117 Misc. 189 | N.Y. Sur. Ct. | 1921
In this taxable transfer proceeding the domicile of the decedent must be determined. It appears that an application was made by the executor to the surrogate of New York county for the appointment of an appraiser, upon the theory that the decedent was a non-resident, owning property in that jurisdiction. After hearing had before the transfer tax appraiser, it was reported by him to the surrogate, that a question relating to residence was primarily involved. Upon a hearing before the surrogate of New York county, the completed proceeding was transferred to this court for determination, by order dated October 25,1921 (116 Misc. Rep. 640), upon the ground that, in the event it was found that the decedent was a resident of Westchester county, the court’s jurisdiction would be ousted by force of section 45 of the Surrogate’s Court Act, formerly section 2515 of the Code of Civil Procedure and section 228 of the. Tax Law.
Upon the hearing before me, counsel stipulated that the testimony on the subject of residence already taken in New York county may be received by this court with the same force and effect as if the proceeding had been originally instituted in the county of Westchester.
Every case involving the question of domicile must stand upon its own peculiar circumstances, must be bottomed on its own facts. Consequently, we must look to the leading cases of this state to test the question of domicile arising in the instant case.
Before we attempt to solve the legal question as to
The facts are not disputed. John Lyon, farmer, died July 12,1920, at Port Chester, N. Y. Since January, 1900, he had resided continuously at Port Chester with his wife and children. His domicile of origin was in Greenwich, Conn., where he was born in the year 1839. He was a descendant of one of the first settlers. The decedent never resided elsewhere than, first, on the farm where he was born, situate on Weaver street in Greenwich, Conn., and later on a farm located on King street, in the village of Port Chester, N. Y. These two places of residence, in an air line are about one and one-half miles apart, by the highway they are about three miles distant, with about an equal distance of either house from the boundary line dividing the states of Connecticut and New York. For convenience in transacting business in Greenwich, with present day conditions of highway and travel, either of these abodes offers equal opportunity.
The decedent married in Greenwich and reared his family there. Upon coming into a large inheritance, consisting of several farms and a large personal estate, he removed in 1900 to one of the farms on the then outskirts of Port Chester. The house upon this farm had been occupied by his deceased relative. It was a furnished modern farmhouse, containing conveniences. He visited his sister who lived in the old homestead on Weaver street until her death in 1910, sometimes passing the night, since which time the Weaver street house has been occupied by a caretaker. The decedent until his death worked the Weaver street farm with hired men and visited it several times a week. He was generally found there
In an affidavit verified August 21, 1900, submitted to the assessors of the town of Bye, the decedent states: “ I am not now, and never have been, and was not between May 1st and July 1st, 1900, a resident of this Town, or of the County of Westchester. My residence is now, and always has been in the Town of Greenwich, State of Connecticut, and that residence I have never surrendered and have never taken up residence elsewhere * * *. Although at present living at King Street in the Village of Port Chester, Town of Bye, I have not intended to make it my residence or to surrender my residence in the Town of Greenwich. Having never been a resident of the Town of Bye, I object to the personal assessment mentioned.”
