18 Mills Surr. 527 | N.Y. Sur. Ct. | 1917
Upon the petition of Edward H. R. Green, to whom letters testamentary upon the estate of the decedent were granted by the Probate Court of the district of Westminster, state of Vermont, an appraiser was appointed by the surrogate to appraise the property of the decedent in accordance with the provisions of the Tax Law of this state. The executor alleged in his petition that the decedent v?as a resident of Bellows Falls, in the state of Vermont. This allegation was controverted by the state comptroller of the state of Yew York. Witnesses were then produced before the appraiser and examined on behalf of the estate. An issue of residence having been thus raised, the usual stipulation was entered into between the executor and the state comptroller, to the effect that the testimony taken before the appraiser should be used by the surrogate in determining the question of decedent’s residence, in the same manner and to the same effect as if such testimony were taken before him. The issue is accordingly now before me for adjudication.
Evidence given before the appraiser on appraisals for tax purposes is generally informal in character, and the common-law rules of evidence, appropriate on trials by jury, are not strictly applied, and, indeed, in legal theory, have little application to such proceedings or inquisitions conducted by appraisers. But when a controverted issue of domicil or residence arises in the first instance, and the evidence is taken before the appraiser only for convenience and then certified to the sumo-gate for his 'decision thereon, the ordinary rules of evidence as applied in equity and in the courts of the surrogates are applicable, and the surrogate must consider objections and exceptions interposed by counsel. In this matter I find no substantial error, or no error which makes it imperative that the proceeding should be remitted to the appraiser for further action in conformity with the evidential rules of judicial procedure. I 'shall notice, but the one objection made in behalf of the state to the reception of the affidavit of the executor, verified ^November 1, 1916. This objection is followed by a motion to
On the hearing before the appraiser on the issue of residence witnesses were called and sworn and documents were introduced. The outline of the testimonial evidence may for convenience be summed up as follows: Hetty H. R. Green, the “ decedent,” as she is improperly termed under the taxing act, was born on November 22, 1834, at New Bedford, Mass., where her father then resided. The record before me does not disclose where the decedent resided from the date of her birth until immediately before the date of her marriage. It appears, however, that her father had acquired a house in this city of New York in the early part of 1867 and that he was living here at that time, and the decedent then lived with him. On July 11, 1867, she was married to Mr. Edward H. Green. Mr. Green was born at Bellows Falls, Yt.; he was in adult life engaged in business in Manila for some years prior to his marriage and resided there during his absence in the East, although he retained his home at Bellows Falls, Yt. YThere he resided at the moment of marriage I shall consider later. Shortly after his marriage to the decedent they went to Europe and remained there for about eight years. Their children were born abroad. While in Europe Mr. Green sold his dwelling house at Bellows Falls. When Mr. Green and the decedent returned from
The record discloses that the question certified to me for decision concerns the last residence of Hetty H. R. Green, not her last domicil (see stipulation in the record). In Matter of
This matter involves, then, not only a “ domicil,” but the “ principle of domicil,” the application of which is of acknowledged difficulty where the subject of the investigation has two or more residences in different states or jurisdictions. It has been said in England that the “ principle of domicil ” better expresses what common lawyers mean by “ domicil.” The cause has been ably presented by counsel for both the state and the executor. They have not hesitated to refer to the primary sources of domicil, the Civil Lay, jus gentium, and modern private international law, in addition to their citations of decisions of our own state.
In the long course of the modern development of the principle of domicil it was early admitted that a person might have as many domiciles as he had residences. But modem convenience or necessity has altered all this, and it is now held, in both English and American law, that a person can have but one domicil at a time for most legal purposes. (Forbes v. Forbes, Kay, 341; Dupuv v. Wurtz, 53 H. Y. 556.) He may be subject to various jurisdictions without inconvenience, but not to more than one law, and that law is with us to be determined by the principle of domicil. It has been said by publicists that to some extent the principle of domicil in the law of
This matter now before me indicates the importance of some definite law regulating the status of a citizen of a particular state of the Union sojourning or residing for some period out of that state, and in another state of the Federal Union. It also indicates, in some degree, the importance of determining the powers and the authority of the federal government to adjudicate the rights of citizens of particular states of the Union residing or sojourning within the borders of a state not their own. If there is no such federal law, then some day there will have to be a revision of the Constitution so as to enable the federal courts to determine the conflicting claims of tax collectors of different states against federal citizens who are also citizens of particular states.
