149 N.Y.S. 536 | N.Y. Sur. Ct. | 1914
This is a transfer tax proceeding, in which the appraiser files his report setting forth the assets of the estate and its distribution, subject to the determination of the true domicile of the deceased by the surrogate.
The recitals of the assets in the report of the appraiser are based upon the fact that the decedent died domiciled in our county of New York. Exceptions were filed to so much of the appraiser’s report as found that the decedent was at the time of his death a resident of the county of New York; to so much of the report as appraises the estate of the deceased on the basis or theory that the deceased died
The facts apparent in the record are substantially as follows: Mr. Mesa y Hernandez died on the 29th of November, 1908, at one of his plantations called “Colonia Violet.” This plantation was named for the daughter of the deceased, and was situated at Aguade de Pasageros in the republic of Cuba. Deceased left him surviving a widow, Josefina Garcia Pola Mesa y Hernandez, and two sons, Tirso Luciano Mesa and Hannibal Justo Mesa, and one daughter, Violet Hope Mesa. His body was thereafter removed to the town residence of the family of deceased, No. 2 San Lazaro, in the city of Havana, Cuba, where the funeral rvas held. His body was thereafter interred in the family mortuary chapel in the Cristobal Colon cemetery at Havana. Deceased had built this chapel in 1904 at a cost of some $17,057.12; the burial vaults therein being five in number, corresponding to the number of the members of his family.
The deceased, whose proper name is Tirso Mesa, but who, in accordance with the Spanish custom of adding the mother’s name, is described as Tirso Mesa y Hernandez, was born (as the undisputed testimony of the widow and of his two sons and his private secretary, Juan Jose de Mutiozobal, shows) in the town of Colon, in the island of Cuba, in 1848, and he resided in that island until his marriage on February 24, 1881, to Josefina Garcia Pola, who is also a native and resident of the aforesaid town of Colon. At the time of their marriage the spouses were both subjects of the king of Spain, and their marriage was contracted under the community system of the Spanish law, in substance providing for a partnership in and joint ownership of all the property acquired by a husband and wife during marriage, the management thereof being vested in the husband. By such law, upon the death of either husband or wife, the debts and the amount which each spouse originally brought to the marriage is deducted from the joint estate, and the remainder composes the net joint estate. Of
It appears that after their marriage the deceased and his wife went to live at their sugar plantation “La Vega,” at Manguito, Cuba. The first time that Mr. Mesa y Hernandez left the island of Cuba appears to have been in the summer of 1888, when he went to Saratoga for a month, pursuant to a physician’s order, to recruit his health. In 1889 he was again away from Cuba during the month of July, during which absence he visited the Paris Exposition and spent a short time at Saratoga to recruit his health. His family remained in Cuba while he made these two trips. In 1890, 1891, 1892, and 1893 the deceased gentleman and his family spent about a month each summer in New York for their health and pleasure. Each time they visited New York they sojourned at hotels, principally the Holland House, but sometimes the old Plaza Hotel or the Majestic. The balance of the time, during all these years, was spent by deceased in Cuba. From July, 1894, until January 27, 1900, Mr. Mesa and his family traveled much in Europe and the United States. They spent two weeks in New York in July, 1894, and then they went to Europe, where they traveled for two years, or until June, 1896. The last insurrection in Cuba began in 1895, and culminated in the war between the United States and Spain, ending in 1898. On returning from Europe in 1896, decedent had trouble in getting home to Cuba on account of the war. He and his family proceeded as far as Port au Prince, where they learned that their house on the “La Vega” estate had been burned down in July, 1896. They spent the next two years, until May, 1898, traveling in the United States, going as far west as Colorado. They then again proceeded to Europe, where they remained until January 27, 1900, except for a three weeks’ visit to Cuba in December, 1898.
After the war with Spain' was finally ended, Mr. Mesa y Hernandez arranged for the rebuilding of his house at “La Vega.” They returned to Cuba in February, 1900, after the period of traveling was over and the new house at “La Vega” had been completed, and then actually lived at “La Vega.” Such furniture as had been burned with the house they replaced with new furniture, which decedent had purchased in London and elsewhere for that purpose. Decedent and his family continued to make their home at “La Vega” until 1904, when he purchased a town residence in Havana, Cuba, at No. 2 San Lazaro, and thereafter they occupied both “La Vega” and the town house in Havana'as family residences. In the spring of each year, from 1900 down to the year of his death, 1908, Mr. Mesa y Hernandez and his wife would go to Europe and spend from six to nine months each year traveling in England or on the. continent. Necessarily they passed through New York twice each year on these journeys to and from Europe. They would remain in New York on these occasions only a few days while awaiting the sailing of the steamer to Europe or to Havana if they were returning home. The longest time they
A detailed schedule of the places of actual inhabitancy of the decedent has been put in evidence by the beneficiaries. It shows the time spent by the decedent in New York state from his birth in 1848 until his death in 1908 was as follows:
Tear. Time Spent in N. T.