In December, 1909, in relation to taxes in New York city, he swore that he was and still is a resident of
In reviewing at length the multitude of evidence
It may be said that prior to 1916 the burden of proof rested upon the party alleging a change of domicile. Dupuy v. Wurtz, 53 N. Y. 556, 562; Matter of Newcomb, 192 id. 238; People ex rel. Blocher v. Crowley, 21 App. Div. 304; affd., 155 N. Y. 700; Matter of Gad, N. Y. L. J. April 5, 1916; Matter of Brooks, 105 Misc. Rep. 559; Matter of Horton, 175 App. Div. 447; Matter of Lydig, 191 id. 117; Matter of Tallmadge, 109 Misc. Rep. 696. It may be that the burden still rests upon the party asserting another domicile. But, be that as it may, let us assume that, upon the authority of Matter of Barbour, 185 App. Div. 445; affd., 226 N. Y. 639, the burden of an intention to abandon a domicile of origin, which formerly rested upon those who assert it, no longer obtains in this state in a taxable transfer case (Matter of Frick, 116 Misc. Rep. 488, 491) by reason of section 243 of the Transfer Tax Law, being chapter 551 of the Laws of 1916, as amended by chapter 629 of the Laws of 1919, which says: “ * * * every person shall be deemed to have died a resident and not a non-resident of the
The burden laid upon the executor in the instant case by statutory law, in my opinion, has been met, overcome and destroyed by the evidence upon the record. It is abundant and convincing. It all indicated an undeviating determination — a plain intent. The cases of Dupuy v. Wurtz, 53 N. Y. 556, and Matter of Newcomb, 192 id. 238, 250, are the leading and foundation cases upon this subject in the state. Judge Rapallo in Dupuy v. Wurtz, supra, in referring to the elementary principles governing questions of domicile, says: “ To effect a change of domicil for the purpose of succession there must be not only a change of residence, but an intention to abandon the former domicil, and acquire another as the sole domicil. Residence alone has no effect per se, though it may be most important, as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicil. (Hodgson v. De Beauchesne, 12 Moore P. C. 283, 328; Munro v. Munro, 7 Cl. & Fin. 877; Collier v. Rivaz, 2 Curteis, 857; Aikman v. Aikman, 3 McQueen, 855, 877.) This rule is laid down with great clearness in the case of Moorhouse v. Lord (10 H. L. 283, 292), as
“ The existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. The question is one of fact rather than law, and it frequently depends upon a variety of cireum
These principles, so clearly and succinctly asserted in these two leading cases, are affirmed and restate'd by Mr. Justice McLaughlin, now of the Court of Appeals, in United States Trust Co. v. Hart, 150 App. Div. 413; affd., 208 N. Y. 617. There the court says: “ The fact that he resided in Paris most of the time from 1880, while important to be considered, certainly is not controlling, because domicile may exist without actual residence, but never without intention. (de Meli v. de Meli, 120 N. Y. 485.) ” Residence means living in a particular locality, but domicile means - living in that locality with intent to make" it a "fixed and permanent home. In order to acquire a new domicile, there must be a miion of residence and intention. Residence without intention, or intention without residence, is of no avail, etc. Matter of Roberts, 8 Paige, 519; Cruger v. Phelps, 21 Misc. Rep. 252,
Residence and intention, animus et factum, go hand in hand. They must he both present to create the change of domicile. An intention to abandon the former domicile must appear. Either residence alone, or intent alone, is not sufficient. Gleason & Otis Inheritance Tax, p. 214; Matter of Lydig, 191 App. Div. 117; Matter of James, 221 N. Y. 242, 256; Matter of Frick, 116 Misc. Rep. 488; 19 C. J. 423, n. 39; Plant v. Harrison, 36 Misc. Rep. 649; Frost v. Bristbin, 19 Wend. 11. The naked residence in itself amounts to nothing, unaccompanied with evidence of the animus. Isham v. Gibbons, 1 Bradf. 69, 89. Long continued absence from the domicile is not an indication of abandonment so long as the intention to return exists. The length of residence elsewhere does not affect the change. Matter of Blumenthal, 101 Misc. Rep. 83; affd. without opinion 186 App. Div. 944; Curtis v. Curtis, 185 id. 391; Matter of Harkness, 183 id. 396; Matter of Mesa y Hernandez, 172 id. 467; People v. Platt, 117 N. Y. 159; Matter of Chadwick, 109 Misc. Rep. 696; Matter of Frick, supra; Ǣtna National Bank v. Kramer, 142 App. Div. 444. Mr. Justice Jenks of the Appellate Division of the second department in Webster v. Kellogg Co., 168 App. Div. 443, also restates these principles.
, We must gather a dead person’s intention from his acts, his solemn statements and his conduct. It is a question- of fact, and it is the court’s duty to pass upon the facts as well as the law. Intention may be proved just as any other fact is proved by any relative evidence. Matter of Seymour, 107 Misc. Rep. 330.
