157 N.Y.S. 474 | N.Y. Sur. Ct. | 1916
This is a proceeding under the Transfer Tax Law. The decedent died in London, Eng., March 8, 1914. In this proceeding to fix the transfer tax, commenced upon the
The proceeding was originally referred to Mr. John F. Martin, appraiser, and affidavits were filed with him. Thereafter, upon his retirement from office, the proceeding was continued before Mr. William J. Campbell, appraiser, and1 it was stipulated that the proceedings already taken should be deemed to be taken before the new appraiser. In June, 1915, appraiser Campbell referred the matter to the surrogate for determination of the issue of decedent’s last domicile or residence. Thereafter and on October 22, 1915, the executor, who, in the petition for probate, had alleged that the decedent was resident in Paris, France, and who up to that time in this proceeding had made the contention of a domicile or residence in France, procured an order for the taking of depositions of four witnesses, residents of London, in order to prove that the decedent at the time of his demise was domiciled or resided in London. These depositions have beefi returned. The matter now comes on before the surrogate for hearing upon these depositions and the testimony taken before the appraiser. Before entering on a consideration of the facts I will briefly refer to- the law governing this matter.
The Transfer Tax Law classifies taxable transfers primarily according to residency: “(1) Where the transfer is * * * from any person dying seized or possessed thereof while a resident of the State; (2) * * * from a nonresident.” The
government in this matter claims that Mr. Martin, deceased, was at the moment of death a resident of this State. The controversy before me concerns Mr. Martin’s last residence, not his
Tbe matter is a somewhat complicated one by reason of the extreme mobility of modern times. As Sir William Vernon Harcourt once said (Foreign Relations U. S., 12431) : “ Of all questions of law those which concern domicile are the most complicated and obscure, because they ultimately depend on the intention which is necessarily of all things the most difficult to determine.” But, perhaps we ought to note that at the time this was so said the books of the law were less clear than they are now on rules regulaing proof of intention when regarded as an issuable fact. At the present day intention may be proved just as any other fact is proved, by any relevant evidence. Intention is no longer regarded as hermetically sealed up in a man’s inner consciousness and as incapable of proof. In other words, intent is no longer a “ hidden mystery.” A state of mind is now provable in the same manner as a state of health. (Phipson Ev. 52, 133, and cases there cited.) Declarations of the person whose domicile is disputed are one mode of proving intention. Such declarations are always competent to prove animus or a state of mind .or intent. (Matter of Newcomb, 192 N. Y. 238.) Any other proof of intention, if legally relevant, is equally competent. But not all declarations of ene deceased are of the same weight. Declarations are relevant when made under some circumstances and irrelevant or of trifling value when made under others. I agree with the statement of Mr. Dicey (Conf. L. 139) that: “ Any circumstance may be evidence of domicile which is evidence of residence (factum) or of intention to reside permanently (animus) within a particular country.” The limitations on the rules of evidence on domicile I shall discuss further when I come to consider the nature of the evidence submitted to me in this matter.
Before entering on the consideration of the facts in this par
It will be observed that the Transfer Tax Act now under consideration does not speak of the domicile of taxable persons, but of their residence. In some of the books of the law “ domicile,T and “ residence ” are treated as convertible! legal terms,- but, as pointed out in Matter of Newcomb (192 N. Y. 250), domicile is a more exclusive term of art than residence. I observe that Matter of Rewcomb was a succession case, and in some respects there is a distinction between a domicile when regarded for the purposes of succession and a domicile for the purpose of taxation. In the latter class of cases-1 apprehend that a change of domicile or nonresidence may be more easily established than in a case where the rules of succession in a new or old domicile-are invoked. I am confirmed in this distinction by several adjudications. (Somerville v. Lord Somerville, 5 Ves. 750.) It is said, for example, in later cases that: “ Domicile has-, many meanings, according as it is- used with reference to succession or for determining rights of belligerents or for ascertaining trading privileges. (Per J. O., Yelverton v. Yelverton., 29 L. J. P. & M. 40, 1 Sw. & Tr. 574, cited I Stroud, 566.) The difference between a domicile for the purposes of a succes
In some instances domicile and residence are convertible terms. In Lower Canada, where article 63, Civil Code, requires a marriage to be solemnized at the domicile of one of the parties, the term “ domicile ” is held to- mean residence, and not to refer to an international domicile. ■ (McMullen v. Wadsworth, 59 L. J. P. C. 7, 14 App. Cas. 631.) But on the other hand, Lord Westbury in Bell v. Kennedy (L. R. 1 Sc. App. 320), said: “Residence and domicile are two perfectly distinct things. Domicile is an idea of law; it is the relation which the law creates between an individual and a particular locality or country.” Dicey (Conf. Laws, 83, notes) makes some discriminating comments on the confusion of the term “ residence ” -as contradistinguished from domicile. In Matter of Newcomb (192 N. Y. 238), the Court of Appeals said: “ Residence means- living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile.”
