In the Matter of the ESTATE of Alice D. McKINLEY, Deceased, Appeal of Elizabeth D. COYLE, Beneficiary, and Reed B. Coyle, III, Residuary Legatee. Appeal of COMMONWEALTH of Pennsylvania, Appellants.
Supreme Court of Pennsylvania.
March 18, 1975.
June 6, 1975.
337 A.2d 851
Argued Oct. 11, 1974.
Israel Packel, Atty. Gen., Geoffrey Paul Wozney, Asst. Atty. Gen., Pa. Dept. of Justice, Pittsburgh, for appellant at No. 80.
Robert E. McKee, Jr., Feldstein, Bloom & Grinberg, Pittsburgh, for appellee.
Before JONES, C. J., and EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
JONES, Chief Justice.
This appeal presents one issue: whether the domicile of the deceased, Alice D. McKinley, was in Pennsylvania so as to vest the Register of Wills of Allegheny County with jurisdiction to probate her will.
After hearing testimony, the Register of Wills determined that the decedent hаd changed her domicile from Florida to Allegheny County at the time of her death. The Orphans’ Court reversed, holding that the decedent had remained domiciled in St. Petersburg, Florida, until
It is an established principle that domicile, having been shown to exist, is presumed to continue until another domicile is affirmatively proven. Obici Estate, 373 Pa. 567, 571, 97 A.2d 49, 51 (1953); Pusey‘s Estate, 321 Pa. 248, 265, 184 A. 844, 853 (1936); Barclay‘s Estate, 259 Pa. 401, 404-405, 103 A. 274, (1918). It is the duty of the proponents of the probate of this will, by clear and satisfactory proоf, to overcome the presumption that the old domicile remained. See Loudenslager Will, 430 Pa. 33, 38-39, 240 A.2d 477, 480 (1968). See also Obici Estate, supra, 373 Pa. at 571-572, 97 A.2d at 51.
The burden of demonstrating that decedent reestablished a Pennsylvania domicile is on proponents of the probate of this will. Loudenslager Will, 430 Pa. at 38, 240 A.2d at 480; Dorrance‘s Estate, 309 Pa. 151, 172, 163 A. 303 at 310 (1932).
The domicile of a person is the place where he has voluntarily fixed his habitation with а present intention to make it either his permanent home or his home for the indefinite future. To effect a change of domicile there must be a сoncurrence of two factors: physical presence in the place where the new domicile is alleged to have been acquired, and the intention to make it one‘s home without any fixed or certain purpose to return to the former place of abode. Loudenslager Will, supra; Publicker Estate, 385 Pa. 403, 123 A.2d 655 (1956); Dorrance‘s Estate, supra.
Our examination оf the record indicates a conflict on the facts.1
On the other hand, we note that the reсord reveals that Mrs. McKinley never relinquished the return trip portion of her round-trip airline ticket until her sister, Mrs. Coyle, attempted to obtain a rebate on the ticket in mid-March because it was thought that the ticket was going to expire. In addition, prior to entering the hospital, on February 28, 1972, Mrs. McKinley wrote to hеr landlady in Florida, “I am not sure when I‘ll be going home but think it won‘t be too long. I am not feeling any stronger and don‘t know what the future holds for me.” Finally, on March 7, 1972, decedent wrote to her St. Petersburg bank identifying herself as a St. Petersburg resident. The evidence reveals that decedent did not move her belongings from the St. Petersburg residence, terminate the month to month lease which she had there, or transfer her checking and savings accounts to the Pennsylvania bank.
The decedent‘s declarations of intention are in direct conflict: she expressed to those around her in Pittsburgh the desire to take up residence here, yet contemporaneously wrote twice to St. Petersburg that she was still a resident there. It is true that her actual con-
The Register of Wills properly placed the burden of proof upon the proponent. Thе Register did not, however, apply the requisite standard of proof. Stating that the evidence “in a hard case” was conflicting, the Register said that she was inclined to believe the two disinterested witnesses, Mrs. Conner and Miss Kelly. The testimony, in full, of the two women upon whose testimony the Register of Wills heavily relied, was that Mrs. McKinley declared, in mid-February, that she was not going back to Florida and that she was looking into the Baptist Home. The inference that decedent was abandoning her old domicile was, however, rebutted by her subsequent references to St. Petersburg as her home and herself as a St. Petersburg resident. Unlike the hearing court, we fail to find in decedent‘s conduct and in her declarations, including those to Mrs. Conner and Miss Kelly, the neces-
The testimony of the witnesses produced by proponents of this will does not reveal the necessary animus to establish a change of domicile. The record shows that decedent was very ill and uncertain as to her future. Decedent was equivocal in regard to any plans to abandon the Florida home and to relocate in Pennsylvania. Thus, in our view, the proponents of this will have failed tо show by clear and convincing proof that decedent changed her domicile from Florida to Pennsylvania.
Decree affirmed. Costs on appellants.
MANDERINO, J., filed a dissenting opinion.
MANDERINO, Justice (dissenting).
I dissent because the evidence еstablishes that decedent was domiciled in Pennsylvania.