
    THOMAS C. TRYON, Administrator, v. UNITED STATES ET AL.
    [Indian Depredations, 6486.
    Decided June 14, 1897.]
    
      On the defendants' Motion.
    
    The decedent, residing in Caiifornia, leaves there for Washington, bringing with him all of his personal property, consisting of drafts drawn on New York, and in a few days dies in a public hospital. The orphans’ court of the District of Columbia grants administration on a petition containing no allegation of a change of domicile, but setting forth that he died in the District, seized of drafts drawn by a bank in Santa Fe upon a bank in New York, and then deposited in a bank in Washington. This suit is instituted by the administrator. Subsequently administration is taken out in California by the same administrator and he now seeks to maintain the action by virtue of the second administration.
    I.Where a man leaves his domicile with an intent to return, though he remain abroad many years, doing no act legally inconsistent with the intent, there is no change of domicile.
    II.Where a man leaves his domicile with no expressed intent, and does not himself know whether he will or will not return, his domicile will continue until his acts and declarations indicate his intent to acquire a new one, or are inconsistent with an intent to return.
    III. Where a man leaves his domicile with no intent to return and with the avowed intent of acquiring a residence elsewhere, it will require little evidence to establish the fact of a new domicile, and neither the character of the residence nor the brevity of its duration will necessarily refute the presumption of a change.
    IV. A petition to a probate court in the District of Columbia averring that the decedent was lately a resident of California, and that he died in the District of Columbia seized of drafts drawn by a bank in Santa Fe on a bank in New York, which are on deposit in a bank in Washington, is not sufficient to confer j urisdiction. There must be either domicile or assets within the District.
    V.Where the property relied upon is a draft drawn by a bank in one State upon a bank in another, ancillary administration must be in the place where the debtor resides.
    VI.Since the decision of the Supreme Court in Chapman v. Barney (129 TJ. S., 677), it can not be doubted that this court may substitute a new claimant for the original claimant.
    Til. But where a person neglects to bring his own action, and suit is brought in mistake of fact by one purporting to be his administrator, he can not escape the consequences of his own laches by taking advantage of the unauthorized suit.
    
      
      The Reporters’ statement of the case:
    The facts upon which the motion is based will be found stated in the opinion of the court.
    
      Mr. Lincoln B. -Smith for the motion:
    The petition for the grant of letters shows that the drafts were drawn on the bank in New York by a bank in Santa Fe, N. Mex. It is not shown, either here or in the orphans’ court, whether such drafts were in the District of Columbia at the time of the intestate’s death. ■ This is, however, immaterial, as they would not be local assets for the purpose of founding jurisdiction to grant letters of administration, even if the papers themselves were found in the District. The evidence of a debt on a simple contract is local assets where the debtor has his domicile (N. F. Insurance Oo. v. Woodworth, 111 U. S,, 138; Oureton v. Mills, 13 S. Car., 409).
    In Chapman v. Fish (6 Hill, 654) it was held that the release of a debt, evidenced by a note, by an administrator in the State where the intestate died, can not affect the right of recovery in the administrator appointed in the State where the debtor resides.
    In Weaver v. Norwood (59 Miss., 665) it is held that if the personal property is a stock of goods and notes and accounts, administration is properly granted in the county where the stock is located, and where the debtors reside, their residence fixing the location of the debts.
    In Owen v. Miller (10 Ohio St., 136), relating to the seizure and sale of notes in New Jersey, the court said:
    “We are, then, brought to the simple question whether the promissory notes given for the debt being in New Jersey, and the makers of the notes, or the debtors, residing in Ohio, the property was in New Jersey or Ohio. In substance, there is a sum of money in the hands of one man to which another has title or claim, and the evidence of that title or claim is a promise in writing to pay the money. Upon principle it would seem to.be clear that the subject-matter to which the title or claim relates is the property, and not the evidence showing the title or claim.”
    In Yeoman v. Bradshaw (3 Salk., 70), Holt, Oh. J., said:
    “A bill of exchange shall be bona notabilia where the debtor is and not where the bill is.”
    