In Matter of Grant I referred to the principle that domicile always refers to territoriality, not to a particular place in a political territory. (83 Misc. Rep. 262.) In this regard iSavigny properly says: “ The principle of domicile is to be ¡regarded -as determining, in the ordinary ease, the peculiar territorial law to which, as his personal law, every individual is subject.” So Dicey’s Conflict of Laws (69) says: “Les domicilii means the law of the country where a person is domiciled. The Scotch judge, Lord Jeeery, made the proper distinction in Arnott v. Groom (Ct. Sessions. Cas., 1846, 9 D., p. 150) : “ I cannot admit that in order to make a domicile it is
Whether or not the term residence is or is not -held to be equivalent to domicile at the present stage of legal development in this State, the adjudications on domicile are certainly highly instructive of the principles which ought to govern a legal residence. Therefore I have not hesitated in different adjudications to apply such principles in -a proper case. (Matter of Grant, 83 Misc. Rep. 257 ; Matter of Wise, 84 id. 665 ; Matter of Riley, 86 id. 628 ; Matter of Rothschild, id. 364 ; Matter of Mesa v. Hernandez, 87 id. 242 ; Matter of Rutherford, 88 id. 414.) In the interpretation of statutes in England I observe that the courts of that country frequently regard residence and domicile -as convertible terms. A joint stock company is, for example, “ domiciled ” only where it. “ resides.” (Jonas v. Scottish Acc. Ins., 55 L. J. Q. B. 415 ; 17 Q. B. D. 42.)
If there is any distinction to be drawn between the terms domicile and legal residence, I take it that the looser term is residence, and that a change of residence is much more easily
There is another principle to be considered. The main rule governing taxation as applied to a State of our American Union is that its taxes must fall on subject matter within its territorial jurisdiction. Of course, personal property of residents of the State is only taxable because of its fictitious relation to legal residency. Personal property of non-residents is theoretically not within the jurisdiction of a State for the purposes of taxation. The 'adjudications to the contrary giving an independent situs irrespective of the domicile of the owner for taxing purposes only is an exception to a general rule of law, and consequently, as it ought to be, of very limited application.
In cases of this kind, where an obvious effort is made to escape taxation in the domicile of origin by a constructive reference to a new residence of choice alleged to be acquired in a foreign country, the element of factum, or new residence, should be clearly established by the proofs. Such an instance is a proper one for the application of the Anglo-American rule that “ no person can be without a domicile.” (Dicey Conf. Law, 97.) While this' rule last, mentioned is not generally admitted to be an accurate statement of public law by the publicists of Europe, such as Savigny, as I attempted tó show in Matter of Grant (83 Misc. Rep. 264), yet this rule, if rule it is, is, I think, a very good one for -application in cases of this character relative to the proper incidence of taxation. Having now cleared away, to some extent, the generalities of legal discussion, we may approach with more accuracy the finite question now submitted to me in this matter for adjudication: Was or was not the deceased Mr. Martin -a resident of this State, for the purpose of taxation, at the time of his demise ? This is the only question now here, and it is largely a question of fact. Lét us
The decedent, Mr. Martin, was1 born in Albany, N. Y., in 1849 and was educated in Albany. He never married. It appears that Mr. Martin at one period became a member of the Tenth Regiment, National Guard of the State of New York, and was promoted to the rank of colonel in that.organization. About 1885 Mr. Martin removed to New York City, and there he lived in a house on Twenty-first street, which was furnished with some articles taken from his- parents’ home and brought to New York from Albany by Mr. Martin. Later it seems that Mr. Martin resided with his sister in the city of New York, •and for a time at the Murray Hill Hotel, in the same city. "Upon the opening of the Plaza Hotel, New York City, in October, 1901, Mr. Martin -engaged rooms. From that time on Mr. Martin occupied a suite of two rooms and bath in the Plaza Hotel, and upon his return to town from abroad in the autumn of each year .always occupied the same rooms. He had no definite lease of this particular suite, but his arrangement with the hotel manager was that he should always have the same rooms, and that while- he was -absent some of his belongings, namely, articles of “ bric-a-brac ” and four or five small paintings, should be removed- from these rooms to the hotel storeroom. Mr. Martin did nd-t pay for the suite of rooms during his absence. When he registered at the Plaza Hotel he gave New York as his residence.
