[a] Court may modify divorce decree in proper case SO as to provide that parent support and educate children.-Parkhurst v. Parkhurst, 118 Cal. 22, 50 Pac. 9.

[b] The court, in modifying the decree as to the custody of a child, proceeds upon new facts, considered in connection with facts formerly established, including the change of circumstances, the conduct of the parties, the morals of the parents, their financial condition, subsequent marriage, the age of the child, and the devotion of either parent to its best interest and the good of the child, which is the controlling force in directing its custody.-Crater v. Crater, 135 Cal. 633, 67 Pac. 1049.

of divorce, court may compel him to pay wife's necessary costs on appeal.-McKay v. Superior Court, 120 Cal. 145, 147, 52 Pac. 147.

[b] A wife in a suit for divorce is, after the determination of an appeal in her favor, entitled to interest on amounts awarded her for suit money and alimony on the trial below from the date of the decree awarding the suit money, and the date when the alimony became due.-Huellmantel v. Huellmantel, 124 Cal. 583, 57 Pac. 582.

[c] A wife is not entitled to interest on sums awarded in her favor as costs upon the first trial of an action for divorce, when the action was reversed after the first trial on appeal by the husband.-Huellmantel Huellmantel, 124 Cal. 583, 57 Pac. 582.

V.

VII. OPERATION AND EFFECT OF DIVORCE AND RIGHTS OF DIVORCED PERSONS.

§ 163. In General.

[a] Where husband and wife are divorced, and the decree also directs an equal division of the common property, and both afterwards die, the former husband leaving a will, and the former wife intestate, the executors of the last will of the former husband cannot exclude from the lands formerly held in community the heirs of the former wife.-MeLeran v. Benton, 31 Cal. 29.

[b] After divorce a separate suit may be brought for division of community property not adjudicated.-Godey v. Godey, 39 Cal.

157.

[c] Decree of divorce is not an estoppel as to rights of property, if not adjudicated.Godey v. Godey, 39 Cal. 157.

[d] On grant of divorce to wife without adjudging property rights, her title in homestead existing on her separate property becomes absolute.-Burkett v. Burkett, 78 Cal. 317, 12 Am. St. Rep. 58, 20 Pac. 715.

[e] Where the court, in an action for a divorce, assigns all the community property to the wife, leaving the husband without separate property, the property so assigned is taken subject to the equitable claim of existing contract creditors whose demands are due, or to become due, on account of credit extended to the husband for the benefit of the community during the existence of the marital relation.-Frankel v. Boyd, 106 Cal. 608, 39 Pac. 939.

[f] Where husband and wife acquire an estate by the entirety, and are afterward divorced, they then become tenants in common. Kirschner v. Dietrich, 110 Cal. 502, 42 Pac. 1064.

§ 164. Right to Remarry.

[a] Where a court dissolves the bonds of matrimony it has no power to impose any

restraint upon a second marriage, in the absence of express statute conferring it.-Barber v. Barber, 16 Cal. 378.

FOR AUTHORITIES FROM OTHER STATES:

24 L. R. A. 831. 55 L. R. A. 169, notes. See, also, 14 Cyc. 729; 17 Cent. Dig., cols. 1005-1009, §§ 818-820.

§ 165. Foreign Divorces.

[a] An Indiana divorce, obtained upon the appearance of an attorney without the knowledge or consent of the defendant, is not void, but at most only voidable, at the election of the defendant, and cannot be impeached in California by the plaintiff, at whose instance the appearance was entered and the divorce obtained.-Elliott v. Wohlfrom, 55 Cal. 384.

[b] Where one has obtained a valid divorce in one state, the fact that his wife afterward brings an action in another state for divorce from bed and board, and for support, and obtains judgment therefor, he not pleading his decree of divorce, will not change his status of a single man.-James' Estate, In re, 99 Cal. 374, 37 Am. St. Rep. 60, 33 Pac. 1122.

[c] A decree of divorce which has been regularly obtained in one state by a citizen thereof against a nonresident defendant, constructively served with process by publication of summons, and without other notice, and which is valid and effectual in the "state in which such decree is rendered, is equally valid in a sister state.-James, Estate of, 99 Cal. 374, 37 Am. St. Rep. 60, 33 Pac. 1122.

