4 Redf. 82 | N.Y. Sur. Ct. | 1879
. The Surrogate.—The statute provides that the Surrogate of each county shall have exclusive jurisdiction within his county, to take proof of the last wills and testaments of all deceased persons, where the testator at, or immediately previous to, his death, was an inhabi
The testimony shows that.decedent was an unmarried man, born in Chenango County in this state, where he resided until some twelve years ago, at which time he sold a farm that he owned, and some of his furniture. A small portion of the furniture, however, was not sold, but deposited with a relative in that county, on which he paid storage to the time of his decease. He visited his old home about once a year, remaining with some of his relatives and friends, and collecting some interest on notes which he held against persons residing in that county. About twelve years ago he came to the city of Hew York, and from time to time deposited money in savings banks, and drew out money for the purpose of investment upon property in this city. While in the city he stopped at a restaurant called the u Home-Made Dining Booms,” on Greenwich street. He said, to some of his relatives and acquaintances, that his “ headquarters” were at that saloon, where letters might be addressed to him. It appears, in evidence, that he occupied an inferior room at the dining saloon temporarily, as a transient customer, sometimes occupying one room, and sometimes another, but on his departure he never retained his room. Some of the witnesses testify that when he first came to the city, they were of the impression that he remained the greater part of the year here, visiting Saratoga and Canada in the summer season, and
In Isham v. Gibbons (1 Bradf., 69), it was held that in the provisions of the statutes relating to testamentary, matters, the terms “residence .and inhabitant” have the. same acceptation, andaré to be construed in reference, to. . the domicil of the decedent. In .Graham v. Public Administrator (4 Bradf., 127), it was held that a domicil could be acquired only by residence - with the intention of remaining at the-.new place of abode.; that intention, alone was not sufficient, and that it was a well settled principle, that for the purpose of succession, every person -must have a domicil somewhere, and that the domicil of origin is- not lost; until a new one is acquired.
It is clear that the decedent’s domicil of origin was in Chenango.County, and that he did not- lose that- domicil of origin until he had departed therefrom and located elsewhere, with an intention of remaining there. How,
question in doubt as to whether he ever intended to ■ change his domicil of origin, and if so, what location' he had selected for his future domicil. But there is' testimony, which seems to' me sufficient to create a preponderance, "and to éstablish the fact, that he' regarded Smyrna as his home, and that he intended so to regard it, at a time ivllen there seems to have been no motive for misrepresentation.. For there is no evidence in the case to show that the motive of his registering himself as of New Jersey had any relation to his apprehension that he might be taxed"in this city ; that is a mere inference,' drawn by counsel from his miserly character, but which ■ does hot ainount to proof of any
I do not regard the fact that decedent’s principal investments, and the residence of his executors, were in the city, as sufficient to establish his domicil here, in view of the temporary nature of his sojourn, and his repeated declarations, corroborated by.the statement.contained in his last will and testament.
I am of the opinion that this court has no jurisdiction of the probate of this will, and that the proceedings for that reason should be. dismissed.
Ordered accordingly.