183 A.D. 396 | N.Y. App. Div. | 1918
This is an appeal by the administrators of the estate of the decedent, Lamon V. Harkness, from an order of the Surrogate’s Court remitting the proceedings to an appraiser to appraise the estate of decedent, upon the determination reached by the surrogate that the decedent at his death had his domicile in the State of New York.
The case presents solely the question whether the evidence establishes as a fact that on January 17, 1915, when the decedent died in California, his domicile was in the State of New York. The question arose mainly because the decedent for many years," like many other very wealthy men, maintained at one and the same time several places of residence in different States. This has led to more or less plausible claims as to Ms domicile at the instance of the taxing authorities of the States of New York, California and Kentucky. It becomes necessary, therefore, to determine the intent of the decedent and answer the question whether at the time of his death he considered New York to be Ms home. The Supreme Court of Califorma has decided the question in favor of Kentucky. As the decedent’s intent is a controlling consideration, it is helpful to review to some extent his Mstory, manner of life, Ms activities and interests, for the inferences to be drawn from Ms acts and conduct are more important than declarations, either written or oral. (Dupuy v. Wurtz, 53 N. Y. 556, 562.)
The decedent was born in OMo in 1850. At the age of nineteen he went to Kansas with Ms father and married there three years later. For substantially twenty years he resided continuously on his cattle ranch in Kansas, about twelve miles removed from the nearest village. He had no other place of abode. At the conclusion of tMs period he was about thirty-
In the spring of 1895, when the time was drawing near for his daughters to take a more active part in social activities, decedent concluded to acquire a town house and purchased an unfinished house at 933 Fifth avenue in the city of New York. The construction of the New York house was not completed until the fall of 1896 and the winter of 1895-1896 was spent by decedent at Walnut Hall, his family, however, passing a part of the winter at the Plaza Hotel in New York city. The summer of 1896 found the family in the Greenwich home as usual. The decedent now had three dwellings, one in Greenwich, one in New York and one in Kentucky. Up to this time, however, his domicile concededly was at Greenwich. The Comptroller contends that in the fall of 1896 the decedent abandoned Greenwich as his domicile, although he continued his residence there in the same manner as theretofore for upwards of ten years, and that he adopted New York city as his domicile. On this issue the burden of proof rests upon the Comptroller, who asserts that a change of domicile was made. (Matter of Newcomb, 192 N. Y. 238, 250.) So far as evidence of intent to abandon Greenwich and adopt New York as a domicile is to be inferred from decedent’s manner of fife after 1896, from his interests, and his use of the newly-acquired town residence, it is difficult to find any support whatever for the Comptroller’s contention. The Fifth avenue house was first opened in the fall of 1896, the household, consisting of the servants, wardrobes, horses,
In September, 1905, Mrs. Harkness became seriously ill at Greenwich and on September twenty-fourth she was removed to the New York house in order that she might be attended by a New York physician. The house was specially opened for this purpose. Mrs. Harkness died there three weeks later and was buried from there in Woodlawn Cemetery, which is between New York and Greenwich. After the funeral the house was boarded up and a caretaker was put in charge. A significant item of evidence at this point is that the decedent announced his intention of selling the New York house, and he put it in the hands of two well-known real estate firms for sale. No offer was ever made for it, however, at anything like the price at which the decedent held the property. Not only were the doors and windows boarded up but a wooden fence was erected along the Fifth avenue front of the house, a condition which continued from the death of Mrs. Harkness down to the day of decedent’s death, except in the winter of 1907-1908 when one of his daughters opened up the house and occupied it for nine weeks. With this exception, from the death of Mrs. Harkness in 1905 until decedent’s death in 1915, a caretaker continuously occupied the house throughout the year. The only use made of this house by the decedent during all of these years was that he slept in the house a few times when passing through town in 1907-1908, on which occasions the caretaker provided meals for him and, similarly, in 1910 and in December, 1911, he
Upon the death of Mrs. Harkness in 1905 the decedent was fifty-five years of age. Practically all of his life he had lived in the country, his chief interest, outside of his family, being horses, cattle and sheep. He was devoted to country and out-of-doors life and spent a minimum of time in the city, the testimony all being to the effect that he had a strong dislike for city life. He was not a director of any business corporation and carried on no business, except to look after his investments. He apparently had no city interests and took no part in the social life of New York. The only clubs that he belonged to were those that were conveniences in connection with yachting. He evinced no interest in public affairs and did not even take the trouble to vote. He did, however, take the trouble to swear off any liability for the payment of personal taxes in New York. If he did not adopt New York as his domicile prior to the death of his wife in 1905, considering the previous fife of the decedent, his character' and interests as portrayed by the evidence, it would require fairly strong proof to show that he adopted New York as a domicile after 1905. Indeed, it is not contended by the Comptroller that there was any definite adoption of a New York domicile after 1905, his contention being that it took place in 1896 when the Fifth avenue residence was first opened for the use of his daughters. Nevertheless, as the Greenwich domicile concededly did not continue after 1907, when he finally sold his place there, and as he had to have some domicile thereafter, it becomes necessary to review his manner of living briefly after the death of his wife. In the winter of 1905-1906 he was in California with his son and a cousin, who from this time until his death was his close companion. The decedent and his cousin spent the summer of 1906 abroad. When he returned in September he went to Walnut Hall where he remained until January, 1907, and then again went to Europe, where he remained until September, 1907, when he returned to Walnut Hall and there remained until December, 1907. He then went on a yachting trip to South America and on his return in March, 1908, after stopping one week at the
