(concurring.) While agreeing that the judgment in this case on the .merits should be affirmed, I am unable to give assent to the view of the law as expressed in the majority opinion. As I understand this opinion, it is to the effect that the residence necessary to qualify an executor is simply actual residence or presence within the state at the time application for appointment is made. If by actual residence it is meant to hold that the person must at the time of applying for letters be a bona fide resident of the state, I would give ready assent to that. But the majority opinion, as I read it, does not require actual, bona fide residence within the state, but simply physical presence of the applicant for letters at the time the application is made. I am forced to this conclusion, because the opinion states “actual residence and presence within the state” is all that is required, and an attempt is made to distinguish this case from the case of In re Petition Marion Mulford, 217 Ill. 242, 75 N. E. 345, 1 L. R. A. (N. S.) 341, 108 Am. St. Rep. 249, 3 Ann. Cas. 986. I think all who read this opinion will come to the conclusion that it is meant to hold that residence as generally understood is not required of the applicant for letters testamentary under our statute. I do not believe there is any basis for the attempted distinction, for the statute of Illinois (section 66, Li. Stat. Ann. 1913) provides “that no nonresident of this state shall be appointed or act as administrator or executor,” which means substantially the same thing as our section 2223 in this regard. It is true they have no provision similar to our section 2243,-to the effect that a person may become a resident of the state after the probate of a will in which he is named as executor, whereupon he is eligible for appointment. But I cannot see how this provision can have the effect upon the other provision ascribed to it in the majority opinion. In the case of In re Mulford, 217 Ill. 242, 75 N. E. 345, 1 L. R. A. (N. S.) 341, 108 Am. St. Rep. 249, 3 Ann. Cas. 986, Marion Mulford has been named as executor of the will of Harriet M. Richards. The testator was a resident of the county of Will in the state of Illinois. Mulford was a resident of Ohio. He testified that he was 71 years old, and had a wife and two daughters with whom he resided in Dayton, Ohio, when the said Harriet M. Richards died. That he lived with his family on homestead, property owned by himself, and which he had not abandoned; that he had come to Illinois with the fixed purpose and intention of accepting the executorship of this estate and of remaining within the jurisdiction of the court until the estate could be administered upon in accordance with the will, and that he still retained that fixed purpose, whatever time might be required therefor. • After reciting the above facts, the court said:
“Nevertheless, the appellant is a resident of the state of Ohio. Residence is lost by leaving the place where one has acquired a permanent home and removing to another place without a. present intention of returning. 24 Am. & Eng. Ency. of Law (2d Ed.) 697. ‘A temporary sojourn within a state for pleasure or business, accompanied by an intention to return to the state of one’s former inhabitance, does not constitute residence.’ Pells v. Snell, 130 Ill. 379.
“The court did not err in refusing to issue letters testamentary to the appellant.”
In an earlier case (Child v. Gratiot, 41 Ill. 357), and before the enactment of the provision that no nonresident should be appointed or act as administrator or executor, the court held that a nonresident could not legally be appointed because of the provision of the statute which authorized the removal of an executor who became a nonresident of the state.
Other states have statutes prohibiting the. appointment of 'a nonresident. The majority opinion seems to attach importanc to thé use of the word “bona fide” resident in the California statute. I attach no importance to this as I assume that when the word “resident” is used in a statute it necessarily means a bona fide resident.
Arkansas has a statute (section 14, Kirby & Cassell’s Digest of the Statutes of Arkansas 1916) which, as our statute, uses the term “nonresident,” and provides that a nonresident is not eligible for appointment. Likewise Missouri, section 10, R. S., 1919. Under this statute, in the case of Stevens v. Larwill, 110 Mo. App. 140, 84 S. W. 113, the court held that a nonresident coming into the state and being appointed must come with a bona fide intention of becoming a resident of Missouri. Georgia has a similar statute, section 3941, Code 1914; likewise Montana, section 7436, Code 1907. The courts of all these states hold, so far as I am advised, that actual, bona fide residence within the state at the time, of appointment is essential.
I cite these for the purpose of showing that the importance attached to the use of the term “bona fide” in the California statute is not justified. Decisions under these statutes will be found collected in the note to the case of In re Mulford, 1 L. R. A. (N. S.) 341. See In re Bailey, 31 Nev. 377, 103 Pac. 232, Ann. Cas. 1912A, 743.
In our statute relative to venue in civil actions it is provided that transitory actions shall be brought in the county where the plaintiff or defendant, or some one of them, in case there be more than one of either, resides. If this does not require bona fide residence in the county by the plaintiff where he sues in such county, then it will be possible for the plaintiff to temporarily go to some other county in the state and there file the suit. To constitute residence, as 1 understand the term, there must be an actual home where the person intends to reside permanently, or for a definite or indefinite length of time, and residence depends upon fact and intention.
But, entertaining these views as I do, I am still of' the opinion that the judgment in this case should be affirmed. For the court found upon conflicting evidence that Joseph R. Wilson, on the 12th day of' October, 1918, which preceded his appointment, and ever since that date, has been an actual and bona, fide resident of the city of Albuquerque, county of Bernalillo, and under this finding his appointment as executor was justified. The fact that he came to New Mexico for the purpose of qualifying as executor under the will in question is not material, if in fact he came here with the intention of making-Albuquerque his home to the exclusion of all other places. As said by the court in the case of Stevens v. Larwill, 110 Mo. App. 140, 84 S. W. 113:
“The rule, is well established in every jurisdiction that the' motive or purpose of a change of domicile or residence is not material. The only question is whether the change of residence is made by the party with the bona fide intention of becoming a resident of another state.”
Here Wilson testified that he had given up his home in Philadelphia and had come to Albuquerque with his wife and daughters with the intention of making Albuquerque his permanent home, that he had either sold or removed his furniture and effects to Albuquerque, and had permanently abandoned his home in Philadelphia. The court had the right to believe this evidence offered by Wilson. It is true that witnesses testified to conversations with Wilson prior to this time which indicated that at that time Wilson contemplated making the change temporarily only, but it may be that thereafter he formed the fixed purpose and intention of permanently residing in Albuquerque. The evidence justified the finding. I do not attach any importance to the point made by .appellants to the effect that the enumeration of certain disqualifications of persons from becoming executors of wills by section 2223, Code 1915, does not conclude the court from refusing letters testamentary upon grounds other than those named in the statute, such as bad character, insolvency, and antagonistic interest, as 'the court did not refuse the letters. A different question might be here if letters had been refused on some other than statutory grounds.
The only other point requiring consideration is the refusal of the court to admit in evidence a letter written by Wilson to the legatee under a will, but the statement as to the contents of the letter in the offer of evidence, I think, shows that no prejudice resulted by reason of the refusal. The offer was to show that the letter in question written by Wilson to Mrs. Pauchet since the commencement of the proceedings to be appointed executor, and during Wilson’s sojourn in New Mexico, stated in substance that he was coming here — obliged to come here— solely for the purpose of protecting the interests of Mrs. Pauchet in this estate, and in connection with the properties of the estate. As I have attempted to show heretofore, the motive prompting his taking up his residence in New Mexico was wholly immaterial.
It is urged that the evidence in this case is of such a nature that it ought not to be held that there was substantial evidence offered to establish the bona fide residence in New Mexico of Joseph R. Wilson. I do not agree with this statement. The court had the right to believe Wilson if it so elected.
I agree that the opinion heretofore filed on the motion was erroneous, and for that reason consent to its withdrawal.
For the reasons stated, I concur in the affirmance.