223 A.D. 491 | N.Y. App. Div. | 1928
The finding of the surrogate that at the time of the death of William D. Packard on November 11, 1923, he was domiciled in the State of New York is contrary to and against the weight of the evidence. We find that he was domiciled in the State of Ohio. That was his original domicile, and we find nothing presented which convinces us that he made any change. (Dupuy v. Wurtz, 53 N. Y. 556; Matter of Newcomb, 192 id. 238; Matter of James, 221 id. 242, 256; “ Restatement No. 1 of Conflict of Laws,” published by American Law Institute, March 1, 1925.)
The exemption claimed for the trusts created for the benefit of the Boy Scout organization of Trumbull county, O., and for the construction of a fireproof music hall at Warren, O., should not have been disallowed. Proof, if taken, may show that either the Boy Scout organization or the Salvation Army (the trust as to which was exempted) was a “ religious, educational, * * * charitable, * * * [or]benevolent * * * corporation” (Tax Law, § 221, as amd. by Laws of 1920, chap. 765, first sentence), or that both of them were such. The trust created for the building of a fireproof music hall in Warren, 0., was substantially a gift to the city for an educational purpose. And the city of Warren, 0., was an “ educational * * * corporation ” under section 221 of
Concededly the taxing order incorrectly included household goods and a pipe organ situate in the State of Ohio. It seems also that this order includes personal property having no legal situs for taxation purposes in the State of New York, or that deductions have not been made for taxes paid to the State of domicile (Ohio). (Tax Law, § 220, subds. 1, 2, as amd. by Laws of 1922, chap. 430; Frick v. Pennsylvania, 268 U. S. 473; Rhode Island Hospital Trust Co. v. Doughton, 270 id. 69.) The taking of proof as to this matter, in connection with the others mentioned, may bring about a result in accordance with the real facts.
The decree revoking the ancillary letters testamentary should be reversed on the facts and the motion denied, with costs to appellant. The taxing order of January 24, 1928, and the order of January 31, 1928, dismissing the appeal from the taxing order should be reversed and the taxation matter remitted to the surrogate of Chautauqua county, to the end that after taking proof or proceeding otherwise as he may be advised, the surrogate may enter a taxing order in accordance with the law and facts and with this opinion.
All concur. Present — Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ.
Decree revoking ancillary letters reversed, with costs. Order dismissing appeal to surrogate and the taxing order reversed and taxation matter remitted to the surrogate to proceed in accordance with the opinion.