Nevertheless, counsel for the State Comptroller has by dint of great industry produced a number of items of evidence, consisting of declarations and bits of evidence claimed to have the force of declarations, from which the court is asked to draw the inference that decedent abandoned his Greenwich domicile in favor of New York, and that, in any event, Kentucky was not shown to be his domicile of choice at the time of his death. Great stress is laid upon the alleged testimony of decedent’s daughter, Mrs. Edwards, that the household was removed from. Greenwich to New York. A quotation from the record shows the extent to which counsel goes in attempting to build up his case. Mrs. Edwards was examined by counsel for the administrators as follows: “ Q. And do you remember any removal of the household from Greenwich, Connecticut, to anywhere else? A. Well, later? Q. Yes.' Where did you go? A. To New York. Q. And where .did you go, did you go then to Kentucky, to Walnut Hall? A. Yes.” This is a very slender basis for the Comptroller’s conclusion. The meaning of the witness is perfectly apparent. The servants and the household menage were transferred to the New York house for two winters and back again in the summer, but bringing them to New York for the winter is no more evidence of decedent’s intention to change his domicile from Greenwich to New York than was their transfer back to Greenwich in the summer evidence of an intent to change his domicile back from New York to Greenwich. As has been shown, Greenwich continued to be occupied just as theretofore for eight years after this alleged “ removal.” There are in evidence the marriage certificates of his two daughters signed by the decedent as witness, one dated 1898, the other 1899, in which the residence of the daughters is said to be 933 Fifth avenue, New York city. But these were the statements of the daughters, and even if their declarations, made under such circumstances, were called to the attention of the decedent, of which there is no evidence, they were merely statements of residence which were entirely correct and quite natural in view of the use made by the daughters of the town house for social affairs, and were not in any sense persuasive proof of the domiciliary
The declarations above referred to are the only ones bearing upon the period of the alleged abandonment of Greenwich in favor of New York and are wholly insufficient in probative force, quite irrespective of the evidence adduced by the administrators to the contrary.
As it is the Comptroller’s contention that the decedent abandoned his Greenwich domicile for New York prior to the .death of his wife in 1905, and as there is absolutely nothing in the life of the decedent after that time which indicates the slightest intention of his taking up either a residence or domicile in the city of New York, any declarations subsequent to 1905, referring to decedent as a resident of New York, are of little moment. The only circumstance that entitles them to consideration is that decedent undoubtedly abandoned his Greenwich domicile after the death of bis wife, and as there is some evidence, in the shape of declarations, tending to show that he did not adopt Kentucky as his domicile, it is open to the Comptroller to claim the benefit of declarations in favor of New York. The strongest evidence
In Matter of Morgan (176 App. Div. 909) the court held that the decedent was domiciled in New York at her death in August, 1913. She had made the following declarations:
1. In 1903: (a) Decedent brought an action in the Supreme Court in New York county, for an accounting and for appointment of new trustees under her husband's will, and in the verified complaint, she alleged: ” The reason why the plaintiff, Carolyn F. Morgan, desires to resign is that she is a resident of the City of Washington, in the District of Columbia;” (b) in the same action she signed and acknowledged an instrument of resignation in which she asked leave to resign as trustee “ on the ground that I am no longer a resident of the State of New York, but reside in the City of Washington, in the District of Columbia;” (c) the referee reported that the decedent was a resident of the city of Washington, in the District of Columbia. 2. In 1905: (a) In a deed signed and acknowledged by decedent she is described as a resident of Washington; (b) she is so described in a contract: (c) she*408 is so described in a mortgage. The foregoing declarations were made prior to the death of decedent’s husband. 3. In 1907: (a) In two deeds the decedent as grantee is described as a resident of Washington; (b) she is so described in a mortgage executed and acknowledged by her. 4. In 1909: (a) The decedent, the mortgagee, is described as a resident of Washington in two mortgages; (b) she is so described in two deeds; (c) she is so described in a deed to her as grantee. 5. In 1910: (a) The decedent as grantee is described as a resident of Washington in a deed. 6. In 1913: (a) Decedent as lessor is described as a resident of Washington in a lease; (b) she is so described in an agreement signed and acknowledged 'by her.
In United States Trust Company v. Hart (150 App. Div. 413, 417) the court said: “ One’s acts are always much more satisfactory as evidence of intention than his declarations, and written declarations are considered stronger than oral ones.” (See, also, Matter of Mesa y Hernandez, 172 App. Div. 467; Matter of Newcomb, supra.) A striking illustration of the same principle was afforded by the California Supreme Court in dealing with the domicile of this decedent. There the court had presented to it the two affidavits above referred to, dated 1910 and 1912 respectively, in which the decedent swore that his domicile was in the State of California. Yet the California court, although these declarations could have been considered as, to some extent, fortified by the length of time that the decedent had spent in California and by the fact that he died there and made an income tax return there, was broad enough to brush these declarations aside in favor of the intent to make Kentucky his domicile during the latter years of his life, which was so much more forcefully shown by his acts, as opposed to declarations. So, here, the declarations above considered, and such additional items as an. occasional hotel registration when passing through the city of New York, and the fact that some deeds to real estate described the decedent as of the State of New York while others gave his residence as in Kentucky, all contradictory and lacking strong probative force, must give way before the plain inference to be drawn from the decedent’s manner of life, his character, and his interests, all of which lead irre
It follows, therefore, that the order of the surrogate must be reversed, with costs, with direction that the proceeding be remitted to the transfer tax appraiser for the purpose of appraising the estate of the decedent as a non-resident of this State.
Clarke, P. J., Latjghlin, Dowling and Page, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and proceedings remitted as stated in opinion.