The opinion of the Court was drawn by
This case comes before us upon an appeal from a decree of the Probate Court, admitting to probate and allowing the last will and testament of Nathaniel Gil-man. It was proved by a copy, the original being beyond the jurisdiction of the Court.
The validity of the will is not questioned. But the testator left a large amount of property in the city of New York as well as in this State; and the will has been proved and allowed there, on proof of its execution merely, without any inquiry in regard to domicil. The Surrogate seems to have assumed that jurisdiction of the property conferred original jurisdiction of the will, whether the testator’s domicil was there or elsewhere. Even if his decree were conclusive, which cannot be admitted, no decree was made by him upon that point, or that was intended to settle it, as a judgment binding upon the Courts of any other State.
If the domicil of the testator, at the time of his death, was in New York, then his will should be allowed and recorded in this State as a foreign will. R. S., c. 64, § 8. And, in that case, the moveable property in this State would be disposed of, under the will, according to the laws of the State of New York. Jarman on Wills, 2. But, if his domicil was in this State, then the Probate Court here has original jurisdiction, and our laws must govern the construction of the will, and the disposal of the property. Harrison v. Nickerson,
It would be well, if possible, to have a distinct and clear idea of what we mean by the term " domicil,” before applying it to this case. It is no easy matter, however, to find a definition that has not been questioned. Vattel de
All definitions of this kind were criticised, with much force, by Lord Campbell, C. J., in the case of Regina v. Stapleton, 18 Eng. Law and Eq., 301, in which he suggests that, if one should go to Australia, with the intention of remaining there ten years, and then returning, his domicil could hardly be said to continue in England. If he should leave his family in England, as stated in the supposed case, his domicil might properly be considered there. But, if a citizen of Maine, with his family, or having no family, should go to California, to engage in business there, with the intention of returning at some future time, definite or indefinite, and should establish himself there, in trade, or agriculture, it is difficult to see upon what principle his domicil could be said still to be here. His residence there, with the intention of remaining there a term of years, might so connect him with all the interests and institutions, social, and public, of the community around him, as to render it not only proper, but important, for him to assume the responsibilities of citizenship, with all its privileges, and its
Other definitions have been given, which, though more general, are better adapted to. determine the case at bar. Thus Story, in his Conflict of Laws, says that one’s domicil is "his true, fixed, permanent home, and principal establishment, to fidiich, whenever he is absent, he means to return.” And, in Munroe v. Munroe, 7 Cl. & Fin., 877, Lord Cottenham says that, to effect the abandonment of one’s domicil, and to substitute another in its place, "is required the choice of a place, actual residence in the place chosen, and that it should be the principal and permanent residence.”
That the testator’s. original residence was in Waterville, is admitted. There he established himself in business, accumulated property, was married, and owned a house, in which, either continuously, or at intervals, he resided, with his family, until he died there in 1859.
It has been laid down as a maxim on this subject, that every person must have a domicil somewhere. Abington v. North Bridgewater, 23 Pick., 170. This may be doubtful, in its application, to some questions. A life may be so vagrant that a person will have no home in any city or town, where he can claim any of the rights or privileges appertaining to that relation. But, in regard to questions of citizenship, and the disposition of property after death, every person must have a domicil. 1 Amer. Lead. Cas., 725, note. For every one is presumed to be a subject of some government while living; and the law of some country must control the disposition of his property upon his decease. It is therefore an established principle of jurisprudence, in regard to the succession of property, that a domicil once acquired continues until a new one is established. Therefore the testator’s domicil must be considered in Waterville, for the purpose of settling his estate, unless he had
It appears in evidence that he commenced business in New York about 1831, at first being there transiently; that in 1836 or 1837, having been married a second time, he was in the habit of spending considerable time there with his family, at the’Astor House, and other hotels; that he hired a house there, in which he lived portions of the year from 1841 to 1844; that he bought a house in Brooklyn, which he occupied at intervals from 1847 to 1852 ; that he bought a lot in Greenwood Cemetery, on which he built an expensive tomb; that, after 1836, his principal business was in New York, and that several of his children were married and settled there in business. But he never disposed of his house in Waterville; he always kept it furnished, in repair, and supplied with fuel; he- kept a horse and carriage there; he generally spoke of Waterville as his home; and, with the exception of one or two years, (and during those years he did not keep house anywhere else,) he lived in his house there, a portion of the year, with his family. .
A person may have two places of residence, for purposes of business or pleasure. Thorndike v. Boston,
If any general rule can be applied to such cases, we think it is this ; that the domicil of origin, or the previous domicil, shall prevail. This is in accordance with the general doctrine, that the forum origines remains until a new one is acquired. 3 Kent, 431; Kilburn v. Bennett,
If we apply this rule to the case at bar, it will bring us to the conclusion that the testator’s domicil in Waterville remained unchanged. Are there any facts that should make this case an exception to the rule ?
The testator continued to vote in Waterville about one half of the time. There is no evidence that he ever voted in New York. Plis manner of life there, boarding generally at hotels, where he always registered his name as from "Maine,” renders it probable that he never claimed or was admitted to be a voter in that city.
He paid a tax upon personal as well as real estate in Waterville, a few of the years after he went into business in New York. Pie does not appear ever to have paid any tax in the latter place but one year. He evidently belonged to that class of men, fortunately small in number, who have
These facts have little tendency to establish anything but the intention of the testator. Residence, being a visible fact, is not usually in doubt. The intention to remain is not so easily proved. Both must concur in order to establish a domicil. Harvard College v. Gore,
During the last twenty years of the testator’s life, his ruling purpose seems to have been, to accumulate property abroad, and escape taxation there and at home. This led him to sacrifice, to a large extent, the enjoyments of domestic life, and to sever or neglect all those social ties which might have given him position and influence in the community. He pursued this process of isolation, because, while it did not interfere with his gains, it diminished his expenses. This was what rendered his domicil a question of doubt.