[d] It is competent collaterally to impeach a judgment of divorce rendered in another state by extrinsic evidence showing that the facts necessary to give the court pronouncing it jurisdiction to proceed did not exist, notwithstanding a recital of such facts in the judgment, but where, upon such collateral attack, the evidence is conflicting as to whether the plaintiff was a bona fide resident of the state for the length of time required to give jurisdiction to the court, a finding of the court that he was such resident for a sufficient length of time will not be disturbed upon appeal.-Estate of James, 99 Cal. 374, 37 Am. St. Rep. 60, 33 Pac. 1122.

[e] Plaintiff was served with process in a divorce action in Hawaii, brought by her husband's guardian, on the ground of adultery, and appeared therein by attorney, but before judgment removed to California to make it her permanent home. The judg ment was merely a decree for divorce, and did not deal with property rights; but a statute of Hawaii provided that, when a divorce was decreed for the adultery of the wife, the husband should hold her personal estate forever. Held, in an action in California on a policy of insurance on her husband's life, payable to plaintiff, that she was entitled to recover, since, as she was domiciled in California at the time of the

judgment for divorce, the statute of Hawai had no operation on her or her personal property.-McGrew v. Mutual Life Ins. Co of New York, 132 Cal. 85, 84 Am. St. Rep. 20-n, 64 Pac. 103.

[f] Under Civil Code, section 91, providing that the effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons, and section 61, providing that a subsequent marriage contracted by any person during the life of a former husband or wife of such person with any person other than such former husband or wife is void unless the former marriage has been annulled or dissolved, provided that in case it be dissolved the decree of divorce must have been rendered at least one year prior to such subsequent marriage, where a woman, within five months after obtaining a divorce in California, was married in Nevada, to a citizen thereof, in accordance with the laws of that state, the marriage was valid in California, the prohibition of remarriage in the statute having no extraterritorial force. Wood's Estate, In re, 137 Cal. 129, 69 Pac. 900; Appeal of Wood, 137 Cal. 129, 69 Pac. 900.

[g] Where a judgment in a suit for maintenance brought by a wife against her husband in another state was entered on stipulation, and recited that the stipulation admitted that the separation was without any fault on the part of the wife, and such judgment would not have estopped the husband, in the state where it was rendered, to recontest the question of the wife's desertion in another suit, it could not have such effect in a suit for divorce brought by the husband in California on the ground of desertion.-Harding v. Harding, 140 Cal. 690, 74 Pac. 284.

§ 2.

Definitions of domicile and how ascertained and changed: 59 Am. Dec. 111, note.

Inmates of Public Institutions.

[a] The fact that the petitioner was an inmate of a soldiers' home was as much in accord with his claim of residence as if he had lived elsewhere in the state. It is no disproof of his residence in this state that the petitioner, who was seventy-four years of age, was married and had children living in Massachussetts, where there is no evidence that he had a wife living, or that his children were living in a family home when he came to this state. They cannot be presumed to be minors, or to need a father's care, neither is it any disproof of intention to reside in this state that the petitioner never registered as a voter therein.-Gordon, Estate of, 142 Cal. 125, 75 Pac. 672.

§ 3. Change of Domicile.

[a] Where a domicile has been once obtained, it will not be lost by a temporary absence with the intention to return.-Dow v. Gould & Curry Silver Min. Co., 31 Cal. 630.

[b] Union of act and intent are necessary to make a change of residence; and where one has been in the state but three days, nothing can be inferred from his presence in the state for so short a time, and it is for the court to determine from the whole of his

testimony what his intention was.-Estate of Donovan, 104 Cal. 623, 38 Pac. 456.

FOR AUTHORITIES FROM OTHER STATES:

§ 4.

Loss or change of domicile: 32 Am. Dec. 427, note.

Where is domicile, and how may be lost or changed: 48 Am. St. Rep. 711, note.

Facts Showing Change Generally. [a] Political Code, sections 52, 1239, provide that a person's residence is the place where he remains when not called elsewhere for labor or other temporary purpose, and to which he returns in seasons of repose, and in which his habitation is fixed, and to which he intends to return when absent; but, if he removes to another state with the intention of remaining an indefinite time, he loses his residence, notwithstanding his intention of returning at some future time. Held, where a husband and wife remove from the state for a temporary purpose, intending to return within a year and a half or two years, and take all their property with them, and remain away nearly five years, although the work which called them away is completed several months previous to their return, that they lose their residence upon leaving the state.-Weed's Estate, In re, 120 Cal. 634, 53 Pac. 30.

