135 Misc. 736 | N.Y. Sur. Ct. | 1929
This application is made for an order adjudicating that the decedent at the time of her death was a non-resident
The question of residence, or domicile, of the decedent in each particular case must of necessity be determined from the evidence presented in the case. To these facts are applied the general principles applicable to domicile as consistently laid down by our courts in the leading cases of the State such as Dupuy v. Wurtz (53 N. Y. 556); Matter of Newcomb (192 id. 238); Matter of Lydig (191 App. Div. 117); deMeli v. deMeli (120 N. Y. 485), and Matter of Mesa y Hernandez (172 App. Div. 467; affd., 219 N. Y. 566). It is unnecessary at this time to set forth in detail these principles, the more important of which are (1) that every person must have a legal domicile somewhere; (2) that a person can have but one domicile at one time for one purpose; (3) that the existing domicile, whether of origin or of choice, continues until a new one is acquired; (4) that to create a change of domicile both the intention and the residence, animus et factum, must be present.
The claims of both the New York State Tax Commission and the State of Connecticut are vigorously urged and their determination has not been made without difficulty because of the sharply conflicting inferences which may be drawn from the proofs.
The decedent was bom in New York city in 1849. For many years she and her sister, Ellen Stone, resided in a house owned by them on East Fiftieth street, New York city. This house was sold in 1926 and thereafter, during the portion of each year spent in New York city, the decedent z’esided with her sister in an apartment leased by the latter at 910 Park avenue. In 1898 the decedent and her sister, Ellen Stone, purchased real estate in Ridgefield, Conn., and izz the next year erected a house there in which they spent a portion of each year thereafter until the decedent's death. The house was their couiztry home. It was the custom of the decedent to spend the late spring, summer and fall of each year
In considering the evidence submitted to me I have entirely excluded the article relative to the decedent’s death, which appeared in a Ridgefield paper, as I deem it to be mere hearsay.
The New York State Tax Commission relies almost exclusively upon the presumption of the continuance of the domicile of origin. It does stress the fact that, in certain documents executed in the years 1922 and 1926, the decedent is described as a resident of New York city. These documents, however, were all executed by one E. Morgan Grinnell, the decedent’s attorney in fact, by virtue of power of attorney given him in 1901. Statements by the decedent’s attorney in fact that the decedent was a resident of New York afford little proof as to her domiciliary intent. It does not seem unusual that the attorney in fact, in preparing documents for the decedent who had two addresses, should use her New York address especially since the transactions affected New York property and the documents were executed in New York. (Matter of Harkness, 183 App. Div. 396.)
The facts here are similar to those in Matter of Lydig (191 App. Div. 117), but differ from the latter case in some particulars which are worthy of note. In the Lydig case the decedent, for each of the four years immediately preceding his death, filed his income tax returns in New York and verified them individually. On each of these returns the decedent’s residence was given as New York city. In the instant case it is admitted that the decedent’s income tax returns were filed in New York. There is, however, nothing in the record to show that the returns were verified by the decedent individually. On the contrary, it is only fair to assume that they were not so verified by her as each of the other affidavits and documents offered in evidence by the New York State Tax Commission was sworn to by the decedent’s attorney in fact. Likewise, in the Lydig case there is testimony that David Lydig paid taxes in Lenox, Mass., through an arrangement with the tax assessors for the reason of economy. In the case here there is nothing to show that Annie Stone paid taxes as a resident of Ridgefield, Conn., for the reason that she might pay less there than in New York nor is there any indication that such was her intention. A brother-in-law of David Lydig also testified that the latter, during his entire lifetime, had made his home in the city of New York. In the case before me there is no testimony of declarations by Annie Stone to the effect that she did not change her domicile or that she continued to maintain it in New York. Moreover, there is present in this proceeding proof of positive
From all of the foregoing facts I have reached the conclusion that the decedent had changed her domicile from New York city to Ridgefield, Conn. • Submit order, on notice, adjudicating that the decedent was, at the time of her death, a resident of the State of Connecticut and proceed accordingly.