Upon this point, the court in Dupuy v. Wurtz, says (at p. 562): “ With respect to the evidence necessary
And again, in Matter of Newcomb, supra, p. 252: “ While acts speak louder than words, the words are to be heard for what they are worth.” In United States Trust Co. v. Hart, 150 App. Div. 413, 417, referring to the character of evidence, the court says: “ One’s acts are always much more satisfactory as evidence of intention than his declarations, and written declarations are considered stronger than oral ones.” “ Declarations are primarily valuable as expressions of intention, but they are not controlling and are subject to be overcome by ' other and more reliable indications of the true intention. ’ * * * ‘ The time, occasion and manner of making them, the reasonableness and consistency with themselves and with the other proven facts in the case, the presence or absence of the suspicion of sinister purpose in making them enter materially into the estimation of their value.’ ” Plant v. Harrison, 36 Misc. Rep. 649, 669; Jacobs Domicil, ¶¶ 454, 455; Sherwood v. Judd, 3 Bradf. 267; Peterson v. Chemical Bank, 32 N. Y. 21; Isham v. Gibbons, 1 Bradf. 69; Matter of Zerega, 20 N. Y. Supp. 417; Hitt v. Crosby, 26 How. Pr. 413, 416.
In Cruger v. Phelps, 21 Misc. Rep. 252, 264, Justice Chase, later of the Court of Appeals, writes words that might well be used in the instant case. He says: “ In deeds and other instruments executed by and to
In Matter of Cleveland, 28 Misc. Rep. 369, the decedent had resided abroad for thirty-two years. Surrogate Varnum says: “ It is clear, from the evidence, that the testatrix preferred living abroad after her husband’s death for many reasons of habit, personal comfort and health, but I find nothing to satisfy me that she had any intention of giving up her residence and domicile in New York, even though she thought it probable that she might never return there to live, * * Matter of Brant, 30 Misc. Rep. 16.
The facts in the present ease fully supply and indicate the decedent’s intention to keep his domicile of origin in Greenwich, Conn. The acts are inconsistent with an intention on his part to change his domicile. The overt acts showing intent to keep the domicile of origin, with the utter lack of evidence showing an intent to abandon it, are not overcome or outweighed by mere residence here.
The state tax commission makes no attempt to controvert the facts established by the executor, and indeed, offered no evidence in contradiction. It relies upon its contention as to the law, that an enforced change of domicile by the very act of long continued residence in conjugal relationship may be created for a person. To paraphrase Justice McLaughlin’s statement in United States Trust Company v. Hart, supra, and apply it to the instant case: “ Unless one’s domicile can be changed for him without his intention, or in spite of his intention, he must-be considered at the time of his death as domiciled in Connecticut.” Counsel attempts to change the decedent’s domicile in spite
“ Intent ” is still one of the cardinal principles and one of the tests to be applied in ascertaining the domicile of a person. Webster’s Dictionary says “ intent ” means “ a determination to do a certain thing.” Therefore the combination of residence and intent calls for something to be done by a combined act— the physical presence of the person, coupled with the intent, a product of the mind. Yale v. West Middle School District, 59 Conn. 489. Justice Thomas, in Grim v. Lehigh Valley Goal Co., 171 App. Div. 498, speaking of intent, says: “The ascertainment of intention is usually a delicate process.” If the theory of the law contended for by the learned counsel for the commission is correct, then the union of residence and intent is destroyed, because the law will then take away the intent which is created by the mind, and a physieal residence will supply that element which the law, as I understand it, has stated, is necessary to create a change in domicile. Animus, it is claimed, may be presumed as matter of law from residence.
The cases in this state do not support the argument that continued residence will after a period cause the word “ intent ” to be stricken out of the legal definition of how a domicile may be changed, as such definition has been declared in Dupuy v. Wurtz, supra. Matter of Newcomb, supra, 251, -says: “ This discussion shows what an important and essential bearing
In Matter of Rutherford, 88 Misc. Rep. 414, affd., 171 App. Div. 900, Surrogate Fowler held that inten-, tion and residence, were concurrent. See, also, Matter of Wise, 84 Misc. Rep. 663. In Matter of Long, 167 N. Y. Supp. 1023, Surrogate Fowler, in speaking of the evidence, said: “ He (the decedent) had not objected to personal tax assessments in this city and he had not exercised the right of franchise in Pennsylvania. These are controlling factors upon the question of intent.” In the instant case John Lyon protested his assessments, in Port Chester and voted in Greenwich, Conn.
