31 Barb. 475 | N.Y. Sup. Ct. | 1860
This is an appeal from a decree of the surrogate of Kings county, adjudging that the respondent, as the widow of Austin D. Moore, was entitled to one third of all his personal property, absolutely, and notwithstanding the provisions of his will. The surrogate made this decision upon the ground that Austin D. Moore was, at the time of his death, domiciled in the state of Florida. The laws of that state were proved, and it appeared .that they provide for a distribution to a widow of one third of the personal estate of which her husband should he possessed, notwithstanding any disposition of it by will. This is not disputed; nor is the rule denied that the law of the place of domicil will control the disposition and distribution of personal property, in cases both of testacy and intestacy. The question is, whether the surrogate correctly decided that Austin D. Moore had, at the time of his death, his domicil in Florida.
A domicil has been described by American authorities as residence at a particular place, with an intention of remaining there an unlimited time) and the definition is cited with approval by a learned civilian, who has published a very excellent compendium of the law upon this subject. (See 1 Binney, 349; 16 John. 128; 8 Cranch, 253; Phill. on Domicil, 13.) There must be both the fact of abode and the intention of remaining indefinitely, to constitute a domicil. Both must therefore be proved. The first is readily proved as a single fact) the other may be established by declarations of the party or by his conduct, which is at least as satisfactory evidence as his declarations, upon such a question.
Mr. Moore was born in Massachusetts, and after residing successively in various places in that state, he removed to Hew York city and went into business. He married there, and accumulated a considerable property. Some six or seven years before he went to Florida, he left Hew York and went to reside in Williamsburgh. At or after this time he relinquished business, and invested his accumulations in real estate, mostly in Brooklyn and Williamsburgh, in bonds and mortgages probably upon property in the same locality, and in Williams-burgh ferry stock. He kept house with his family in a dwelling which he owned in Williamsburgh, and was no doubt domiciled in that place until he left for the south.
It is true that this domicil in Kings county, Hew York, continued until he had abandoned it and acquired another, in fact and in purpose. If he was not, at the time of his death, a resident of Florida, he was a resident of Williamsburgh; the question is between these two domicils. But it is not a question between two actual domicils in fact and in intention, which ought to be considered the principal. I can see no indication that the testator retained his domicil in Williams-burgh in fact or in purpose. If that still continued to be his residence, it must be because he had not, at the time of his death, acquired another residence in any definite place, and therefore his previous domicil continued, in the view of the
The question then is whether he acquired a residence in Florida, or whether he continued a mere traveler, with no intention of becoming domiciled any where, after he left this state, and therefore continued to hold a legal domicil here. The proofs are, we think, sufficient and satisfactory upon this point. I refer to the proof of his acts, rather than to his written or spoken declarations. To the evidence of what he said, at various times, I attach little importance. It comes to us impressed with the character of the particular mood of the man when he uttered it, which no doubt varied and was affected by the condition of his health, by his family circumstances, and by other causes. It is colored more or less by the medium through which it comes, and it depends altogether
I consider Mr. Moore, as I have already said, to have formed and manifested a purpose of abandoning his New York domicil, when he sailed for the south. I find in his subsequent acts satisfactory evidence that having abandoned his former domicil he determined not to live as a sojourner or a
Against all the acts, declarations and motives which have been thus briefly alluded to, there are no facts to be set, except the estate in real and personal property which the testator retained in Kings county, and his previous domicil there; and this I find every evidence of his design to abandon at any rate. These facts, considered in themselves, appear to me clearly insufficient to countervail the preponderance of evidence in favor of the Florida domicil.
But it is said that all the acts and manifestations of purpose which are proved in the case are deprived of their effect, and that whatever the testator did, could not legally produce a change of his domicil, because these acts were done under the stress of impaired health, and the change which' he made
There was one exception taken in the course of .the hearing in the surrogate’s court which was strongly pressed upon our notice. In the progress of the trial it was deemed important to introduce portions of the correspondence of Mr. Moore, in order to show his motives and intentions. A Mr. Field, to whom a number of these letters had been addressed, was. called as a witness by the respondent, and proved certain letters, portions of which were read and the residue suppressed on his statement that it was confidential between him and the testator, and immaterial to the cause. This was done without Objection by any party. Subsequently the same witness was
The decree of the surrogate is affirmed.
Lott, Emott and Brown, Justices.]