3 N.Y.2d 410 | NY | 1957
This article 78 proceeding concerns the right of New York State to tax the incomes for the calendar year 1952 of two infants, 10 and 8 years of age respectively, who have moved from New York State to live with their personal guardians in California under order of the Surrogate’s Court of Onondaga County. They are sister and brother, and were orphaned by the deaths of both mother and father on May 14, 1951. Their nearest relatives at that time were a paternal grandmother of Syracuse, New York, and a maternal grandmother whose home was in Pennsylvania. The grandparents were not in good health nor in position to assume the actual care and custody of these children. Immediately after the death of the parents, the children went to stay with an aunt, Mrs. Dorothy Crouse Witherill, at Cazenovia, New York. Mrs. Witherill had a son, Liston A. Witherill, who was then about 25 years of age and resided with his wife, Carolyn S. Witherill, and their 2-year-old son at 2047 Walgrove Avenue, Venice, California. A first cousin of these infants, Liston Witherill, was their only relative who was married and in the age group ordinarily best suited to bringing up young children. He and his wife, Carolyn, were willing to become guardians of the person and have these children grow up in their home as part of their family. The children have lived with them in this relationship since the issuance of letters of guardianship of the person on July 11, 1951. These infants maintained no permanent place of abode in the State of New York during the calendar year 1952, nor were they at any time within this State during the calendar year
Petitioner, First Trust & Deposit Company, of Syracuse, New York, was appointed guardian of the property of these children. Each is entitled to trust income, on which an income tax has regularly been paid to the State of California. Nonresident income tax returns have been filed in New York State.
The New York State Tax Commission has determined that these children are domiciled in New York State and not in California, and, furthermore, that they are not exempt from New York State income taxation under section 350 (subd. 7) of the Tax Law of New York, which exempts persons who, though domiciled in New York, maintain no permanent place of abode within the State but who have permanent places of abode without the State and spend not to exceed 30 days of the taxable year within the State. These children were not within New York State upon any day within the taxable year, and maintained no permanent place of abode here. Their exemption was defeated under this subdivision on the theory that, although they had lost any permanent place of abode in New York by going to live in California under the letters of guardianship issued by the Surrogate, they have acquired no permanent place of abode in California being bereft of volition due to their infancy, and so, by legal fiction, incapable of acquiring any permanent place of abode elsewhere. It does not appear on what principle the Appellate Division found that their permanent place of abode in New York had been surrendered without another permanent place of abode being acquired. The exemption of section 350 (subd. 7) was held to be inapplicable on the theory that they have no permanent place of abode anywhere. In legal theory infants, under such circumstances, would be condemned to float around in a sort of limbo, without roots in any State, if this reasoning were sound.
Their income appears to be taxable under section 17013 of the California personal income tax law, regardless of the outcome of these proceedings, which includes as residents of California for purposes of taxation 1 ‘ every individual who is in this State for other than a temporary or transitory purpose ”. In the opinion of California counsel these infants are taxable as residents of California, which view is shared by counsel for the California Franchise Tax Board.
The controversy usually has focused upon whether the guardian can change the domicile of his ward. Chancellors Kent and Walworth took a liberal view of the power of the guardian in this respect (Kent’s Comm., part IV, lect. XXX, p. 227; Wood v. Wood, 5 Paige Ch. 596, 605). Distinctions have been drawn between natural or testamentary guardians, upon the one hand, and merely court-appointed guardians upon the other. In the latter instance, it makes a difference (according to a number of the authorities — including the Appellate Division in this case) whether the guardian acts with or without the order of the Surrogate. In the cases of Seiter v. Straub (1 Dem. 264, 269) and Lamar v. Micou (112 U. S. 452, supra), relied on by the Appellate Division, it is recognized that a natural guardian or a testamentary guardian may change the domicile, the United States Supreme Court stating in the latter case “that a testamentary guardian has the same control over a ward’s domicile as the father, and may
The situation described is similar in some respects to that presented in White, v. Howard (52 Barb. 294, affd. 46 N. Y. 144), regarding which the same annotator states at page 872: “ But where the minor’s surviving father appointed a testamentary guardian resident in another state, evincing an intention that the child should go there to reside with her guardian, and the child did so and remained in the other state until her death, it was held in White v. Howard * * * that the guardianship changed the child’s domicile from the state of her father’s death to that of her subsequent residence, so as to control the descent of her property upon her death intestate.”
It is said in Kennan on Residence and Domicile (p. 285, citing Delaware, L. & W. R. R. Co. v. Petrowsky, 250 F. 554 [C. C. A. 2d], cert, denied 247 U. S. 508) that where a parent (in the instant case the grandparent) “ surrenders the care and custody of his minor child to one who agrees to assume such care and custody, and to provide for such child for the whole remaining period of his minority # * * the child acquires the domicil of the person who assumes this responsibility ’ ’. In this instance it is not necessary to determine whether a court-appointed guardian of the person is empowered in every case to change the domicile of his ward to another State, as Chancellors Kent and Walworth and other learned judges and textwriters appear to have thought (cf. Matter of Kiernan, 38 Misc. 394, supra; Matter of Robitaille, 78 Misc. 108, 115; Kennan, op. cit., p. 286; Stumberg on Conflict of Laws [2d ed.,
Here the paternal grandmother was the natural guardian, and on her petition for that express relief the Surrogate of Onondaga County appointed the Witherills joint guardians of their persons. They were established permanent residents of California at the time of their appointment, which was an open and manifest fact, and the Surrogate’s order in this context is to be construed as having been designed to send these children to California sine die at the instance of their natural guardian who was the paternal grandmother. The maternal grandmother was cited, but no objection to this disposition of these children was made by her or by any party to the proceeding. Cases such as Matter of Rothfeld v. Graves (264 App. Div. 54, affd. 289 N. Y. 583) or Matter of Ratkowsky v. Browne (267 App. Div. 643) regarding the domicile of incompetents are not controlling. The mere transfer of a person to a sanitarium for treatment or confinement on account of mental illness does not alter the legal domicile. Infancy and incompetency are alike in that both involve disability, and in neither instance is the domicile ordinarily capable of being changed by an act of volition on the part of the ward. In this respect infancy and incompetency are similar, but they are not comparable where the domicile of an infant is changed by the natural guardian or by order of the court, as was pointed out by the Surrogate of Kings County in Matter of Webber (187 Misc. 674, 678).
The difference between an infant and an incompetent is illustrated by the facts in this case, where these children were not sent to Westport or Stockbridge for confinement or cure, but to grow up and live in another State. When the Witherills were appointed as guardians of the person, the Onondaga County Surrogate did not expect that these guardians would change their domicile to New York State. The clear purport of his order made at the instance of their natural guardian was that these children should go to California, with the deliberate intention that they should enter a new environment in which they were to spend their formative years, with the manifest idea that they would adapt to the changed surroundings and live in the new community with as much permanency as life
Even if the domiciles of these infants remained in New York, it would be artificial to deny to them the exemption granted by section 350 (subd. 7) of the New York State Tax Law, upon the sole ground that they do not maintain a permanent place of abode without this State. The material portion of this section
It is conceded that these children come within this exclusionary clause save only that by legal fiction it has been held that they do not maintain an abode without the State. It seems to us that they maintain a permanent place of abode in California by the same token whereby they ceased to have a permanent place of abode in New York State.
The orders appealed from are reversed and the prayers of the petitions granted, with costs to appellants in all courts.
Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Burke, JJ., concur.
In each proceeding: Order reversed, with costs in this court and in the Appellate Division, and matter remitted to the State Tax Commission for further proceedings not inconsistent with the opinion herein.