134 Tenn. 468 | Tenn. | 1915
delivered the opinion of the Court.
The bill of complaint was filed by Denny to enjoin the county of Sumner and the board of equalization of that county from making an assessment of complainant’s personal estate and to prevent collection of taxes based on any such assessment. The preliminary steps had been taken to'assess complainant’s holdings of personal property in that county at $40,000 for the year 1915, and the tax authorities of Trousdale county also
Denny was born in Smith county, Tenn., in 1867, and had his domicile there until 1902, when he removed to Trousdale county, in this State.
In 1913 he sold his farms in Trousdale and Smith counties, and also his personal property, with only a few exceptions. He was at that time, and has since remained, a widower; he and a' son fifteen years of age constituting his family.
Not finding the school advantages of Trousdale county edequate, as he thought, he considered going to Lebanon, Wilson county, or to Gallatin, Sumner county, for the purpose of placing his son in school. He was persuaded by a close personal friend who lived in Gallatin to choose the latter place, and he went there early in 1914 and placed his son at once in a hoys’ training school. At first he rented a house and twenty-one acres of land that surrounded it. Later, finding that this place was on the market at $10,000, he purchased it at about $8,000, hut as an investment. The acreage was located in the suburbs of Gallatin and he was pnrsnaded by his friend that it was or would become valuable for subdivison purposes.
Before going to Gallatin Denny had this friend to ascertain from a leading attorney of the Gallatin bar whether his going to that place for the purpose .of educating his son would operate to change his domicile; his desire being to retain his legal residence in Trous-
Complainant made unsuccessful efforts to buy farms in Sumner, Williamson, and Maury counties; and, as stated, he testifies that he had no intention of residing permanently in Gallatin, or in Sumner county, unless he should succeed in making the purchase of a farm there. The other proofs as to his contemporaneous declarations are to the effect that his intention was to retain domicile in Trousdale county; that he had no purpose to remain in Gallatin permanently, but- to use it as a base for educating Ms son and for finding a farm in some Tennessee county; no particular county being in mind.
Denny has continued all along to vote in Trousdale county and to pay taxes on personalty there.
For purposes of taxation of personal property one must, of course, have a domicile fixed in some particular county and municipal corporation or civil district of the State.
“Domicile” and “residence” are not synonymous in the law relating to situs for taxation, “domicile” im
A man may have two or more residences, but only one domicile or legal residence. He must have a domicile somewhere; he can have only one; therefore, “in order to lose one, he must acquire another.”
The law will, from facts and circumstances, fix a legal residence for him, unless he voluntarily fixes it himself, and, when his legal residence is once fixed, it requires- both fact and intention to change it. As contra-distinguished from his legal residence, he may have an actual residence in another State or county. He may abide in the latter without surrendering his legal residence in the former, provided he so intends. His legal residence, for the purpose indicated, may be merely ideal, but his actual residence must be substantive. He may not actually abide at his legal residence at all, but his actual residence must be his abiding-place. Tipton v. Tipton, 87 Ky., 245, 8 S. W., 440; Long v. Ryan, 30 Grat. (Va.), 718.
To constitute a change from a domicile to another domicile of choice, as is claimed in the instant case, three things are essential: (a) Actual residence in the other or new place; (b) an intention to abandon the old domicile; and (c) an intention of acquiring a new one at the other place. Sparks v. Sparks, supra; Foster v. Hall, supra.
“As some writers express it, there must be an animus non revertendi and an animug manendi or animus et factum. Berry v. Wilcox, 44 Neb., 82, 62 N. W., 249, 48 Am. St. Rep., 706; Hayes v. Hayes, 74 Ill., 312, 316; Jopp v. Wood, 34 L. J. Ch. N. S., 212; Moorhouse v. Lord, 10 H. L. Cas., 272. The factum is the transfer of the bodily presence, and the animus is the intention of residing permanently, of for an indefinite period. A change of domicile therefore involves a question of fact and intent. The fact is easily proved because it is shown by the mere transfer of the bodily presence from the old to the new place of abode, but the intent with which the change is' made is to be determined from the character of the residence, its object and purpose, in connection with the other evidence in the case. Residence in a particular place is a fact obvious to the senses, and cannot be- easily mistaken, but its value in*476 fixing domicile is unimportant unless accompanied with an intent of remaining permanently or indefinitely or, as it is sometimes said, with no present intent of removing therefrom. Residence alone however long continued, will not effect a change of domicile. On this point the authorities speak with practically one voice.” Pickering v. Winch, 48 Or., 500, 87 Pac., 763, 9 L. R. A. (N. S.), 1159, and note.
