181 Misc. 238 | N.Y. Sur. Ct. | 1943
Although this proceeding is one to fix the estate tax, pursuant to article 1Ó-C of the Tax Law, the sole question litigated and now presented for determination is whether at the time of his death the decedent was domiciled in this State or in the State of Florida. The procedure followed is similar to that adopted and approved in Matter of Trowbridge (266 N. Y. 283), the respondent State of Florida having been granted permission to intervene by an order of this court based upon the consent of the State Tax Commission of New York and Florida having availed itself of the license so tendered. Due to certain conflicts of interest between infant remaindermen, the court was obliged to and did appoint two special guardians, one of whom asserted the domicile of the decedent to have been in Florida and the other' joined with the State of New York by claiming domicile in the latter State. It is estimated that the amount of tax under the laws of either State will exceed the sum of $200,000. The matter was sharply contested and the facts ably presented by respective counsel. Since the question of domicile is one primarily of fact (Dupuy v. Wurtz, 53 N. Y. 556), it is necessary to consider and analyze the vast array of evidence presented.
The decedent was born on April 4,1873. While still a young man he established himself in business in Chicago in or about the year 1900. Thereafter and prior to 1925 he transferred his business interests to New York City where he maintained
As is demonstrated by the size of his estate, the decedent was most successful in his business ventures and held directorships and offices in several affiliated companies, the main or so-called parent company having its principal office at 60 East 42nd Street, New York City. That the decedent’s office was that of the parent company is not disputed. Several other relevant facts are likewise undisputed. For many years prior thereto and at the time of his death, practically all of decedent’s stocks and bonds, valued at $2,848,190.69 in the Federal tax return, were kept in NeAV York City, it appearing that only a bond and mortgage in the sum of $6,400 Avere located in Florida at the time of his death; during the same period he had accounts with brokerage houses in New York City and maintained his principal bank accounts with New York City banks. He was a member of several social and recreational clubs in the city of New York and in Westchester County. It was also shoAvn that during the disputed period hereinafter alluded to the decedent’s charitable contributions were made exclusively to organizations having their offices or spheres of activity in or near the city of New York and Westchester County.
That the decedent ostensibly planned to effect a change of domicile to the State of Florida and was most vehement in his expressions of such intent is clear. Upon arrival in Miami in January, 1938, he consulted a local attorney and tax authorities as to the necessary legal steps to be taken to become domiciled in the State of Florida. Under date of May 4, 1938, decedent acquired title to a furnished house known as No. 5300 La G-orce Drive, Miami Beach, Florida, but concededly never lived in it. This property was thereafter deeded back to the grantor by an instrument dated April 27, 1939, there being some evidence tending to indicate, however, that such return deed was prepared at the same time as delivery of the
It further appears, according to the records of Dade County, I hat personal property located at 5300 La Coree Drive, Miami Beach, valued at $80, was assessed against decedent for the year 1938 and a tax imposed thereon in the sum of $4.49; a like tax in the sum of $15.85 for personal property located at the same address valued at $250 was imposed thereon for the year 1939. It was admitted that no tax was assessed by the State of Florida against the yacht “ Onwego ” during the disputed period. It also appears that the decedent made and filed with the Dade County tax authorities returns for intangible personal property covering the years 1939 and 1940 in which he listed intangibles valued at $3,494,486.00 for the year 1939 and $3,384,398.23 for the year 1940. The latter return is dated May 21, 1940, four days prior to his death, and although it was signed by decedent, “ 1010 West Avenue, Miami Beach, Florida ” was typed in as his address. It is to be here noted that the aforementioned lease of 1010 West Avenue expired by its terms on April 30, 1940, and there is no proof of its renewal. Furthermore, as is more fully hereinafter set forth, on this date decedent was actually residing at the Weaver Street premises, and his yacht was in New York.
The decedent filed a resident New York State income tax return for the period January 1 to January 11, 1938, and a
The following are some of the more salient facts which it is contended negative or explain the evidence offered to establish that decedent changed his domicile to Florida. During the entire disputed period from January 7,1938, to the time of his death, the decedent continued to maintain the Weaver Street property in substantially the same manner as prior thereto. This was sought to be explainéd by evidence designed to estab
The decedent became ill in August, 1939, and from then to the time of his death on May 25, 1940, was under his doctors’ care almost constantly. In November, 1939, he went to Miami Beach by train accompanied by his family physician, and during his stay lived on the yacht, which was again moored at the Flamingo Hotel dock, as he did during the two previous winter seasons. On April 30,1940, the decedent, again accompanied by his family physician, left Miami Beach by train, arriving in New York on May 1, 1940. Following decedent’s departure the yacht proceeded north and at the time of death was in drydock at City Island, New York, for reconditioning. Pursuant to arrangements made by telephone with his son, he was met at the train by his wife, one of his daughters and his son and was taken immediately to the Weaver Street residence where all had dinner. The decedent was confined therein by his continuing illness until his admission to the Lawrence Hospital, Bronxville, New York, on May 23, 1940, where he died on May 25, 1940, at the age of sixty-seven. It was conceded that the funeral services were conducted from the Weaver Street residence and the remains interred in Kensieo Cemetery in this county.
