186 Iowa 590 | Iowa | 1919
I. J. M. Colburn died intestate, at the age of 75 years, February 11, 1915. He had' never married. E. H. Addison was duly appointed and qualified as administrator of his estate. Decedent was the son of Orlin Col-burn, Sr., and Balsora Miller Colburn, both of whom departed this life prior to his death, and left them surviving another son, Orlin Colburn, Jr., by them begotten, and a
For convenience, we shall refer to the heirs of the brother as plaintiffs, and the heirs of the half-sister as defendants. The former say that decedent’s domicile, at the time of his death, was in Story County, while the latter insist that his domicile was then in Oklahoma. If his domicile was in Story County, his estate, save as interfered with by the laws of Oklahoma, passed under Section 3381 of the Code; and plaintiffs, children of the full brother of decedent, each took one third of three fourths, or one fourth thereof, and each of defendants, children of the half-sister, inherited one third of the remaining one fourth, or one twelfth. On the other hand, if decedent is found to have been domiciled in Oklahoma at the time of his death, the children of the brother of the full blood and those of the sister of the half blood inherited equally, and each would take one sixth of the estate. Section 8427 of the Revised Laws of Oklahoma.
ceed to such property as heirs of the owner, resort is had to the laws of the state in which the owner had his domicile at the time'of his death, rather than to the laws of the locality in which such personalty happened to be located. Caruth v. Caruth, 128 Iowa 121; In re Estate of Titterington, 130 Iowa 356. By a fiction of the law, it is presumed to attend the person of its owner, and to be present in that state in which he has his domicile. Gilbertson v. Oliver, 129 Iowa 568; Klumpert v. Vrieland, 142 Iowa 434; Wilkins v. Ellett, 9 Wall. 740 (19 L. Ed. 586), 108 U. S. 256 (27 L. Ed. 718); In re Estate of Ingram, 78 Cal. 586 (12 Am. St. 80, with note at page 90). The rule and the reason for it were well stated in Desebats v. Berquier, 1 Binney (Pa.) 336 (2 Am. Dec. 448). See Cornelison v. Blackwelder, 38 Okla. 1 (131 Pac. 701):
“It must be considered as settled that ‘the succession to the personal estate of an intestate is to be regulated according to the law of the country of which he was a domiciled inhabitant at the time of his death.’ If this is the rule in case of intestacy, why should not the same rule prevail with respect to last wills? It is only with the view to promote the general convenience and happiness of mankind that any country allows the laws of a foreign nation to operate in any instance on property within its territory. It is supposed that every man is best acquainted with the law of his own country, and that, when he dies intestate, it is his deshre and expectation that his personal property, wherever siUmted, should be distributed aeoorMng to that law;
As was said in Judy v. Beckmith, 137 Iowa 24:
“While corporate shares possess some peculiar qualities and characteristics, we think that none have ever been discovered which take them out of the class ordinarily termed ‘personal property.’ * * * If he dies intestate, their distribution to his heirs is governed by the law of his domicile, and not by the law of the corporate domicile.”
See In re Estate of Miller, 90 Kan. 819 (136 Pac. 255), where the court held that:
' “The situs of shares of capital stock in a Kansas corporation owned by one who was a resident of another state at the time of his death, for purposes of administration, is at the 'domicile of the decedent, rather than in the state in which the corporation is organized and has its place of business.”
Frothingham v. Shaw, 175 Mass. 59 (78 Am. St. 475); McKeen v. County of Northampton, 49 Pa. St. 519 (88 Am. Dec. 515).
No statute of Oklahoma to the contrary has been called to our attention, and Section 6738 of the Revised Statutes of that state expressly declares that:
“If there is no law to the contrary in the place.where personal property is situated, it is deemed to follow the
“Domicile is that place where a man has his true, fixed, and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.”
The decedent had made his home with a tenant on his farm in Washington Township, Polk County, for more than 20 years, and he was there domiciled up to March 1, 1913. He then left the farm, which he had sold; and the issue to be determined is whether thereafter he established Ms permanent residence in Maxwell, Story County, or at Collins-ville, Oklahoma. The evidence that he went from the farm to the hotel in Maxwell, where he stayed part of the time, was at a hotel in Des Moines several days, and went to Oklahoma in April or May, and returned about six weeks later, is undisputed. While gone, he was at the home of Nathan O. Colburn in Collinsville, Oklahoma, about two weeks, without paying for board or lodging; visited Edward B. Colburn at Owassa several days; visited his brother at Eureka, Kansas, and possibly friends and relatives elsewhere. Upon his return to Maxwell, he lived at the hotel for a while, and about the middle of August, 1913, moved into rooms in the house of one Shoop. He had spoken to the latter about leasing the rooms in the spring, and Shoop had promised them as soon as vacated. This oral lease was for no definite period, though decedent paid rental for the rooms in advance as long as he lived. Shoop testified that decedent told him “he was going to stay there until he died,
Shoop says decedent was gone about three weeks; that his housekeeper stayed at bis rooms about a week and then visited her daughter the remaining two weeks, and returned on the same day decedent reached Maxwell again; and that the latter had left a package of papers with Shoop’s wife for safe-keeping. About November 1, 1914, he visited a few days with his nephew and family at Nevada. It should be added that he purchased an automobile at Maxwell in 1913, and was sued in Polk County by one Reagan for a commission alleged to have been earned in the sale of his farm, and on his claim that he was a resident of Story County, the petition was dismissed; but at the same time, he “was claiming that he intended to go to Oklahoma and stay.” Though he had been accustomed to keep his papers in a large envelope on his person, while at Shoop’s home he procured an iron automobile box, with a lock, in which he kept them thereafter, save when he went to Oklahoma.