Reference may he made parenthetically to an exception recognized in this State to the rule that a domicile once fixed remains until another is actually acquired, arising in event of a change from a domicile of choice to that origin. Then, if the removal he with the intention to resume his domicile of origin, the latter is reacquired before it is reached, or even while the person is in itmere, “for it reverts from the moment the other is given up.” Allen v. Thomason, supra; citing Story on Conflict of Laws. The doctrine touching this exception is confined, however, to changes from one country to another, or from one State of the Union to another. Kellar v. Baird, supra; Story, J., in Catlin v. Gladding, 4 Mason, 308, Fed. Cas., No. 2520; Udny v. Udny, 4 L. R. H. L. Sc. App., 441, 9 Eng. R. C., 782. The exception thus recognized in this State should he held in mind to prevent confusion in the attempted application of the language used in opinions enforcing the doctrine to instances where it has no relevancy.
In the case of Bulkley v. Williamstown, 3 Gray (Mass.), 493, it appeared that prior to the tax test date of May 1,1853, Bulkley, an inhabitant of Williams-
“The question of domicile is often a difficult one; and it is a matter of surprise, considering the number of cases, that questions do not arise more frequently. The difficulty is intrinsic in determining, under the various combinations of circumstances, what constitutes habitancy or domicile, which, for most purposes at least, are the same. . . . The question in this case is: Where was the plaintiff’s domicile on first day of May, 1853? Clearly not in Rock Island, Ill., for he had not taken up his abode there. But he was an inhabitant of Massachusetts for the purposes of taxation, and of some town, city or district. . . . Whether he had left Williamstown with an intent to make Adams his place of abode was a question of fact, which was left to the jury, who decided that he had not, which appears to us to be right, according to the evidence as reported.”
In the case last named it appeared that a person domiciled in Boston left for an indefinite term of absence, and on leaving he had determined never to return to reside in Boston; and before May 1, 1877, he had decided to take up his residence on his return from his travels in Connecticut, and on his return in 1879 he went to Connecticut to reside. It was held that his domicile for taxation purpose on May 1, 1877, was in Boston; the court assigning as reasons for the judgment:
“Although he might have left the common-wealth with the fixed purpose to abandon it as a residence, he did not leave it on his way to a place certain which he had determined upon as his future residence, and was proceeding to with due dispatch; and upon the general rule that, having had a domicile in this commonwealth, he remains an inhabitant for the purpose of taxation until he acquired a new domicile, the intention and fact had not concurred- at the time when this tax was assessed.”
Bee, also, Ayer v. Weeks, 65 N. H., 248, 18 Atl., 1108, 6 L. R. A., 716, 23 Am. St. Rep., 37.
- The mere intention to acquire a new domicile without the fact of an actual removal and residence avails nothing; neither does the fact of an actual removal without such intention. This intent is as essential as the' fact of actual residence. A mere change in the
“This intention, it is true, may be inferred from circumstances, and the residence may be of such a character and accompanied by such indices of a permanent home that the law will apply to the facts a result contrary to the actual intention of the party. Thus one cannot make a permanent, fixed commercial residence with all the surroundings of a permanent home in one place and a domicile in another by a mere mental act. But a residence for mere pleasure or health is not regarded as of any great weight in determining the question of a change of domicile.” Pickering v. Winch, supra; Still v. Woodville, 38 Miss., 646; Ayer v. Weeks, supra.
In such case he does not lose his former domicile so long as his intention remains conditional, as, for example, where he may seek employment, intending to change his permanent home only if he finds it. 9 R. C. L. 553-555; Berry v. Wilcox, 48 Am. St. Rep., 716, note.
In State ex rel. v. Scott, 171 Ind., 349, 86 N. E., 409, it was said:
“So it may be . . . said that a journey into another State or territory for inspection, accompanied with an intent permanently to remove to such other State if a satisfactory place is found, does not amount to a change of residence until an approved location had been . . . discovered and chosen,” etc.
The counsel of the county places much emphasis on his contention that the domicile in Trousdale county was abandoned, in that it is claimed that Denny left there with no fixed, absolute, and unconditional intent to return to it as his home. As we have seen, however, the case turns upon the ruling that Trousdale county was perforce his domicile until another was acquired, . and such other was not acquired by a voluntary fixing of a habitation at the new place to remain conditionally or for a temporary and special purpose. 9 R. C. L., 555, section 20. Reversed, with decree here.
ON Petition to Reheae.
A petition to rehear has been filed and considered, but a re-examination of the case serves only to confirm the soundness of the views already expressed.
“If a person actually removes to another place, with the intention of remaining there for an indefinite time as a place fixed domicile, such-a place becomes his domicile. If a person leaves the place of his domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in his domicile, he will not be considered as having changed his domicile. Crawford v. Wilson, 4 Barb. (N. Y.), 505; Ross v. Ross, 103 Mass., 575.
“If there be both actual residence and an intention of remaining — the animus manendi-then a domicile is established.” Worsham v. Ligon (Ga.), 87 S. E., 1025.
A rehearing is denied.