In Matter of Curtis, 178 N.Y. Supp. 286, the learned surrogate again says:.“ On the other hand, a domicile once acquired is not always affected by non-residence if the intent is to retain the old domicile. A
As these two decisions are in point of time subsequent to the Green case, it cannot be well said by counsel to the commission, that even Surrogate Fowler, in 1919, was inclined to follow the principle that supplants animo et facto by animus merely.
The fact of a “ long residence abroad ” was urged and considered in Dupuy v. Wurtz, supra. The doctrine was also urged upon Surrogate Bradford (1849) in I sham v. Gibbons, 1 Bradf. 69, 89. The: learned counsel cites Chaine v. Wilson, 1 Bosw. 673, in support of the proposition. That being a case dealing with residence in reference to the law of attachment, it has no significance. De Meli v. De Meli, supra; Irwin v. Raymond, 58 Misc. Rep. 319. Chief Justice Holmes in Dickinson v. Brookline, 181 Mass. 195, adopted the legal principle, that “ a long continued and non-intermittent residence in one place may conclusively negative in law a pronounced, or declared intention to retain a domicile in another place to which the declarant, or ' de cujus ’ never resorts.” This, however, at most is an established exception to a general rule which has not fastened itself upon the law of this state. Matter of Frick, 116 Misc. Rep. 488. In the Bickinson case, the question of domicile -was decided as one of fact by the jury’s finding upon evidence submitted. Even in that ease the court said: “Of course, if hereafter, upon the recurrence of this question, Mr. Dickinson is prepared to state that he never has given up his expectation of actually living in Cohasset, while that testimony would not take away the town’s right to go to
If this principle is to be adopted by our courts, it could be applied in the instant case. The fact of the decedent residing with his family in New York state for twenty years is not denied. But, our courts have not yet applied this rule of law so strongly contended for by the learned counsel for the state tax commission. In Plant v. Harrison, supra, Justice Leventritt, in a very elaborate opinion, upon the question of domicile, referring to the contention that mere physical presence in the domicile elected as abandoned, will cause a revivor of the domicile of origin, says': “ Such a thesis, I take it, would be quite revolutionary of the entire law of the change of domicile and supplant the inseparable animo et facto by animo merely. The mere statement contains its own refutation.” The learned counsel of the state tax commission in Matter of Gad, supra, contended for the reverse of his argument in the instant case, and succeeded in having the court agree with him that a non-residence of twenty-two years was of no avail, and was not in itself sufficient to. create a change in domicile, overcome as it was by evidence, of far less probative force than exists in the present case. He there upheld the principles so clearly stated in Dupuy v.
Consequently, this court is called upon to follow the well-settled law, at least in this state, relating to domicile as laid down in the cases of Dupuy v. Wurtz, supra; Matter of Newcomb, supra; and United States Trust Co. v. Hart, supra. In the cases where our courts have held the former domicile abandoned, it was always upon the ground of a clearly proved voluntary and intentional acquisition of' a new domicile. The union of factum (residence) and animus (intent) so necessary under the application of the principle of these three leading cases, does not occur in the instant case. The burden of proof cast upon the executors to show a lack of such union has been sustained. Even irrespective, however, of where the burden of proof may rest, the undisputed evidence in the record makes it apparent that John Lyon never abandoned his Connecticut domicile. The facts in Matter of Barbour, supra, are not altogether unlike the facts in the instant case. There, similar evidence was held to point irresistibly to the fact that the decedent intended to presume his domicile in the state of New Jersey.
The character of the residence being maintained for so many years, with property of a large amount in both states, it is not claimed that any question of evasion of the payment of a tax in New York state is involved. From the whole narrative, it is the court’s opinion that there is no abandonment, sine animo revertendi, in law or fact, of his Connecticut domicile. To restate: unless one’s domicile can be changed for him, without his intention, he must be considered at the time of his death as domiciled in the state of
Ordered accordingly.