Nathan 0. Colburn, who resided at Collinsville, Oklahoma, was with decedent on his farm in Polk County shortly before decedent left it, and testified that the latter had said that “he thought he would go to Maxwell,” but “didn’t say how long he was going to stay there;” that he did not
“Q. Did it occur to you that his business — -his money— transferred there would be subject to taxation? A. Yes.”
The witness also recited that, in August, 1914, he had a conversation, Avhen at Maxwell, with decedent concerning where he would live, and again invited him “to come down there to Oklahoma and stay a part of the time, if he did not choose to stay all the time,” and to “make his home there;” that, when decedent was there in October, 1914, he remained at the Avitness’ house over two weeks, and boarded with him without compensation; and the wit-'
Mrs. Carter, a daughter of the administrator’s, swore that, immediately after the funeral of decedent, Nathan 0. Colburn and his wife, Edward B. Colburn, and George W. Addison went to the house of her father, and while there, Mrs. Nathan O. Colburn said that “they had been putting off building until they knew what Uncle Jim wanted to do, and went on to tell about this room that they had; that their home was fine for him; that this room was near the ■ bathroom; and they all, and even the children, called it Uncle Jim’s room; and he knew when he came that he had a place to stay;” that she “spoke about putting off building until Uncle Jim came down to approve the plans;” and further, that they were putting off building “until they would know what he wanted.” This was not directly controverted; but Nathan O. Colburn testified that there was no room at his home set apart for decedent; that, when he came, the room usually occupied by Colburn and his wife was turned over to decedent, and they slept elsewhere. It appears, also, that decedent was a member of the Masonic Lodge at Maxwell, and continued such until his death, and that this lodge officiated at his funeral.
The decedent, in leaving his farm, as might be expected, went to the place where probably he was best acquainted, and where he had done his trading for years; and, as we think, after visiting relatives, he established his
He claimed Story County as his place of residence when sued by Reagan, even though he said “he was going to Oklahoma to stay,” and referred to Maxwell as home, in his talk .with Colburn; and to that place he appears always, when away, to have intended to return. He vot.ed there in the fall of 1914; and, though not conclusive, this was indicative, in the absence of explanation, that he deemed himself a permanent, rather than temporary, resident of that place. See Robinson v. Charleton, 104 Iowa 296. Undoubtedly, there was talk of establishing as His place of residence the home of his nephew in Collinsville, but the record is void of evidence that he ever reached a definite purpose so to do, or ever so did. The declarations of Mrs. Col-burn, testified to by Mrs. Carter, indicate plainly that he had not expressed to her a purpose of making his home in Collinsville, and the administrator goes no further than to say that he claimed he was going there to stay, and that, in making his last visit to Collinsville, “he intended or thought he might stay there permanently at that time.” But it is not pretended by the witness that he had determined so to do, and at the very time that he is said to have claimed that he was going to Oklahoma to stay, he was claiming Story County as his place of residence. We are unable to find from the evidence that decedent had ever fully determined to make any place in Oklahoma his home. He stayed at Collinsville but two weeks, on his visit in 1913, and was back at Maxwell in two weeks in 1914. He had been at Collinsville once or twice, previous to these trips,
To establish a domicile at any particular place, Iavo things must concur: (1) The intention so to do; and (2) the fact. There must be the intention to make the location one’s permanent abiding place, and then there must be the fact' of actually there residing. As said by Wright, J., in Hinds v. Hinds, 1 Iowa 36:
“The mere intent, without the fact of residence or abiding, cannot constitute the domicile. Neither can the intent, Avithout having the abode, the home, the place to dwell, constitute residence.”
Having reached the conclusion that the evidence is insufficient to warrant a finding that decedent ever became a resident of Oklahoma, it is unnecessary to determine upon whom the burden of proof rested; but see Will of Olson, 63 Iowa 145, 146. We are content with the finding of the district court that decedent was domiciled in Iowa at the time of his death.