Mr. Martin’s pl-aces of residence, sojourn and itinerary prior to 1904 are not so clearly set forth in the record as- they are for the period subsequent to- 1904. Mr. Martin’s movements during the later period -are given in much greater detail by his man-servant, one Frederick 0. Smith, who entered Mr. Martin’s employment in the autumn of 1904. Later we find Mr. Martin at the Berkeley Hotel, in London, after coming from Paris, and after staying in London for a week he came to New York,
Thus it appears that from 1904 on and up to the time of his brother’s death in February, 1913, Mr. Frederick Townsend Martin always returned to the Plaza Hotel, New York City. He habitually wintered in New York, making a short trip during the season to Palm Beach, so as to be there during the gaiety. Hs usually went abroad in the early summer to England and the Continent and returned to New York to the Plaza Hotel in the autumn of each year.
While Mr. Martin was- in England he ordinarily stopped at the Berkeley Hotel in Piccadilly. In December, 1913, upon the death of his intimate friend, Mr. Henry M. Sands, Mr. Martin was- bequeathed all Mr. Sands’ jewelry and his furniture, books, paintings and household effects which "were in the apartment at No. 48 Avenue Gabrielle, and he was also bequeathed the sum of $25,000. Mr. Martin voluntarily regarded the pecuniary bequest as one intended to provide a place where- the articles left by Mr. Sands could be kept, but this was a sentí
A considerable portion of the last few months of decedent’s life was devoted to- acquiring furniture, paintings and other articles suitable for fitting up the house at Ro. 6 Great Cumberland place, London, as a residence. In the course of the purchasing of such articles Mr. Martin made various declarations as to the intended use to- which this house was to be put. It is upon the conduct of the decedent in these last few months that the executor predicates a London domicile or last residence.
In examining the contention of the estate in this proceeding and in determining whether or not the residence- of Mr. Martin was within this jurisdiction at the time of his death, certain well established principles must be applied. It is well settled that “ domicile ” includes something more than residence. As the decedent was born in this State, educated in this State, and until 1890 did not maintain any -senrblance of a residence without the State, his domicile up to 1890 was undoubtedly within this State. As the executor urges- a domicile outside of this jurisdiction, that domicile must be deemed to be one of choice. It superseded the domicile of origin. The burden, as stated before, is upon the executor to establish such change. (Matter of Newcomb, 192 N. Y. 238.) The burden is not upon the state comptroller to- establish a Rew York residence, as seems to.be the contention of the learned counsel for the «estate. That contention is based upon the assumption that a residence in Paris was established. The learned counsel fpr the- state comptroller does not contend that the Rew York domicile originated only when the Paris residence ceased in 1915, but correctly urges that his domicile of origin was within this jurisdiction and that it continued the legal' domicile. ,T-he testator’s domicile is deemed to continue here, in ther absence of affirmative
A good deal of evidence has been directed to Mi\ Martin’s declaration contained in his published writings, It seems to me that this is a very light character of evidence. Whatever Mr. Martin may have been, it is evident that he was not technically or professionally “ a .man of letters.” He ought not, I think, to be held to account for volatile utterances contained in his slight literary performances. Declarations to be evidence must be made under more solemn circumstances than is evident in books such as Mr. Martin’s: 'Declarations to- be evidence ought to be spontaneous- utteranres connected with some competent res gestae. They should not be declamations or apostrophes contained in books published by an amiable and un
In my judgment too much attention has been paid to the nature of Mr. Martin’s Paris residence, as that fact is really immaterial, at this time, to a' correct solution. During the time that the Paris apartment was maintained, as Mr. Martin had his rooms at the Plaza Hotel and his conduct in "no way evidences a conclusive intention to make Paris his home, the evidence points emphatically to a continuation of the Hew York domicile of origin. When a notice was received, for example, from the commissioner of taxes in this city, Mr. Martin appeared on -the 8th day of Hovember, 1912, and procured an exemption on the ground that he had no taxable assets. The notice referred to Mr. Martin as of 505 Fifth avenue, and his deposition before the commissioner gives his residence at the Plaza Hotel. In the same year Mr. Martin was served with a notice to attend before the copmiissioner of jurors for the purpose of qualifying as a juror. Mr. Martin attended accordingly and claimed exemption on the ground that he had been a member of the Hational Guard. He did not urge nonresidence though the notice addressed to him stated his residence at the Plaza, and his business address at 505 Fifth avenue, in the city of Hew York.