      In Attorney-General v. Bouwens (4 M. and W., 191), Holt, Cb. J., said, delivering the opinion of the court:
    “To prevent conflicting jurisdictions between different ordinaries with respect to choses in action and titles to property, it was established as law that judgment debts were assets for purposes of jurisdiction where the judgment is recorded, leases where the land lies, special debts where the instrument happens to be, and simple contracts where the debtor resides at the time of the testator’s death; and it is also decided that, as bills of exchange and promissory notes do not alter the nature of the simple contract debts, but are merely evidences of title, the debts due on these instruments were assets where the debtor lived and not where the instrument was found.”
    This doctrine was affirmed in Mondel v. Steele (1 Dowl., N. S., 157.) See also Slocum v. Sanford (2 Conn., 533) and Pinney v. McGregory (102 Mass., 186).
    Applying the law as established by these cases to the facts in this case, it appears that the bank drafts which are mentioned as the only assets of the intestate, were evidence of a debt payable in New York; and a grant of letters of administration in that State, founded on their existence, would be valid, as would also a grant under the general jurisdiction of the courts of claimant’s domicile in California. But the existence of that debt conferred no jurisdiction upon the orphans’ court of the District of Columbia, and in proceeding upon the contrary assumption that court acted without jurisdiction.
    It follows that the grant of letters of administration by the orphans’ court of the District of Columbia was void. No administration can be granted in any jurisdiction where there are no local assets. (Lyman v. Kallstead, 109 U. S., 654; King's and Rutherford's Oases, 27 C. Cls. R., 529, 539.)
    Such an appointment is not voidable but void. An ancillary appointment where there are no assets to which it can apply, is void. (Crosby v. Leavitt, 4 Allen, 410; Phinney v. McGregory, 102 Mass., 186,189; King v. United States, 27 O. Cls. R., 529.)
    If the letters of administration granted to Thomas 0. Try on, by virtue of which this suit was originally filed, were void, the suit was brought without authority and should be dismissed.
    
      Messrs. Ohaney & Garrison opposed.
   Nott, Ch. J.,

delivered the opinion of the court:

This is a motion on the part of the defendants to dismiss the suit of an administrator upon the ground that the orphans’ •court of the District of Columbia was without jurisdiction to issue letters of administration.

The claimant replies by a statement of facts which may be reduced to this brief recital: The- decedent left California non animo revertendi; the city of Washington was the intended terminus of his journey; he brought with him all of his goods and personal property, and he remained here until he died.

A man’s home may be a hotel, and his residence in a new place exceedingly brief, and he may die, as did the decedent, in a public hospital, and still may have acquired a new domicile. It is true that “no man shall be without a domicile,” and that one is not lost until one is acquired; and that there must be a concurrence of act and intent — the change must be animo et facto. “ Residence, combined with intention, constitutes domicile.” But the character of the residence is of no importance; and whether the residence be long or short is immaterial. (8 Me., 203; 2 Kent, 430, 431, note.) As was said in Moore v. Darrall (4 Hag. Eccl., 346), “Domicile does not depend upon residence alone, but on a consideration of all the circumstances of each case.”

The difficulty in these cases is generally to determine whether there was or was not the animus revertendi. If it be clearly established that there was none, it requires very little evidence to uphold the inference that there was in his new residence the animus manendi. When a European emigrant departs from his own .country, taking with him his wife and children and goods and chattels with the expressed intent never to return, and stops in some American city with no immediate expectation of going farther, and dies, no one will doubt that for the jurisdictional purposes of administration and distribution he acquired what has been called a “fixed present domicile,” though there may have been a floating intention of some day going elsewhere. The decedent’s case as above stated was substantially that of the emigrant, though the statement is not so decisive. If he had left California with the expressed intent of returning, his stay in Washington would count for nothing. If he had left California with no indication that he intended to abandon his domicile, his brief residence and death in Washington would not overthrow the natural presumption, that he intended to return. • If the terminus of his journey had been Richmond or Savannah, it would have to be held that, he had died on the way, that he had acquired no domicile in Washington and had lost none in California.

From the multitude of decisions on this subject, we deduce the following conclusions as expressive of the generally accepted-judicial doctrine concerning a change of domicile.