In such conflicts there is already, I conceive, a primary principle which is rarely considered by state courts in cases of this character. Under the Fourteenth Amendment to the Federal Constitution every citizen now has a national citizenship, as contradistinguished from his or her citizenship of a particular state of the Union. (Slaughter House Cases, 16 Wall. 36, 73; United States v. Gruikshank, 92 IT. S. 542.) The federal law
I will not attempt to say what the federal law is on such
Until all such- questions as those outlined are set at rest by some supreme law of this nation, wo are left in that condition of uncertainty which prevailed everywhere in Europe in the sixteenth and seventeenth centuries, when it was held that the law of the territory where one’s personalty was found to he prevailed. The maxim then was: “ Bona tarn mobilia quam immohilia regulan tur juxta leges regui et loci in quo bona ea
In the law of nations the nationality of a person whose status or right is in controversy is now generally the controlling-factor, and that once determined, his public right and obligations are reasonably clear. But in a great federal state like the United States, or the modern Empire of Great Britain, the principle of nationality does not respond to actual requirements and therefore we in this country are driven to the principle of domicil, which is consequently much emphasized in the local laws of both England and America. Indeed, in respect of the personal property of a citizen of the United States, domicil has become extremely influential, if not always controlling. West-lake distinctly states that in England and the United States “ domicil is the only possible criterion of a person being an Englishman or a Scotchman, a Marylander of a Louisianian.” (Internat. Law [Eng. ed.], pt. 1, p. 211.) While this is true, there are some signs of reaction in this country. The tendency of modern state legislation in America, at least for the present, is to reassert the old supremacy of territorial law in respect of the personal property within the territory belonging to those not domiciled in the legislating state. In other words, the present tendency is for the state authorities to deny the complete force of the long established maxim, “ Mobilia sequuntur personam.” If there is any federal power to correct this re-' action, and I for one venture to believe that there is, it should be promptly invoked in the interest of the higher citizenship of the United States.
In my judgment the logical consequence of the decisions of the United States courts on the Fourteenth Amendment is that there is now a supreme federal law which ought to determine all such questions as those just outlined or intended to be suggested. (Matter of Morgan, 95 Mise. Rep. 453.) If this theory is sound, every case involving a conflict of state laws relative to the right of taxation on a succession from a federal citizen could be drawn into the federal courts in some way or at some time. If, on the other hand, this theory is erroneous, then I submit with all due deference that certain resonant
Fortunately, then, I am relieved from the necessity of considering high federal questions in this matter, for under the construction of the Appellate Division the only question now certified to me for decision is the last domicil of Mrs. H. H. R. Green at the moment of her death, and this is largely, though not altogether, a question of fact to be determined on the evidence. Unfortunately for its easier solution, domicil is not a pure question of fact. It is, more accurately speaking, a mixed -question of law and fact, i. e., the facts to be found may or may not establish domicil in law'. The learned Phillimore correctly states, without reservation, that every question of domicil is one of law and fact. This being so, the question of Mrs. Green’s last domicil becomes one of some difficulty under the authorities. The learned Appellate Division of this department has, however, relieved me from the necessity of considering whether commorancy or domicil is the real test of liability under the “ Taxable Transfer Acts ” ef this state, for, in under the “ Taxable Transfer Acts ” of this sttate, for, in Matter of Martin, 113 App. Div. 1, they hold, as I said at the outset, that it is domicil and not residence which controls. I
It would be useless to refer to all the discordant definitions of domicil contained in the writings of. publicists and in adjudicated cases. All such existing definitions fail at times to respond to particular requirements. That domicil in the common law denotes principles different from both Eoman and early English law, Westlake states (p. 259, et seq.). Indeed, Lord Westbury ¡has said that domicil now “ is an idea of law.” (Bell v. Kennedy, L. E. [1 Sc. App.] 320.) Certainly “domicil” in modern law is more than a residence, because it may exist without residence. (Ortolan, 599.) “Domicil” now is, I venture to think, the place which in law relatively determines
There is at common law no exact definition of domicil which responds to all purposes. (Dicey Confl. Laws, 89; Wharton Confl. Laws, §§ 21, 22; Wheat. Internat. Law, 394; Forbes v. Forbes, Kav, 352.) Mr. Dicey, in the last edition of his works, has much simplified Ms former precise and complex definition of domicil which I quote in Matter of Robitaille, 78 Misc. 112; Of. Matter of Morton, 96 id. 154, 155.) In my opinion, domicil is not determined by residence alone, nor by intention alone. Residence is preserved by the act, domicil by the intention. (Ortolan, 599.) A person may be absent from his domicil without effect. In the Roman law, absence from a domicil was treated with much refinement as “ praiseworthy, blameless and dishonorable.” (D. 4, 6.) I shall notice these distinctions at a subsequent place, for they are very indicative of subtle modern distinction.
