144 Misc. 256 | N.Y. Sur. Ct. | 1932
In this contested probate proceeding a preliminary question arises as to the domicile of the decedent. A will dated October 17, 1930, executed in New York county, has been offered for probate by Olga Wolf, a daughter-in-law of the decedent. A prior will dated January 9,1929, was admitted to probate by the register of wills in Venango comity, Penn., on the 2d day of January, 1931.
The proponent of the will offered for probate in this court alleges that at the time of her death the decedent was a resident of the county of New York. The contestants, a daughter of the decedent and certain grandchildren, claim that the decedent was a resident of Oil City, Penn. Applying to the evidence adduced at the trial
It appears that in 1913 the decedent rented her house in Oil City and went to Washington, D. C., to live with one of her daughters, Minnie Herzog. In 1915 she returned to Oil City where she leased an apartment for a period of two years and nine months. In the latter part of 1916, or the early part of 1917, she leased an apartment at No. 4508 Fifteenth avenue, borough of Brooklyn, New York city. The landord of these premises testified that she lived there until about 1921. His testimony, however, is contradicted by declarations contained in.letters written by the decedent from Atlantic City to her financial representative, Mr. Charles Lambert, in Oil City, Penn., on July 14, 1919, September 19, 1919, and October 26, 1919. At that time it is apparent that she was in Atlantic City. In these letters she referred to the fact that she intended to or had broken up her home in Borough Park, Brooklyn, and had stored her furniture. In the letter of September 19, 1919, she inquired, “ How is everything in my old home town? ” In the letter of October 26, 1919, she said, “ I broke up my home and stored my furniture. My landlord raised me from $70 to $100 per month so am living in Atlantic City. I expect to make this place my home.” In 1921 she returned to Oil City, Penn., to attend to her financial affairs. Between 1919 and 1926 she spent most of her time between Atlantic City, N. J., Washington, D. C., Oil City, Penn., and New York city. In 1926 the decedent was again in New York, residing with her daughter-in-law, Olga Wolf, at the Hotel Hamilton, 143 West Seventy-third street, where she remained for about three months. While in New York she opened an account on April 26, 1926, with the National City Bank, which she closed out on July 16, 1926, when she went to Atlantic
From the testimony of the physician who attended her, it appears that from the date of her arrival here, on September 18, 1930, to the date of her death, she could not possibly travel because of her physical impairment. It is significant also as bearing upon her intention that almost all of the decedent’s personal property, of the value of approximately $72,000, consisting mostly of securities, was continuously located to the date of her death in Oil City, Penn. Her property in New York at the time of her death was relatively small in value. It consisted of personal effects, including wearing apparel, a trunk, a small rug and a watch. The only real estate which she owned was located in Oil City. Her securities were kept in a safe deposit box in the Oil City National Bank. All her checks, with the exception of checks on her temporary account with the National City Bank in New York in T926, were drawn upon the Oil City National Bank. Her Federal income tax returns for the years 1927, 1928 and 1929 were filed with the Collector of Internal Revenue in the district in which Oil City,
The testimony of the two witnesses produced by the proponent as to declarations made by the decedent that New York was her home was vague and indefinite. Nor were they accompanied, as shown above, by the necessary element of factum, or conduct of the decedent effectuating the transfer of her domicile from Oil City, Penn., to New York. To create a change of an existing domicile, whether of origin or of choice, both the intention and residence, animus et factum, must be present. The written declarations of the decedent and her actions and conduct negative the meagre testimony of statements of intention made by the decedent to the witnesses. The burden of proving the change of domicile was upon the proponent. (Matter of Newcomb, 192 N. Y. 238.) This burden she has failed to meet. On the contrary, the evidence clearly points to a continuance of domicile in Oil City, Penn.
Having found that the record amply sustains the holding that the decedent at the time of her death was not a resident of New York county, but of Oil City, Penn., the only question remaining is whether the court should assume jurisdiction here of the estate of the decedent because of the personal property found in her room at the Hotel Hamilton. In view of the negligible amount of such personal property left by the decedent in this county, I hold, as a matter of discretion and for reasons of comity, that the court should not entertain jurisdiction of an original probate proceeding here, but should direct the transmission of the will offered for probate to the forum of the decedent’s domicile in Pennsylvania where jurisdiction has been lawfully assumed. (Matter of Leonori, 130 Misc. 449.) If ancillary proceedings be necessary here to administer the New York assets, a proper application may be initiated for that purpose.
The proceeding is, therefore, dismissed. Submit decree on notice accordingly.