Where a man leaves his domicile with an intent to return and remains abroad and does po act legally inconsistent with the intent, there is no change of domicile, though he may-remain abroad many years and never return. Where a man leaves his domicile with no expressed intent to return, or not-to return, and indeed does not himself know whether he will or will not, his domicile nevertheless continues until his acts, and declarations indicate his intent to acquire a new one, or are inconsistent with an intent to return. But where a man leaves his domicile with no intent to return and with the-avowed intent of finding a residence in some other place, it will require little evidence to establish the fact of his having-chosen a new domicile; and neither the character of the residence nor the brevity of its duration will necessarily refute the presumption of a change. The brevity of residence in a. new place, may be used as evidence to refute the idea of an intent to remain, provided that the duration was cut short by the voluntary act of the party; but a termination of residence-by death indicates nothing. When a man lives in a place until he dies and has no home or residence or habitation or family elsewhere, and has expressed no intent to reside elsewhere, it is safe to say that his domicile was the place of his. death.

But the jurisdiction of a probate court must appear on the-record, and the facts on which it depends be expressly set. forth. Jurisdiction can not be inferred argumentatively or-liolpen out by evidence extrinsic to the record. (Brown v. Keene, 8 Peters, 112). On looking into the record here we-find that the facts relied upon in the statement above made by-counsel do not appear there.

Before the probate court could acquire and exercise jurisdiction it was necessary that it should appear upon the record of the case that there was either domicile or assets within the District of Columbia. The petition to the orphans’ court, praying the appointment of an administrator, set forth that “David T. Tryon, late a citizen of the United States and a resident of Sacramento, California, died in the city of Washington, District of Columbia, at Providence Hospital, on the 31st day of December, 1883, aged fifty-three years, seized and possessed of personal property to the amount of five thousand dollars, to wit, drafts of the First National Bank, Santa Fe, New Mexico, upon the First National Bank of New York City.”

By a supplemental petition the fact appeared that “at the time of filing the petition for letters of administration, said drafts were on deposit in the National Metropolitan Bank of Washington City.”

It is therefore apparent that the decedent was at one time at .least “a resident of Sacramento, California,” and there is no allegation whatever of a change of domicile or an averment that he had acquired one in the District of Columbia. The fact evidently relied upon to confer jurisdiction was that he died in the District of Columbia, seized and possessed of drafts drawn by a bank in Santa Fe upon a bank in New York.

There were, then, no assets in the District of Columbia. As a matter of fact, the money which constituted the estate had to be brought into the District from another jurisdiction for administration and distribution. As a matter of law, it is well settled that in such a case ancillary administration must be in the place where the debtor resides. The authorities are set forth in the exhaustive argument upon this point of the counsel for the defendants.

Since the administrator brought his suit here he has been appointed administrator by a probate court in California and he seeks to maintain the action as such. The defendants object on the ground that the claimant is as much two parties as if he were two men, and that his appointment as administrator by a court of the District of Columbia was absolutely void, and the bringing of the suit absolutely without authority. None of these positions is the court disposed to question.

But this is not a suit where a statutory bar has attached. There is a provision in the Indian depredation act fixing a jurisdictional period within which all suits must be brought. There was a similar provision in the abandoned and captured property act. Under that statute the court always allowed the substitution of the right party for the wrong party fo save a meritorious cause of action, such as substituting the husband for the wife, the executor for the guardian, the assignor for the assignee, etc. (Davenport Case, 31 C. Cls. R., 430.)

It is objected here that the administrator being no administrator in law represented nobody. From a technical point of view this may be conceded, but as a matter of fact the individual who instituted the suit intended to represent then, and does represent now, the real parties in interest, and the right of action, which is their right of action, should not be allowed to fail because of an abstract theory of law. The power of the court to make this amendment, we think, can not be doubted since the decision of the Supreme Court in the case of Chapman v. Barney (129 U. S., 677), where it was held that “amendments are discretionary with the court below and are not re viewable by this court; and this rule applies to an amendment substituting a new sole plaintiff for the sole original plaintiff.”

Counsel for the defendants also relies upon a decision of this court in the case of Seehorn, administrator of Cox (not reported), where a suit erroneously had been brought by the administrator of an estate of a man who had not died. But there the real party in interest, the living man, had never been represented by a party coming into court on his behalf. He was alive and responsible and should have brought his suit in due time, and having made no attempt to do so was not entitled to escape the consequences of his own laches by taking advantage of the unauthorized suit of the administrator.

The order of the court is that the motion of the defendants be overruled and that the suit proceed, with leave to the claimant to prosecute as administrator on his filing an amended petition and showing that he has been duly appointed administrator by the proper probate court of the place of the decedents’s domicile.  