The differences between Roman and Anglo-American law are obvious. In Roman law the question of domicil was immediately connected with that of local citizenship. Rome was the common country, or, as Modestinus said, “ Roma communis nostra patria est.” (D. 50, 1, 33.) The question in Roman law was who was a “ civis ” or “municeps”? (D. 50, 1.) While the conceptions relative to all such points were in Roman law beautifully worked out, so much so as to be regarded as the basis of all modern law on domicil (Bentwich Domicile & Succession, 32), yet the Roman law does not respond to all modem exigencies and it has consequently- been largely supplemented in England and America by conceptions of increasing value. In English and American law domicil relates to territory, not to localities within a political territory.
It is maintained, as stated at the outset, in common-law countries that a man can have only one domicil for most juridical purposes (Matter of Newcomb, 192 N. Y. 238; Dupuy v. Wurtz, 53 id. 556; Forbes v. Forbes, Kay, 341), and that every one must have a domicil. In passing I may observe that although this principle is distinctly denied in Roman law (JD. 50, 1, 27), and is obviously untrue in some modern cases, yet I shall give heed to it as a matter of course, even if it is apparent that foundling of unknown parentage, one who is a vagrant, for example, has no domicil, either of origin or of choice, either in law or in fact. One of the greatest judges in the history of «this state, Edmunds, denied the accuracy of the proposition that every one must have a domicil. But this point
Looking at her life history, it is evident that Mrs. Green’s domicil of origin was Massachusetts. The effect of her father’s subsequent removal to Hew York before her marriage does not figure in the case. Her husband’s domicil of origin was Vermont, and this is not controverted. The evidence submitted to me also «discloses that at the time of his marriage Vermont continued to be Mr. Green’s domicil. His prior business residence in the East, at Manila, was of a temporary and commercial character, insufficient to change his nationality or his domicil. I think that there is a presumption in the common law that an American merchant residing in Asia or in the East intends to resume his national domicil or domicil of origin in the absence of clear proof to the contrary. The proofs before me certainly disclose that in 1867, at the time of his marriage, Mr. Green’s, domicil was again in Vermont. Vermont, then, in the absence of positive proof to the contrary, was what is termed the matrimonial domicil of the spouses. Mrs. Bancroft, a witness called for the estate, testifies that immediately after his marriage Mr.' Green brought the decedent as a bride to Vermont and there they occupied a house.
Marriage is an international institution and more than a contract. It is, as Lord Stowell said in Dalrymple v. Dalrymple, 2 Hagg. Con. 63: “ principium urbis et quasi seminarium reipublicae.” Story confirms this conception of the marital relation. (Confl. Laws, § 108; Whart. Confl. Laws, § 127.) (And see Hyde v. Hyde, 1 P. & I). 130, 133.) Consequently in all systems of law marriage creates a novel matrimonial domicil for the wife wherever her prior domicil may have been. At common law the matrimonial domicil of a wife is that of the husband at the time of her marriage. (Westlake Priv. Internat. Law, §§ 361, 366; Whart. Confl. Laws, § 189; Dicey Confl. Laws, 511; Bentwich Domicile, p. 33; Merrill Confl. Law, 68.)
Whatever Mrs. Green’s domicil of origin, or her later im
The husband of decedent lived at the matrimonial domicil prior to the time of his death, and there he died and was interred in the last resting place of his respected and respectable fathers. A widow, in the absence of adequate proof to the contrary, retains the last domicil of her husband. The Roman law on this point, “ vidua raulier amissi mariti domieilium retinet” (D. 30, 1, 22), is cited by Story with express approval, and it is adopted in all countries without exception. It is needless to enlarge on a proposition so universally accepted in all systems of law.
That a widow being again sui juris and no longer in law or in fact sub potestate viri may change her domicil (Gout v. Zimmerman, 5 H. C. 440; Warrender v. Warrender, 2 C. & F. 488) is not now questionable, and it is consequently contended in behalf of the state of Hew York in this proceeding that Mrs. Green, the decedent, did change her matrimonial domicil, and that she became domiciled in Hew York where she died so domiciled. This, howrever, is expressly denied by the representatives of Mrs. Green. Domicil is, therefore, the real and the only issue now here. I shall briefly survey again the proofs and contentions on this particular issue before proceeding to consider the law of the case.