[b] Decedent, for several years prior to his death, had been a resident of L., in Alameda county, where he owned and operated a farm. Having been unsuccessful in an attempt to join a lodge in L., he came to S. F., and had his name placed on the great register as a voter; claiming in his application to be a resident of the latter city. Subsequently he voted in the general and judicial elections in S. F., and there joined a lodge, claiming in his application to be a resident of the city. Most of his time he spent at L., coming to S. F. about once a week, engaging a room at a hotel; but it did not appear that he had such room except when in the city. He died in S. F. Held, that his alleged residence in S. F. was false, and claimed for the purpose of imposing on the lodge he wished to join; that his residence was in L.; and that proceedings for the appointment of an administrator at S. F. should be vacated.-Samuel's Estate, In re, Myr. Prob. 228.

were

[c] A public officer of the city and county of S., having acquired a country residence in an adjoining county, was in the habit of repairing to it frequently for pleasure and recreation. Saturdays and Sundays spent at such residence, and he frequently repaired to it during the week; in the summer time spending most of his nights there, and returning to the city in the morning for business. He voted, however, in the city, and had rooms continuously at a hotel, where he and his wife stayed when in the city. Held, that the husband was a resident of S.-Austin's Estate, In re, Myr. Prob. 237.

§ 5. Regaining Lost Domicile.

[a] Where a husband and wife have lost their residence in this state, the wife cannot

[a] Where children under fourteen years of age abandoned by their father, live with and are supported by their grandmother for several years, the residence of the grandmother is that of the children.-Vance, In re, 92 Cal. 195, 28 Pac. 229.

[b] Where the father subsequently removes such children to another county, against the will of their grandmother, the residence of the children is not changed.-Vance, In re, 92 Cal. 195, 28 Pac. 229.

[c] A guardian of wards domiciled in California obtained an order permitting him to remove them to another state, "there to remain until the further order of the court." Subsequently the guardian was discharged without being required to return the wards to California. Held, that the domicile of the wards continued to be California, since the wards themselves were incapable of changing their domicile, and the order of the court permitting their removal indicated no intention to surrender jurisdiction of their persons. Henning's Estate, In re, 128 Cal. 214, 79 Am. St. Rep. 43, 60 Pac. 762.

DOUBLE INSURANCE.

As avoiding policy. See Insurance, § 97. DOUBLE JUDGMENTS.

In same case. See Judgment, § 136.

DOUBLE OFFICE.

Right to hold more than one public cfice. See Officers, 12.

DOUBLE PUNISHMENT.

For crime. See Criminal Law, § 825.

DOUBLE REPEAL.

Effect of repeal of repealing act. See Statutes,

64.

DOUBLE TAXATION.

Constitutional inhibition of. See Taxation, § 14.

DOWER.

Include nature and incidents of the interest in the real property of a deceased husband to which his widow is entitled for her life or absolutely, at common law or by statute; abolition of dower and its effect; rights, powers, and liabilities of married women and widows in respect of their dower; releasing, barring, or defeating rights of dower; and remedies relating thereto.

§ 1. Statutory Abolition.

[a] The statute in this state has done away with the common-law right of dower, and substituted a half interest in the common property.-Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125.

[b] There is no estate in dower in California. Estate in dower is abolished by Civil Code, section 173.-Stewart, In re, 74 Cal. 103, 15 Pac. 445.

FOR AUTHORITIES FROM OTHER STATES:

Constitutionality of statutes destroying
dower: 84 Am. St. Rep. 446, note.
Dower in mortgaged lands: 5 Am. Dec.
233, note.

Valuation of dower in aliened lands: 9
Am. Dec. 363, note.

Bar of dower by adultery: 19 Am. Dec.
688, note.

Assignment of dower: 79 Am. Dec. 600,
39 Am. St. Rep. 25, notes.

Husbands' transfers in fraud of wives: 39
Am. Dec. 218, note.

When barred by provisions in will: 51 Am.

Dec. 579, note.

Merger of dower in the fee: 99 Am. St.

Rep. 156, note; 3 C. C. A. 316, 4 C. C. A. 295, notes; 15 L. R. A. 542, 16 L. R. A. 209, 776, 18 L. R. A. 75, 425, 21 L. R. A. 180, 23 L. R. A. 642, 25 L. R. A. 564, 27 L. R. A. 340, notes. See, also, 14 Cyc. 871-1016; 17 Cent. Dig., cols. 1105-1214, §§ 1-80.