13 Mills Surr. 347 | N.Y. Sur. Ct. | 1914
This is an application by the State Comptroller to have the surrogate determine the controverted question of decedent’s domicile at the time of his death. The determination of this question is material and necessary in the transfer tax proceeding now pending, because if the decedent did not have his domicile in this State at the time of his death his intangible personal property is not subject to a tax under the provisions of our Transfer Tax Law.
From such evidence it appears that Henry Rutherford died at the Hotel Astor, in the city of Hew York, on the 25th of February,' 1913. The record does not disclose his domicile of origin. He had no children. The papers before me do not give the date of his wife’s death, but certain statements therein contained would seem to indicate that she died before he began to live at hotels in the city of Hew York. There is no evidence as to his residence or domicile during his married life. Charles K. Phipard, a member of the firm of bankers and brokers with which the decedent transacted business, and who is also an executor under decedent’s will, testified that he had known the decedent for about forty years; that he first became acquainted with him in Hew York city, and that prior to the month of Hovember, 1911, he always claimed Hew York as his residence. Dr. Steele, a physician, testified that he knew the decedent socially and had attended him professionally for about ten years prior to his death, and that during that time the decedent had lived in hotels in Hew York city. Another physician testified that he had treated him at intervals for about five years prior to his death, and that during all that time he lived at hotels in this city. There is no evidence that he had a home or a residence in any other State during that time. He engaged rooms at the Plaza Hotel, Hew York city, on June 14, 1910. and remained there until September 1, 1911. He went to the Astor Hotel in September, 1911, and remained there until he went to the Waldorf-Astoria on Hovember 21, 1911. He remained at the Waldorf until March 20, 1912, when he returned to the Astor, and remained at the latter hotel until the date of his death. When registering at the hotel he wrote in the column
Decedent was executor under the will of his brother, John Rutherford, and in his oath of office, verified April 4, 1911, he stated, “lama resident of the Hotel Plaza, in the Borough, of Manhattan, City and State of Hew York.” In the petition for the probate of the will of his brother, verified by the decedent on the 30thi of March, 1911, he stated that he resided at the Hotel Plaza, in the borough of Manhattan, city of Hew York. He was executor under the will of his sister, Janet Rutherford Marshall, and in executing the oath of executor he stated on the 6th of Hovember, 1911, that he was “ a resident of the Hotel Waldorf, in the Borough of Manhattan, City and1 State of Hew York.” In the petition for the probate of her will, verified 6th of Hovember, 1911, he stated that he resided in the borough of Manhattan, city and State of Hew York. In his will, which was executed on the 23d day of Hovember, 1911, he described himself as “ at present residing in the City, County and State of Hew York.” He was assessed for personal taxes in Hew York city for the year 1911, and he paid the tax in 1912. He did not vote in Hew York city; in fact he never voted anywhere during his life. He was not engaged in any business, nor did he practice any profession.
These facts would seem to indicate that up to and including the year 1911 decedent had his domicile in this State. He had no home elsewhere than in this city. The fact that he lived at hotels here instead of at a private dwelling-house or an apart
The executors do not contend that he was domiciled in any other State than Hew York prior to 1912, but they do contend that in the latter year he acquired a new domicile of choice in Vermont. The facts apparent bearing on this contention are as follows: Decedent’s brother, John Rutherford, owned a house at Grand Isle, Vt., which he used' as a summer residence. Henry Rutherford usually spent a week or two every summer at the home of his- brother in Grand Isle. John Rutherford died
From all these statements- it is apparent that some time during the summer of 1912 the decedent decided- that he would make Grand Isle his home; but from the time that he manifested1 his intention until the date of his death he never actually resided there. His- quondam residence remained to all intents. In Matter of Newcomb (192 N. Y. 238), the court said: “ Resi
Decreed accordingly.