19 Ohio App. 404 | Ohio Ct. App. | 1924
Mendum E. Blumenberg died intestate at Washington, D. C.., June 21, 1922. On July 13, following, Minnie P. Blumenberg, his widow, was appointed administratrix of his estate by the Probate Court of Athens county, Ohio. On September 15, 1922, a motion was filed in that court by
The motion proceeded to judgment in the Probate Court and was taken thence by appeal to the Court of Common Pleas. That court denied the prayer of the motion to vacate, and error is now prosecuted to this court from that judgment.
In this court it is argued that there were some erroneous rulings in the trial court in the admission of evidence, but we find nothing sufficiently serious to warrant extended consideration. The only question of moment is whether the judgment of the Common Pleas is clearly opposed to the weight of the evidence or contrary to law.
There are certain facts, either established by documentary proof or by equally unequivocal conduct, that tend in some degree to support the views of both of the contending parties. The plaintiffs in error show that in 1896 Mr. Blumenberg in writing petitioned a lodge in Washington, asserting himself to be a resident of that city; that for a number of years he filed his income tax returns as a resident of Washington; that for several years last past he made a personal property return for taxation in the District of Columbia; that in 1918 he registered under the selective draft law as a resident of the District; that in 1902 he was married by virtue of a license that gave his residence
Section 10604, General Code, provides that on the death of an inhabitant of this state letters of administration shall be granted by the Probate Court of the county of which the decedent was an inhabitant or resident. The term “inhabitance” is a narrow one and means an actual abiding place at the point in question, as distinguished from domicile, by which is meant one’s legal relationship to the indicated place. Century Dictionary. If an exclusive interpretation were to be given the sec
“The Probate Court is a court of record and its jurisdiction in matters testamentary and in the appointment of administrators and guardians has been broadly given by the Constitution of this state. Article IV, Sections 7 and 8. The jurisdiction is plenary and it may well be doubted whether the legislature, if it chose to do so, could in any respect limit it.”
Section 8, Article IV, of the Constitution, provides :
“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, * * * and such other jurisdiction, in any county or counties, as may be provided by law.”
It seems clear that the Probate Court, like other courts, must be open to all citizens whether habitants of the state or not. There is no machinery for the distribution of personal property except through the medium of an administrator, and as a decedent’s personal estate is necessarily governed by the law of his legal domicile the courts of such domicile cannot be denied those seeking their offices in the distribution of such estate. The statute quoted, so far as it refers to inhabitant, is an extension, not a limitation, of the jurisdiction of the
That Blumenberg was a resident of the District of Columbia for some purposes is true. To illustrate, he was a non-resident of Ohio and a resident of the District so far as the Ohio law of attachment is concerned. Thomson v. Ogden, 3 C. C. (N. S.), 51. He was doubtless such resident of the District that he was obliged to return for taxation at that place such tangible personal property as was in. the District at the time the return was required. Residence in these restricted senses is not inconsistent •with another more or less technical residence incident to legal domicile.
“A person may have more than one residence at the same time, but can have only one domicile, at least for purposes of succession.” In re Jones Estate, 192 Iowa, 78, 182 N. W., 227, 16 A. L. R., 1286, 1289.
“ ‘Domicile,’ strictly speaking, is the relation the law created between an individual and a particular place or country, and each case is dependent upon its own particular facts. It is not in a legal sense synonymous with ‘residence.’ A person may have more than one residence and more than one home, in the ordinary acceptance of those terms, but he can have only one domicile, and the law requires that for the purpose of the succession of his property he be domiciled somewhere. The word ‘home’ is undoubtedly the fundamental idea of domicile, though calling a place ‘home’ as a matter of fact may not be and often is not entitled to much weight. Jacobs, Domicile, Section 72. To constitute domicile there must be both the fact of a fixed habitation or abode in a particular place and an intention to remain there permanently or indefinitely; or, as Mr. Wharton says: ‘There must be: (1) Residence, actual or inchoate; (2) the non-existence of any intention to make a domicile elsewhere. ’ Wharton, Conflict of Laws, See. 21. Domicile, therefore, is made up of residence and intention. Neither, standing alone, is sufficient for the purpose. Residence is not enough, except as it is co-joined with intent, which determines whether its character is permanent or temporary; and clearly a mere intent cannot create a domicile.”
Let us consider the undoubted facts. Mr. Blu
The judgment of the Common Pleas is in harmony with the evidence and the law.
Judgment affirmed.