was not done. In fact, the allegations in appellee’s petition and what little evidence there was as to the place of his residence were to the contrary. It is certain, however, that at no time was he ever a resident of Texas.
While it is true that in all of the cited Texas cases the parties involved had removed from other States to Texas, the principle of law cannot be different in a case like this, where the removal was the reverse, i. e., from Texas to another State. The principle that the residence of the wife is controlled by that of the husband was adhered to by the common law and it is unquestionably the law in Texas. Since there was no allegation or proof to the contrary, if it is material, we must assume that the laws of the States and jurisdictions here involved are the same as those of this State. Kinney v. Tri-State Tel. Co.', Tex. Civ.App., 201 S.W. 1180; Thompson v. Thompson, Tex.Civ.App., 202 S.W. 175. The statute, Article 5537, which suspends the period of limitation during the absence of the debtor, has no reference to one who was a nonresident of the State at the time the cause of action arose, nor to one who, although having been a resident, was a nonresident and absent from the State when the cause of action arose and did not return within the period of limitation. Ha-bermann v. Heidrich, Tex.Civ.App., 66 S. W. 106; Alley v. Bessemer Gas Engine Co., 5 Cir., 262 F. 94; Simonds v. Stano-lind Oil & Gas Co., 134 Tex. 332, 114 S.W. 2d 226.
I am persuaded that the matter here involved is one of deep concern to the jurisprudence of the State. In most of the cases where the question has been at issue, landed and other property rights were involved, and particularly the question of whether land and other property acquired by the husband in Texas belonged to the community under Texas law or to the husband under the rule of common law that ■prevailed in the States from which the litigants or their ancestors migrated. The issues were determined upon the question of the residence of the parties and, as shown by the authorities I have cited, and many others that could be cited, it has invariably been determined by ascertaining the place of residence of the husband when the property was acquired. The well-established rules of law relating to matters of such import ought not to be embarrassed by a holding that the residence of a married woman may be established by proof of her expressed ideas and conceptions of her legal status in that respect.
In my opinion, the plea of limitation asserted by appellant should have been sustained and the judgment of the court below should be reversed.