Hulett v. Hulett

| Vt. | Jan 15, 1865

Poland, Ch. J.

The defendant claimed at the trial that he was a resident of the state of New York at the time administration was granted in this state to the plaintiff on the estate of Silas J. Hulett, and continued a resident there until after this suit was brought, so that if there was any debt due from him to the intestate, it was assets in that state, and could only be recovered by an administrator there, and not by the plaintiff.

The plaintiff was appointed administrator October 80th, 1861, and commenced this, suit February 17th, 1862.

It seems to have been conceded that about the 1st of April, 186.1, the defendant commenced boarding with one Wood in Fairhaven in this state, and continued to board at the same place until after the commencement of this suit. The defendant claimed that his stay in Fairhaven was temporary merely, with no design to make that place his home or permanent- residence ; that he considered his residence or home all the while to be in Hampton, in New York, that his property and business were there, that he exercised his right as a citizen there, by voting at public elections, and performed the obligations of citizenship and residence there, by paying taxes upon personal property, which by ordinary legal rules follows the legal residence of the owner.

The whole question turned upon the character of the defendant’s stay or abode in Fairhaven. Was it temporary merely as the defendant claimed ? or was it permanent, with a purpose and intent to make that his residence or home, as was claimed by the plaintiff?

The plaintiff for the purpose of showing that when the defendant came to Fairhaven in the spring of 1861, he intended to take up his permanent abode there, and to make that his permanent home or domicil, offered to prove that he had continued to reside or board there down to the time of the trial in March, 1864. This evidence on the defendant’s objection was excluded. If the only proper effect of this evidence was to show that the defendant had a residence or was domiciled in this state after the suit was brought, it was properly excluded, because that was not the question in issue, and if the fact was conceded, it would not aid the plaintiff to recover, if his previous domicil was in the state of New York. , 1

But the plaintiff claims that this evidence wqs admissible, as tendr ing to show the defendant’s intent when he came there in the spring of 1861, and during all the period of his stay there, up to the time .of bringing the suit. And we are all of opinipn th§t the evicjen.ce should have been received and submitted to the jury for that purpose. In determining the character of a person’s residence in a particular place, and with what intent such residence began, its duration is a most important element, and has always been so considered in all the cases upon this subject. One may take up his residence in a place and have a fixed residence or domicil while he remains, though it be but for a very short period of time, even for a single day.

On the other band one may remain for. a long time in a place without having it become his domicil, and be all the while a mere temporary sojourn. But where one’s stay in a place is short, and then he returns to his "former home, it affords some presumption or evidence that he went there for a temporary purpose, with no intent to remain, while if his stay or residence is protracted, and long continued, it furnishes a corresponding presumption that he designed to remain from the beginning. Other facts and evidence may overcome the presumption in either case, and show that the short stay was of a legally permanent character, and that the longer one was but a mere absence from home, working no legal change of residence. But this by no means prevents the permanence and duration of the stay from being admissible and important evidence on the question. Whenever the intent or mental purpose of a person becomes a question to be proved, his acts and conduct are admissible evidence, and often the best and only evidence of it, and his acts and conduct subsequent to the point of time when such intent is to be shown, are more satisfactory than those which precede or co-exist with it.

This defendant was allowed to testify as to his design and intent in coming to Fairhaven, that it was for a temporary purpose, with no design to remain and make that his home.

This was objected to on the ground that a party should not be allowed to swear to his intent or mental purpose, because it is not in the power of the other party to contradict him by similar evidence.

Of course the workings and purposes of the mind and will of a person are not known by mere consciousness to any one but the person himself, but still, where a person’s intent in a particular transaction is a question in issue to be tried, we see no ground on which he can be excluded from testifying to his intent. He can be contra-dieted only by his acts and conduct or declarations. But where a party swears to his intent, if his acts and conduct are shown to be wholly at variance and inconsistent with the intent he swears to, his own testimony in his own favor would ordinarily obtain very little credit with the jury ; and but little danger need be apprehended from such testimony unless his acts and conduct are consistent with it. But the plaintiff objected to the defendant’s being allowed to testify on the ground that he was not a competent witness at all, to any fact which transpired prior to the plaintiff’s appointmeut as administrator.

At the time this case was tried we think the defendant was not a competent witness to any fact prior to the appointment of the plaintiff as administrator. Sec. 24, chap. 86, G. S., 327, was evidently designed to exclude one party from testifying, when the other party had deceased, and was represented by an executor, with some exceptions, none of which cover the case of the defendant’s admission here, so that he was erroneously admitted.

But by the act of November 22d, 1864, the defendant is made a competent witness, as this action was pending on the first day of August, 1863, and the defendant claims that if he was erroneously admitted to testify, the court should not reverse the judgment and grant a new trial for such error, because he would be a witness on another trial.

This hardly seems a sufficient answer, because the plaintiff might have been surprised by his being admitted, and might have failed to. meet or contradict his evidence at the trial for that reason. But we have no need to say whether this alone would induce us to grant ^ new trial.

The plaintiff objected to the defendant’s being allowed to testify that he had paid taxes on his personal property in Hampton, N. Y. It does not appear from the exceptions what this personal property was, or where it was situated. If the property was in this state in the possession of the defendant, as money or debts or stocks that had no visible locality, it would be quite a cogent circumstance that the defendant regarded his legal residence in Hampton. If it was visible personalty, like horses, cattle or carriages, and situated jn New York, it might be taxable there though the defendant’s residence was in this state. That would depend on the law of that state, of which nothing appears in the case. In some states the general rule of law that personal property has no situs, and follows that of the owner, is regarded in their law of taxation, in others it is not, and all property in the state, both real and personal, is made subject to taxation, wherever the owner resides. But in the absence of any evidence as to the law of New York on the subject, we think it was admissible to show that the defendant paid taxes on his personal estate there, as an act of his which had a tendency to show that he considered that his legal residence. If the law of New York was such, or this property was of such a character, or so situated, as to make that fact of no importance, it should have been shown by the plaintiff as an answer to this evidence. The testimony of Rayder seems to have been wholly immaterial. It tended to show that the defendant’s residence was in Hampton at a time when the plaintiff conceded that was his residence, and the plaintiff can hardly complain that the defendant was permitted to prove a fact which he- conceded to be true, even if it was immaterial, as we cannot see it prejudiced him.

Judgment reversed and case remanded.