The admission cards of the Bronxville Hospital pertaining to both the last illness of decedent and a prior admission for observation in 1939 were offered solely to establish decedent’s residence at the respective times as the Weaver Street address and, upon-objection thereto being made, decision was reserved. Although the hospital records are clearly admissible for some purposes (Civ. Prac. Act, § 374-a), there is here no proof as to the source of the information with respect to the statements of residence appearing therein. Under these circumstances such records are inadmissible to establish the residence of decedent. (Johnson v. Lutz, 253 N. Y. 124; Matter of Fischer, 151 Misc. 74, affd. 243 App. Div. 685.) The objection is accordingly sustained. A similar ruling is made with respect to the death certificate which was admitted into evidence subject to connection, and such exhibit will be deemed stricken from the record.
Since concededly the decedent was domiciled in New York prior to January 7, 1938, such domicile continues until superseded by a new one. (Dupuy v. Wurtz, 53 N. Y. 556, supra; Matter of Newcomb, 192 N. Y. 238; Matter of Johnson, 259 App. Div. 290, affd. 284 N. Y. 733; Restatement, Conflict of Laws, § 23.) The burden of proving this change is upon the party who
In Matter of Johnson (259 App. Div. 290, 291, supra) Mr. Justice Close, now Presiding Justice of the Appellate Division, stated the test to be applied to proof of domicile as follows: “ In order to effect a change there must have been proof that the decedent had freely chosen another domicile and that this choice was followed by physical presence at a dwelling place and the intention to make it a home. There must be concurrence of the fact and the intent, the factum and the animus. ’ ’
A related principle must also be kept in mind that “ the acquisition of a new domicile involves an intent to abandon the old dwelling place as a home.” (Matter of Benjamin, supra, p. 533.) Applying these principles to the facts of this case leads to only one conclusion, that the decedent never abandoned the Weaver Street residence as his permanent home and consequently could not acquire a new one in Florida. In the first place, his declarations as to legal residence and domicile, made subsequent to January 7, 1938, which Florida asserts to be the beginning of the disputed period, were not uniformly consistent with an abandonment of his New York residence as his permanent home and the acquisition of a new one. As late as the year 1939 he referred to the Weaver Street address as his legal residence in certain papers hereinabove mentioned.
A review of the pertinent authorities shows that declarations of residence in wills and other.formal documents, inconsistent with the conduct of the person, have been frequently disregarded. (Texas v. Florida, 306 U. S. 398, supra; Matter of Hernandez, 172 App. Div. 467, affd. 219 N. Y. 566; Matter of Wendel, 144 Misc. 467; Matter of Lydig, 191 App. Div. 117.) In Beale on Conflict of Laws (vol. 1, p. 253) the author comments upon the effect of declarations as follows: “ Since actions speak louder than words the conduct of a person is, the most important evidence of his intention to acquire a domicil in a place. In any case of discrepancy between his declarations and his acts, his declared intention yields to the conclusion drawn from his acts.” In Matter of Harkness (183 App. Div. 396, 407) the court commented upon declarations inconsistent with conduct as follows: “ These conflicting declarations afford another illustration of the weakness of declarations as against what may be called the acts of the decedent, going to make up the manner and conduct of his life. Following the statement of the rule in the leading case of Dupuy v. Wurts (supra), this court has repeatedly disregarded declarations when they conflict with acts, which are more persuasive in showing intent.” Similarly, the payments of personal property taxes in Florida may be some evidence of intent, but they are not of themselves controlling. (Matter of Lydig, supra.) That his act of registering as a voter and in voting in Florida did not necessarily establish his domicile there is also well settled. (Matter of Lydig, supra; Matter of White, 116 App. Div. 183.) There are additional acts of decedent and acts coupled with declarations, either oral or in writing, all of which have been considered by the court in reaching its conclusion. Although all of these facts, taken together, are some evidence of a plan or desire to effect a change of domicile, in the absence of conduct consistent therewith, however, they are insufficient to establish a new domicile in law or fact. (Matter of Newcomb, supra; Texas v. Florida, supra.)
The failure of decedent to acquire a permanent place of abode in Florida, his contradictory declarations of legal residence employed in various documents, his colorable residence at both premises given as his Florida addresses, his retention of the
The facts clearly demonstrate that the Weaver Street premises continued to be the decedent’s home, his sole permanent place of abode to the time of his death. The State of Florida having failed in sustaining the burden of proof imposed upon it by law, I find that at the date of death the decedent was resident of and domiciled in the State of New York and that his legal residence was at 60 Weaver Street, Town of Mamaroneck, Westchester County, New York.
Settle order accordingly.