If this were applicable, it might be that personal property in Oklahoma would have to be distributed as though decedent actually had domiciled there; but he had never conducted a business there, in person or by agent. As president and director of the bank at Collinsville, he was one of its agents for the transaction of its business. The corporation was doing its own business as a distinct entity, through him and others as agents, and in no sense' acting for him. The same is true of his relation as director of the American National Bank of Muskogee, Oklahoma. The domicile of the bank was there, but not necessarily that -of
“ 'To engage in business’ is uniformly construed as signifying to follow that employment or occupation.which occupies the time, attention, and labor, for the purpose of a livelihood or profit.”
Webster defines “business” as:
“That which engages the time, attention, or labor of anyone as his principal concern or interest, whether for a longer or shorter time; constant employment; regular occupation.”
See Territory of Montana v. Harris, 8 Mont. 140 (19 Pac. 286).
Business is also defined as “that which busies or occupies one’s time, attention, and labor as his chief concern; that which one does for a livelihood; occupation; employment; as, his business was that of a merchant; to carry on the business of agriculture.” Waggener v. Haskell, 89 Tex. 435 (35 S. W. 711). See Goddard v. Chaffee, 84 Mass. 395 (79 Am. Dec. 796); Cuzner v. California Club, 155 Cal. 303 (100 Pac. 868); Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289 (41 L. R. A. [N. S.] 615); Ammons v. Brunswick-B-C. Co., 72 C. C. A. 614; 6 Cyc. 259, and cases collected. So, too, the word “business” implies an employment or occupation that is continuing. Parkhurst v. Brock, 72 Vt. 355 (47 Atl. 1068).
It is apparent from these definitions that, even though decedent had loaned his nephew, Nathan O. Colburn, $15,-000, and one Ward $2,000, in 1912, and $1,500, subsequent thereto, doing so did not amount to conducting a business in Oklahoma. This nephew acted for him in making the loans
As previously remarked, personal property has no locality, but ordinarily is subject to the law of the owner’s
The facts in the case of Commissioners of Johnson County v. Hewitt, 76 Kan. 816 (93 Pac. 181, 14 L. R. A. [N. S.] 493), were much like those in this case, and there the court said:
“It is not necessary to determine precisely what facts Avill be sufficient in every case to establish an independent business situs for notes and mortgages; but, generally, the element of separation from the domicile of the owner, and fairly permanent attachment to some foreign locality, should appear, together Avith some business use of them, or some power of managing, controlling, or dealing with them in a business way. A merely transitory presence in a foreign state, or a naked custody for safe-keeping, is not enough.”
See, also, Hunter v. Board of Supervisors, 33 Iowa 376; Buck v. Beach, 206 U. S. 392 (51 L. Ed. 1106).
Enough has been said to indicate our view that decedent had no business domicile in Oklahoma, and the proceeds of these notes are not to be distributed under the laws of that state. It should be added, however, that the Supreme Court of the United States, in Harrison v. St. Louis & S. F. R. Co., 232 U. S. 318 (58 L. Ed. 621), in.declaring unconstitutional the two sections following that quoted, seems to have thought all three inimical to the Federal Constitution. Section 4666 of the Revised Laws of Oklahoma declares that:
“The license or charter to do business within 'the state of Oklahoma of every person, firm or corporation conducting a business in person, by agent, through an office or otherwise transacting business within said state of Oklahoma, who shall claim or declare in writing before any court of
The next section makes it the duty of the judge of any court before whom any claim to foreign domicile is made, within the contemplation of the previous section, to make report at once of the fact to the secretary of state, and transmit to that office a copy of the claim. Another section exacts that the secretary of state receipt for’ the copy mentioned, and declare the license or charter of any person, firm, or corporation “so filing said claim or declaration forfeited and revoked.” In disposing of the case, Chief Justice White said that:
'While the provisions of the statute are dependent one upon the other, and are unified in the sense that they all are components of a common purpose, — that is, tend to the realization of one and the same legislative intent, — its provisions, nevertheless, for the purpose of analysis, are plainly twofold in character: that is, one, the compulsory citizenship and domicile within the state which the first section imposes, and the other, the prohibition which the statute pronounces against any assertion in a court of the existence" of any other citizenship and domicile than that which the statute ordains, and the means and penalties provided for sanctioning such prohibition. Although, theoretically, the first would seem to be the more primary and fundamentál of the two, since the second, after all, consists but of methods provided for making the first operative, the second, from the point of view we are examining, is the primal consideration, since it directly deals with the assertion in a state court of a right to remove, and provides the mechanism which was deemed to be effectual to render the assertion, of such right impossible. In other words, the difference between its two provisions is that whicli exists between an attempt on the one hand to render the
Notwithstanding this last suggestion, it is possible that, conceding the invalidity of Sections 4666 and 4667 of the Revised Laws, the courts of Oklahoma may regard Section 4665 thereof as not necessarily so connected with the subsequent sections as to be carried down with them. That statute may be upheld as valid for the purposes of taxation and casting the descent of property, even though not available to defeat the jurisdiction of the Federal courts. Because of this situation, we prefer to rest our decision on the finding as made.
