107 Tenn. 355 | Tenn. | 1901
The question presented for determination upon this record is, whether Bella Has-call, widow of H. C. Hascall, is entitled to homestead, the exempt property, and to a year’s support out of the estate of her deceased husband. The solution of this question involves the further inquiry, whether the said H. C. Hascall, at the time' of his death, was a citizen of the State of Tennessee. It is conceded that the said Bella Hascall, at the time
It appears from the record that H. C. Hascall died in Lauderdale County, Tennessee, on November 13, 1899, and, by last will and testament, devised his entire • estate, both real and personal, to his wife, Bella Hascall. The testator left, surviving him six children, two of whom are minors. The will was duly admitted to probate, and the widow dissented therefrom. Coleman Halford qualified as administrator, and filed a bill in the Chancery Court for the administration of the estate. The widow claimed the homestead, the exempt property, and a year’s support out of the assets of the estate. The administrator resisted the claim of the widow, on the ground that the testator and his wife, at the time of his death, were residents and citizens of the State of Michigan. Mrs. Hascall averred that her husband,
Respondent admitted that she resided at Flint, in the State of Michigan, and had remained there, at her husband’s request, for the purpose of completing the education of their children; that from time to time she had contemplated taking up her permanent residence with her husband at Gates, Tenn., but had delayed doing so until the education of their children might be finished. During the progress of the cause, a reference was made to the Master to take proof and report whether or not H. C. Hascall was a citizen of the State of Tennessee at the time of his death, or whether he and his family were citizens of Flint, Michigan, and only temporarily in Lauderdale County, Tennessee. In obedience to this reference, the Master reported that H. C. Hascall was not a citizen of Tennessee at his death, but that he and his family were citizens of Flint, Mich. Exceptions were filed to this report by counsel for the widow, and also by the guardian ad litem for the minors, which exceptions were overruled by the Chancellor, and the report confirmed. This action of the Chancellor is assigned as error. On the other hand, it is insisted by counsel for the administrator that this is a concurrent finding by Master and Chancellor on a question of fact, which is conclusive and binding on this Court. This rule of
We are not, therefore, concluded by the concurrent finding of Master and Chancellor on this subject, since it was not a proper question to be referred to the Master. So that, disregarding the report of the Master, we proceed to examine the question as an original proposition. It is said, in the first place,- that there is a distinction between citizen and resident, and that the latter term was used by this Court in Graham v. Stuhl. It was held in that case that the statute, providing for a year’s support for the widow, applies only to the widow of such person as may be residing in Tennessee at the time of his death, and does not apply to the widow of a nonresident. But it is very clear that this Court, in the latter case, used the word residence as interchangeable with domicile, and did not intend to draw any distinction between the terms citizen and resident. It is true this distinction has been recognized by this Court in attachment cases. In Stratton v. Brigham, 2 Sneed,
It was held that a defendant in an attachment bill who had moved his family and effects to this State from the State of his former abode, hired servants, rented a house for a year, with the privilege of retaining it longer, opened an account at the bank, rented a box ■ at the 'postoffice, and had undertaken and was engaged in prosecuting a rail-' road contract, which might occupy two or more years, was held to be a nonresident in the sense of our attachment laws. That was an attachment bill against the defendant as a nonresident. It was held he was a nonresident. See Southern Railroad Co.
But this distinction is not applicable to cases of homestead and exemption, but the question in such cases is one of. domicile. Mr. Brown, in his Law Dictionary (Rawles’ Revision), page 905, defines resident as a person coming into a place with intention to establish his domicile or permanent residence, and who, in consequence, actually remains there. • Time is not so essential as the intent, executed by making or beginning an actual establishment, though it be abandoned in a longer or shorter period.” Domicile is defined as 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.” So that, at last, the question is whether the deceased had acquired a domicile in this State; for, in order to be a citizen or resident, the party must have acquired a domicile. To constitute domicile, two things must concur — residence and intention to make it home of party.
It appears from the record that, when the deceased removed to Tennessee, he left his wife and children at their home in Flint, Michigan, where he had always lived. The family remained there until the date of H. C. Hascall’s death; but in the meantime, they occasionally visited each other, back and
We are of opinion the Chancellor was correct in holding that H. C. Hascall was, at the time of his death, a nonresident of Tennessee, and that his widow was, therefore, not entitled to homestead, exempt property, or year’s support.
Affirmed.