A constructive domicile is one created by law. Married women, infants and insane persons have domiciles of this character. The strictness of the old rule as to the domicile of married women has been somewhat modified, as is shown by the decision of the Supreme Court of New York in the case of "Matter of Florance,"3 the decision in which case was in part as follows:

"The whole claim of the plaintiff is based upon the old rule that a woman by marriage acquires the domicile of her husband and changes it with him. It is admitted that a wife may procure a separate domicile for purposes of divorce, but it seems to be claimed that such domicile cannot be procured for any other purpose. The old rule in reference to a married woman's domicile cannot, certainly, prevail in view of the rights which are recognized to be hers by the statutes.

"The property relations between husband and wife have been entirely changed since the rule in question has obtained, and the reasons for the rule no longer exist. The wife is now a distinct legal entity, having in the disposition of her property all the rights, and even more than a husband has ever possessed, and the husband has no control whatever over her movements or her disposition of her property. In the case at bar it appears that in 1875 the petitioner and his wife agreed to separate, she to take their children and maintain them. They did separate, he going to Philadelphia and she living in New York, which had been her home before marriage, and supporting their children from her own means. There is no pretense that the petitioner ever contributed a cent to the support of his wife or their children since 1875, or offered to do so, and the best that he can say in his petition is that he never refused to provide a home for his said wife or her children in the city of Philadelphia. Probably he was never asked to do so, and, consequently, did not refuse, but he nowhere alleges that he offered to provide a home for his wife and children anywhere, and probably he did not.

3 54 Hun., 28.

"They had agreed to live separate, and she had agreed to support herself and her children. She then, by and with his consent, acquired a domicile in New York, made that her home and that of her children, and certainly if she was enough of a resident to institute divorce proceedings, as is conceded, she is enough of a resident to leave her property to her children and to be protected from the claims of a husband with whom she has not lived for twelve years, and who has not, during that time, either contributed or offered to contribute to her support or to that of their children and who desires now, under a legal fiction, to take away from his own children a portion of their mother's inheritance."

The constructive domicile of a legitimate child is in general that of the father. After the death of the father such domicile will become that of the mother. The domicile of an illegitimate child is that of his mother.

The subject of the constructive domicile of an infant is discussed in the case of "In re Vance," 4 as follows:

"The principal contention of appellant is, that the court had no jurisdiction of the case, because, at the time the petition was filed, the children were not inhabitants or residents of Sonoma County, and hence that the order was void and should be reversed.

"The evidence on which the order was based was as follows:

"The petitioner introduced evidence showing that the mother of the children was her daughter, and had been dead about four years; 'that several years prior to the death of their mother, the mother and the children lived with petitioner, and were wholly supported by the petitioner; that after the death of their mother, the children continued to reside with the petitioner and to be supported by her; that the father, Vance, has not provided for the support of the children since the death of the mother; that at various times since the death of the mother, Vance, the father, has expressed and declared to the petitioner that he was willing that she have the care and custody of the children; that at various times since the death of the mother, Vance had expressed and declared his intention of never reclaiming or taking the custody of the children from the petitioner; . . . that the reputation of J. B. Vance for sobriety, industry, and morality was and is bad, and has been for more than four years last past, and that he spent his earnings and money for liquors, on women, and general dissipation; that up to about one year ago, Vance, the father, resided in Santa Rosa, Sonoma County; that about one year ago he went to San Francisco, and since that time has resided in San Francisco; that after going to San Francisco to reside, he married, and for some time previous to the trial has lived with his wife in San Francisco; that on the twelfth day of October, 1890, Vance came to Santa Rosa, and went to the home of the petitioner, where the children were, and represented to the petitioner that he desired to take the children down town to get some candy, whereupon petitioner consented, and he took the children and went away with them, as the grandmother understood, to take them down town and get them candy; that Vance then took them to San Francisco without the knowledge and consent of the grandmother; that they were in San Francisco at the time these proceedings were commenced, and up to the trial thereof; that petitioner is able to maintain and care for the children.'

4 92 Cal., 195.

"The father then offered testimony showing that his residence had been in San Francisco for the year last past, and was at the time he took the children there, and 'that his present wife, Mrs. J. B. Vance, had means with which to support and care for the children, and was desirous of caring for and supporting them.'

"In view of this evidence, we cannot say that the finding that the father had abandoned the children was not justified. He had left them for years to be supported and cared for by their grandmother, and had at various times declared his intention never to reclaim them. And that he recognized the grandmother's right to their custody will be presumed from the fact that he resorted to fraudulent means to get them away from her. If he had considered that he had a right at any time to take them away, presumably he would have asserted his right boldly, and no misrepresentations or deceit would have been used to accomplish his purpose.

"The general rule is, that 'the residence of the father during his life .... is the residence of the unmarried minor child.' (Pol. Code, sec. 52, subd. 4.) But this rule does not apply when the child is under the age of fourteen years, and has been abandoned by the father. In such case he forfeits his guardianship of the child, and can no longer claim its custody. (Stats. 1873-74, p. 297.) If, then, these children had been abandoned by their father, as the court below found, their residence was in Sonoma county, and it was not changed by their surreptitious removal to San Francisco. The questions involved in the case were all questions of fact, which the court below was called upon and had a right to determine - (In re Danneker, 67 Cal. 643), and we see no good ground for disturbing its conclusions. We advise that the order be affirmed."

It is generally said that an insane person has a constructive domicile. It would probably be more correct, at least in most cases, to say that the domicile of an insane person cannot be changed, and that such insane person must retain the domicile which he possessed at the time he became insane.