116 A.D. 183 | N.Y. App. Div. | 1906
Lead Opinion
The testator died in Asbury Park, in the State óf New Jersey, on August 17, 1904, leaving a last will and testament which wias admitted to probate by the Probate Court of Sussex county, N. J., and subsequently the surrogate of New York county granted .ancillary letters testamentary. • The only substantial question presented on this -appeal is, whether the surrogate correctly decided, Upon a preliminary investigation by him5 that the_testator died1 a resident of the State'of New York. He died on August 17, 1904, He Was born, in the town of Newton, N. J. He appears to liaye lived there for upwards of twenty-five years,, and then removed to ' Newark,. N. J.,-where he lived for a period of twenty years,, owning the house in which he lived. About twelve or fifteen years before his death lie broke up his .home at, Newark,- spent the sum men at Newton, in.the State of New Jersey, and about the first ’of November carne to New York, lived in’a boarding house during the winter, leaving New York again for New Jersey about the first inf March. Subsequently lie'generally, spent the winters in New York., In the fall of 1903 he came to New York, boarding at Miller’s Hotbl, stayed' there for á few months -and left about, -the first of Maxell, 1904, and took up his residence in Newton, N. J. He retained' ijio room at the hotel, and subsequently, had no New York residence arid had no property of any kind in this State. When he left he stated' that he did not intend to. return to New York, but did intend to remain permanently at Newton. There is no evidence that the téstator had a residence in the State of New York at the time of lys death; and the case of -the Comptroller depends entirely upon the 'fact that the testator liad voted iti New York in 1900 that he had paid a personal tax for several years prior to his death, as a resident
I think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the proceeding dismissed.
McLaughlin, Clarke and Scott, JJ., concurred; Houghton, J., dissented.
Dissenting Opinion
I do not .think this, proceeding should be dismissed. It was not so clearly established that the testator was a resident of the State of -Mew Jersey as to authorize such a disposition of the matter. I think, however, there should be a rehearing. It was error to exclude the proposed testimony of the witness Polhemus as to personal communications had by her with the testator. She was a daughter of testator and is the legatee Ida F. White mentioned in his will, Statements made by the testator to her as to changing his residence and what he intended to do in that respect were excluded-on the ground that she was incompetent to testify to them under section 829 of the Code of Civil Procedure. A legatee or distributee is not prohibited by this section from testifying to personal transactions and communications had with his testator-or intestate in a pro
The above authorities on this proposition do not seem to- have been overruled or questioned, and they appear to be founded tipdn just principles. The tax is not against- the estate and it has no-interest in its amount: It is levied against the amount of the legacy- or distributive share passing to the legatee or distributee. The witness was interested to establish the fact that the testator was a resi-. dent of the State of Hew Jersey and was not a resident of the State v ! of New York. Her interest, however, did not - disqualify her from testifying to such material facts as she might know concerning sutih residence. ■ Her interest might affect the weight of. her testimonly but did not render her incompetent, for she was not testifying 'against the estate,-or the executors under the will. j
I think the error was sufficiently material to require a . rehearing. The order should be reversed and the matter remitted for 'a rehearing before the surrogate.
Order reversed, with ten. dollars costs and disbursements and proceeding dismissed. Order filed.