181 Mass. 162 | Mass. | 1902
The question in this case is whether the petitioner had his domicil in Brookline in this Commonwealth on May 1, 1899, or whether on that day he was domiciled in Newcastle, in the State of Maine. The judge has found as a fact that the petitioner left Brookline in 1887, and went to Newcastle, intending to make the last named place his permanent home, and that he did this with an honest intention to change his domicil or permanent residence from Brookline to Newcastle, with the intention also of making the latter the place of his permanent and real home, as distinguished from a mere place of summer resort, and further that, down to the time of the assessment of the tax in 1899, the petitioner had not returned to Brookline with the intention of leaving Newcastle and making Brookline his permanent home.
The respondent made fifteen requests for rulings, all of which were given except four, and one of these was waived; and the case is before us upon the respondent’s exceptions to the refusal to give the other three rulings, namely the ninth, eleventh and twelfth.
The ninth request is to the effect that the facts that the petitioner, in September, 1886, and on March 12, 1887, notified the selectmen of Newcastle, Maine, of his intention to become a resident of that town, are incompetent, immaterial and inadmissible. It is very clear that this instruction could not be given as a whole. While the fact that he gave the notification in September, 1886, might well have been excluded as immaterial, yet that given on March 12, 1887, a few weeks before be left Brookline and took up his abode in Newcastle was admissible as qualifying and giving character to the act done. Thorndike v. Boston, 1 Met. 242. Kilburn v. Bennett, 3 Met. 199. Cole v. Cheshire, 1 Gray, 441. Viles v. Waltham, 157 Mass. 542. As the respondent did not ask for a separate ruling as to the declaration of September, 1886, the exception must be overruled.
The eleventh ruling requested is as follows: “ Upon all the evidence in the case, the court would not be justified, as matter of law, in finding for the petitioner, or in ordering, an abatement of any part of the tax asséssed upon him, or in ordering judgment in his favor.” The admitted facts in the case are not numerous and may be briefly stated. On May 1, 1899, the
As the judge who heard the case in the court below has made a finding of fact in favor of the petitioner, the only question before us is whether he was warranted in so finding. The case was submitted to him on certain facts admitted to be true, subject to their competency and materiality, and he also had the power expressly given him to draw such conclusions of fact from such of the facts as were competent and material, as might be necessary for a decision of the cause. The judge excluded many admitted facts, at the request of the respondent, and these we have not stated. We have no doubt that his finding in favor of the petitioner was fully warranted.
“ The question what constitutes domicil is mainly a question of fact, and the element of intention enters into it.” Olivieri v. Atkinson, 168 Mass. 28. See also Wright v. Boston, 126 Mass. 161, 163.
If a man owns land in two towns, he may determine where his home shall be, and thus incidentally where he shall be taxed. Fisk v. Chester, 8 Gray, 506. He may even change his domicil from one town to another merely because he wishes to diminish the amount of his taxes. Draper v. Hatfield, 124 Mass. 53. Nor is there anything in law which prevents his living in two States in different parts of the year, although he can have but one domicil.
The petitioner’s evidence that he intended to change his domicil was believed by the judge, and this was accompanied by the physical facts above set forth; and on the whole evidence it cannot be said, as matter of law, that the finding was wrong. If a change of domicil had been effected, the fact that the petitioner was in Brookline on the first day of May is of no consequence.
The twelfth request for instructions was refused, as the judge has expressly stated, because of his finding of fact which we
Exceptions overruled.