That the Tucker House at Bellows Falls, Vt., at some periods of longer or shorter duration, was the “ home ” and the only actual home of the Green family after 1879, and during the rest of decedent’s married life, the evidence before me, such as it is, amply discloses. If it is controlling that the home of the Greens is coextensive with their domicil and that Vermont was the matrimonial domicil of decedent until her husband’s death,
After her husband’s death, Widow Green, the so-called decedent, according to the false terminology of our statute, when physically able passed her summers at Bellows Falls, Vt. The title to the Tucker House had devolved on her and the property now forms part of her estate. It was a furnished residence of some pretensions and long family associations. It was unquestionably the only “ home ” or permanent abiding place of a residential character that either Mr. or Mrs. Green is shown to have possessed during their whole married life. There their children were nurtured and partly educated, or brought up. But after her husband’s death in 1902, and indeed to some extent before then, decedent passed more or less time away from Vermont in the transactions of her great business affairs in or about the city of Hew' York. She passed portions of the summer only in Vermont, with the exception of the year 1916, when she did not resort to Vermont, being then too fatally ill in the city of Hew York. The controlling evidence on this point, stated in the admission of counsel, accepted by the state as correct, is as follows: “ From the date of the death of the decedent’s husband in 1902 down to the time of her death in July, 1916, the decedent spent the greater part of each year in Hew' York city or in the vicinity of Hew York city, to wit, at Hoboken, H. J. Prior to the marriage of her daughter in the year 1909 she was in the habit of spending the entire summer season in Bellows Falls,-Vt., except for occasional short business trips to Hew York city. After her daughter’s marriage she ordinarily spent from four to six weeks in each year, ex
The accepted admission of fact discloses that decedent, while •absent from Vermont, passed as'much time in the state of Eew ■<1 ersey as in the state of Eew York. She seems to have divided her sojourns between Eew York and Eew Jersey. This fact seems to me fatal to the pretensions of the state of Eew York that her domicil by reason of a de facto residence during all her absence from Vermont was in the state of Eew York. While actually in Eew York city (and it is not pretended that decedent was elsewhere while in Eew York state) Mrs. Green flitted from furnished lodging to furnished lodging. She had no permanent home in Eew York. At times she even visited friends in the city of Eew York. It cannot, however, be gainsaid that decedent passed much of the latter part of her life in Eew York city, engaged in the actual transaction of her vast business. But that she ever had a home in Eew York, or that she had a home anywhere out of Vermont, the evidence does not disclose.
That a domicil is in law in some way connected with the “ home ” or principal residencé or abiding place of a person most systems of law and most jurists concede. (Story Confl. Laws, § 41.) The Roman definition of domicil cited by the •state and quoted in this opinion at length is susceptible of
That the Romans, as well as Mr. Dicey, regarded the “ home ” as a controlling element of domicil is, I think, apparent. Domicilium, indeed, primarily denotes “ home.” Cicero, no inconsiderable jurist, in a passage in the “ De S’enectute ’’ (C. 21, f which I happened on the argument to remember, evidently means by domicil the home: “Est enim animus caelestis ex altissimo domicilio depressus et quasi demersus in terram, locum divinae naturae acternitatique contrarium.” In _ this beautiful passage of Cicero domicilium,
While I remain quite of the opinion of Mr.' Dicey that an established home is an important element of domicil, I do not overlook the fact that the mere possession of a house in a foreign place does not establish a domicil ther„e. The Roman law was to that effect: “ Sola domus possessio quae in aliena civitate comparator domicilium non facit.” (D; 1, 17, 13.) But Mrs. Green’s “ Tucker House ” was, I think, to her something more than the mere possession of a house. The house itself was her only regular or fixed home, and that home was at her matrimonial domicil. That home and no other was the seat of the really important associations of her entire married life.