1888.................................................One month
1889 .................................................Two weeks
1890 .................................................One month
1891 .................................................One month
1892 .................................................One month
1893 .................................................One month
1894 .................................................Two weeks
1896 .................................................Five months
1897 .................................................Six months
1898 .................................................Four months
1900 .................................................Ten days
1901 ........;........................................Three weeks
1902 .................................................Two weeks
1903 ..................................................Ten days
1904 .................................................One week
1905 .................................................Three weeks
1906 .................................................Three weeks
1907 .............'....................................Five weeks
1908 .................................................One week
During the same years decedent spent S1/^ times as much time in Europe as in America as shown by the following schedule:
Tear. Time Spent in Europe.
1889....................................Two weeks -
1894 ...................................'.Five and one-half months
1895 ....................................Twelve months
1896 ....................................Six months
1898 ....................................Six and one-half months
1899 ....................................Twelve months
1900 ....................................Seven months
1901 ....................................Seven months
1902 ....................................Nine months •
1903 ..............:.....................Four and one-half months
1904 ....................................Five months
1905 ....................................Four and one-half months
1906 ....................................Four and one-half months
1907 ....................................Five months
1908 ....................................Four and one-half months
The uncontradicted testimony of the members of the family of deceased, his wife, his two sons, and his private secretary shows that he always regarded “La Vega” as his home, and that in registering at hotels he gave "La Vega, Cuba,” as his residence. All the business interests of the deceased were in Cuba, where he was engaged in the sugar business, planting and growing sugar cane on plantations
On the other hand, the evidence offered to sustain a last domicile in the county of New York is about as follows: On the 21st of June, 1900, the decedent verified a petition as an applicant for admission to citizenship of the United States of America. In this petition he swore that he emigrated to the United States, landing at the port of New York on the 10th day of July, 1888; that he now resides at No. 55 West Twenty-Seventh street, in the city of New York; that he was over 21 years of age; that he resided continuously in the United States since July 10, 1888, and continuously within the state of New York since July 10, 1888. An affidavit by one Mr. Edward F. McManus is also attached to the petition in which he swears that he is a citizen of the United States; that he resides at No-. 72 West Eighty-Seventh street; that he is a merchant and that he personally knows that the applicant, Tirso Mesa y Hernandez, has resided continuously within the limits and in the jurisdiction of the United States of America since June, 1890, and continuously within the city of New York since June, 1890, and that during said time of his residence within the United States and within the city he had behaved as a man of good moral character, etc. The petitioner, the deceased, and his witness appeared before Mr. S. H. Lyman, in the United States District Court for the Southern District of New York, and were orally examined and the proofs taken upon this petition. He was then admitted to citizenship by the United States District Court of the Southern District of New York on the 23d day of June, 1900. These affidavits, upon which the certificate of citizenship was issued, were put
This will created a number of trust funds and provided for the payment of various annuities and legacies, and on several occasions the deceased stated to members of his family that he was aware that its provisions contravened the provisions of the Cuban law as to the right of a person who died leaving children to dispose of his property. It is suggested that this was the reason for stating that the domicile of deceased was in the city of New York, as the validity of 'the will might depend on the law c¿New York. In the will decedent named as executors Paul Fuller and Jose M. Andreni, whot were not related to him. This last will and testament of the deceased was probated in the county of New York upon the petition of these executors, alleging that the deceased died a resident of the county of New York. No objection was made to this probate by 'the beneficiaries or any party interested, and letters testamentary were accordingly issued by this court on the 29th day of January, 1909, to the executors named in the will. The question of the domicile of the deceased was not put in issue in the probate proceeding, or until the transfer tax proceedings were instituted. It is now argued by the state that all parties in interest in the probate proceeding, having failed to object to the finding that the decedent died a resident of New York county, are bound by that finding.
It is urged by the state that the naturalization of decedent by the United States of America, the declaration contained in decedent’s own will, and the statements of others made in the probate proceeding in this county and the decree entered thereon are conclusive evidence of decedent’s last domicile or last residence in this state. Domicile and residence, it may be noted, are not always convertible terms. Matter of Newcomb, 192 N. Y. 238, 84 N. E. 950. But the last place of residence may be the last domicile of one deceased. Tn this case the last residence was the last domicile of the deceased.
Grants of probate or administration are not conclusive as to the death of a testator or intestate. Mutual Benefit Life Ins. ,Co. v. Tisdale, 91 U. S. 238, 23 L. Ed. 314. Nor are they conclusive of the last domicile or residence of the deceased. Flatauer v. Loser, 156 App. Div. 591, 141 N. Y. Supp. 951; Matter of Grant, 83 Mise. Rep. 257, 260, 144 N. Y. Supp. 567; Concha v. Concha, 11 App. Cas. 541; Tilt v- Kelsey, 207 U. S. 43, 28 Sup. Ct. 1, 52 L. Ed. 95. Tilt v. Kelsey is relied on in behalf of the state, and it is claimed that the judgment there rendered supports the proposition that a grant of probate is a conclusive adjudication in rem on the question of last domicile. I do not so read the judgment in that case, which turns wholly upon the faith and credit clause of the federal Constitution.
That there is some inconsistency apparent in this record in the claims of the domicile of the late Mr. Mesa y Hernandez is evident. But it is not fatal to the conclusion that his last domicile was in Cuba. The proceeding for probate, although taken in the same court for this county, is distinct from this proceeding.
I therefore find and hold that the last domicile and residence of the late Tirso Mesa y Hernandez was in the republic of Cuba and not in the state of New York. The appraiser’s report will be remitted to him for correction in accordance with this decision.