It is, however, urged by the state that Mrs. Green’s long continued absence from her Vermont home, and her protracted sojourns in Hew York are conclusive of a change of domicil without proof of her animus. But in Dupuy v. Wurtz, 53 M. Y. 556, 561, this proposition was, I think, denied, both in substance and in principle. I am not inclined to ignore the force, in the law of domicil, oí a long continued actual residence, for I recognize that some jurists of distinction attach weight to a
It is undoubtedly true that a long continued and non-intermittent residence in one place may conclusively negative in law a pronounced or declared intention to retain a domicil in another place to which the declarant or “ de cujus ” never resorts. This is merely an established exception to a general rule. Mr. Justice Holmes (in Dickinson v. Brookline, 181 Mass. 195) states the exception as follows: “Of course the argument for the plaintiff is that his domicil is presumed to continue until it is presumed to have been changed, that it would be changed only by his intent and overt act, and that ho ■expressly denied the intent. The ambiguity‘is in the last proposition. The plaintiff did not deny that he intended to keep ■on living as he had lived for the last -few years, and if the jury
Mrs. Green had 210 home in Rerv York. While here she resorted to various furnished lodgings, colloquially called “ boardi22g houses,” a2id her stays at them do 2iot appear to have been either continuous or long. Her habits, in so far- as these lodgings are C022cer2ied, Avere migratory. She ca2i hardly be said eve2i to have “lived” Í21 them. She stopped at these peculiar inns because she was forced to be Í21 or 2iear the monetary center of the Fnited States in order to conduct her financial affairs. She evidently f02122d the boardi22g houses seclnded and, what was more to her later taste, inexpe22sive. But she evinced no permanent intention of abiding in them, or of founding a permane22t home in them in Rcav York. Indeed, it is manifest that this is just what she did not inte22d to do.
It is quite competent in cases of this character, when the intention of a person is necessary to be established in order to constitute a domicil, to analyze the elements of legal intention and for. that purpose to weigh all the probabilities. The deceased lady and her husband, I may assume, were familiar to the old fashioned inhabitants of this city, for it is apparent that they had extensive connections here among those generally known by old fashioned Americans. They were by origin substantial Hew England people of good position, good birth, long traditions and excellent American associations both here and elsewhere. They well knew, I think, the difference between a “ lodging ” and a “ home,” between a residence and a domicil, and it is perfectly obvious from the evidence that Mrs. Green appreciated that she ought to have a regular family “ home,” and from her many declarations in evidence it is also apparent that she intended to have her legal domicil at that appropriate home. That she was, after her husband’s death, most away from her home or domicil does not completely negative this plain intention. She was in later life apparently obsessed and
The issue of domicil is now so complicated by modern conditions regulating mobility and by the incessant interlocking of local governmental and territorial regulations that an astute people, the French, see fit to provide in advance for its judicial solution. They allow the proof of intention — the main element of domicil — to be deduced from a declaration filed either in the city a, Frenchman is quitting or in the one to which he resorts. Civil Code, § 104: “ La Preuve de l’intention resultera d’une declaration expresse faite tant á la munieipalité du lieu que 1’on quittera qu’a celle du lieu on Lon aura transiere son domicile.” Can there be any doubt on the evidence before me that if this excellent law had been in force in the United States of America Mrs. Green would have formally declared Vermont to be her domicil and not Xew York? I think there is no doubt of this, as her so doing would alone conform to all her other written declarations put in evidence on the hearing.
. It- is a fixed rule of law that, once established, domicil is presumed to continue, in the absence of proof of another domi•cil. (Dupuy v. Wurtz, 53 N. Y. 558; Matter of Newcomb,.192 id. 238; .Mitchell v. United States, 21 Wall. 350.) In order to make out a new domicil there must be a union of residence and intention • — • factum et animus. (Matter of Newcomb, 192 N. Y. 250.) In this matter before me proof of animus, or intention, to change, is, as I said, wholly lacking on the part of Mrs. Green. If it is to be inferred from her extended sojourns here only, then it can only be so inferred under the exception noticed above, and I have already held that her residence here was of a kind inadequate to bring her within the exception.
That Mrs. Hettv Green’s domicil was Vermont and not Xew York is, I think, clearly established. Under "the decision of the Appellate Division in Matter of Martin, supra, this finding
If 1 am in error in assuming that "the Appellate Division, in Matter of Martin, intended to hold that the Taxable Transfer Act means by “ resident ” one domiciled here, then that act operates on two classes of successions: (1) those derived from residents, and (2) those derived from non-residents. Residence results from facts alone, not from intention. In law residence is something other than domicil. That it is competent for the legislature of the state of Yew York to tax successions from residents of the state, irrespective of their domicil, I do not doubt and have so stated before in Matter of Morgan, 96 Mise. Rep. .455. If a person Avhose domicil is not in this state volun
poses of this article, and for the just imposition of the transfer tax, every person shall be deemed to have died a resident, and not a non-resident, of the state of New York, if and when such person shall have dwelt or shall have lodged in this state during and for the greater part of any period of twelve consecutive months in the twenty-four months next preceding his or her ■death and also if when by formal written instrument executed withiii one year prior to his or her death or by last will he or she shall have declared himself or herself to be a resident or a citizen of this state, notwithstanding that from time to time during such twenty-four months such person may have sojourned outside of this state, and whether or not such person may or may not have voted or have been entitled to vote or have been assessed for taxes in this state; and also if and when such person shall have been a citizen of New York sojourning -outside of this state. The burden of proof in a transfer tax proceeding shall be upon those claiming exemption by reason of the alleged non-residence off the deceased. The wife of any person who would be deemed a resident under this section shall also be deemed a resident and her estate subject to the payment of a, transfer tax as herein provided, unless said wife has a •domicil separate from him.”
It is urged by the representative of the state of New York that the Act of 1916, as a mere amendment of section 243 of the Taxable Transfer Act, is to be justified and upheld as an -extension of a classification of persons or successions subject
Section 220 of the Tax Law enumerates the various methods of transfers of property that are taxable' under the Transfer-Tax Law of this state. It divides the persons who malee the taxable transfers into two classes -— resident and non-resident; and it provides, generally, that the intangible property of a. resident is taxable wherever such property may be located,, while the intangible property of 'a non-resident, even when located in this state, is not subject to a tax. Therefore, in so-far as intangible property is concerned, the classification provided in section 220 of1 the Tax Law is “ resident ” and “ nonresident.” It is obvious that if the legislature intended to add a new classification it wordd have amended the only section in the Tax Law which provides- for such a classification, namely.,
On the part of the state comptroller it is further contended that under the amendment effected by chapter 551 of the Laws of 1916, the decedent must be deemed a resident of this state within the meaning of that term in section 220 of the Tax Law, if it appears that she lived here more than six months of the twenty-four months immediately preceding her death. The portion of the amendment referred to reads as follows: “ For any and all purposes of this article and for the just imposition of the transfer tax every person shall be deemed to have died a resident, and not a non-resident, of the state of Yew York, if and when such person shall have dwelt or shall have lodged in this state during and- for the greater part of any period of twelve consecutive months in the twenty-four months next preceding his or her death.” This word “ deemed ” is used in many sections of the Tax Law, and has been construed to mean that certain facts therein described shall have a certain legal effect, and that the facts being admitted the legal effect is conclusive. I am inclined to think that the legislature in the
I cannot, however, agree with the contention of the state comptroller that the legislature by the amendment above quoted intended that a person who dwelt or lodged here for a period of six months and one day of the twenty-four months imme-. diately preceding such person’s death is to be deemed a resident of this state for the purpose of the transfer tax. Such an interpretation would result in such manifest injustice that I should be unwilling to accept it, unless the words of the statute were so clear and unequivocal as to admit of no other interpretation. It would, for instance, make a person a resident of this state and his estate subject to taxation as such, if he lived here for six months and one day and then sold his home here, bought a home in ¡New Jersey and went immediately to live in the ¡New Jersey home and lived there until the date of his death, seventeen months and twenty-nine days afterwards. I will not, therefore, assume that the legislature intended the effect which would necessarily result from the interpretation contended for by the state comptroller. I think that the use of the word “ consecutive ” shows that it was the intention of the legislature to make it essential that a person live in this state part of each of twelve consecutive months, and in the aggregate the greater part of such twelve months of the twenty-four immediately prior to his death before he would be deemed a resident for the
From the conceded facts and the evidence in this case I find that the decedent resided at Bellows Falls, Vt., from July 3, 1914, to August 15, 1914; that she resided in this state from August 15, 1914, to July 19, 1915; that she resided in Bellows Falls from July 19, 1935, to September 1, 1915; that she resided in this state from September 1, 1915, to October 1, 1915; that she resided in New' Jersey from October 1, 1915, to November 24, 1915> and that she resided in this state from November 24, 1915, to July 3, 1916, except that she stayed in Hoboken for a few days not exceeding a week at about the beginning of the year 1916. From these facts it appears that decedent did not reside in the state of New York for some part of each of twelve consecutive months of the twenty-four immediately prior to her death, and under my interpretation of the amendment effected by chapter 551 of the Laws of 1916 she is not to be deemed a resident of the state of New York for the purpose of- the transfer tax within the meaning of that amendment.
The proceeding will therefore be remitted to the transfer tax appraiser for the purpose of appraising the estate of the decedent as a non-resident of this state under section 220 of the Tax Law.
Decreed accordingly.