The will of the testator describes him as of the city and State of Hew York, and much importance is attached to this recital. The will was executed April 29, 1913, or during the time Mr. Martin had returned to Hew York for a short sojourn, he having gone abroad in February. Although in Hew York
The real inquiry concerns the assertion that Mr Martin acquired a domicile in London during the last few months of his life. As has been before pointed out, the executor first urged that Paris w-as Mr. Martin’s last residence. It was only after these proceedings had been begun that London was asserted to be his last legal residence. It is immaterial, for the purposes of this proceeding, that Mr. Martin sometimes resided in a particular country other than New York. The legal question is whether his domicile of origin in this State was ever relinquished in favor of a domicile or residence in England. In a determination of the latter question it is important, as a subordinate consideration, to notice that the executor bases the claim of exemption from taxation upon the acquisition of a domicile or residence in London, succeeding an earlier domicile in Paris. The executor did not at first urge that the domicile in London, the one now relied upon in this proceeding, directly succeeded the relinquishment of the domicile of origin. That is, the executor now asserts that the London domicile or residence was the second domicile or residence of choice. ■ If such a contention is correct, the burden of establishing a New York
In or after 1914 it appears that Mr. Martin purchased a residence in London and- devoted a considerable portion of his time in furnishing it. He went about among the London shops acquiring furniture and ornaments for this new house, and he purchased some of the contents of the house from one Mrs. Goudy, the former owner of the premises. While making these purchases- it seems that various declarations were made by Mr. Martin in the different shops which he visited. Such declarations are contained in the depositions of three of the witnesses. The substance of these declarations- is that Mr. Martin intended to make his permanent residence at Ho. 6 Great Cumberland place, London. Up to this- time this bachelor had for years really been without any regular home. He was a mere “ bird of passage,” stopping mainly at hotels. He had no regular residence; he was- here to-day and off to-morrow. But when he acquired a dwelling house in London he did -an act which in law is highly significant of intention, and when he definitely declared his intention of thereafter residing in London such declarations seem conclusive on an issue of this character. I take it, in any event, that these declarations in London, as the last made by Mr. Martin himself, are entitled to- very great weight. I think the deed of trust executed by Mr. Martin February 18, 1914, appointing a trustee of Lord Craven’s estate, in which Mr. Martin describes himself -as of Ho. 6 Great Cum-
Before concluding I will for a moment consider the alleged errors in the reception of evidence by the appraiser. The executor urges various errors. Petitioner’s exhibit “ D,” which is the letter head of the American Embassy Association, contains merely cumulative testimony and should be disregarded. The identity of the person ref erred to in exhibit “ C ” was sufficiently established to allow its introduction in evidence; not only was there a presumption of identity from similarity of names (Douler v. Prudential Ins. Co., 143 App. Div. 537), but there was also a positive identification. The appraiser excluded the record of the commissioner of jurors, and all that was before him was the jury notice, which was- shown to have been received by Mr. Martin.
The letter which was offered in evidence as exhibits “ E,” “ F,” and “ Gr,” bearing date March 4, 1914, was properly received. The carbon copy of -the letter was not introduced as secondary evidence or in any way in lieu of the original. The state comptroller did not offer the paper in evidence as a written declaration of the testator, but .as Mr. Parsons’ memorandum of the verbal declarations made to him on March 4, 1914, when the letter was1 dictated. The question is not whether the original letter was admissible, but whether the oral declarations of Mr. Martin made to his secretary should be received. The objection originally interposed upon broader grounds by the learned counsel for the executor was later confined to £.n objection that the carbon copy or transcript of the stenographer’s minutes could not be received in lieu of the original stenographer’s record. Under.the decisions- a written memorandum made -at or about the time of the testator’s death could be used by Mr. Parsons to refresh his recollection, or, if upon reference thereto by him his recollection was not refreshed, the memoran
In the case at bar, moreover, the memorandum can be disregarded. The witness Parsons stated that he could give the substance of the dictation without reference to the letter, though he did not remember the exact wordsl But any error in the reception of the memorandum is harmless in this ease. Proceedings before appraisers are in the nature of inquisitions, and the common-law rules of evidence regulating trial by jury ought not to be strenuously insisted on to the prejudice of the State. Substantial justice is all that can be required.
My final conclusion is that the evidence makes out that for taxing purposes Mr. Martin’s last residence was in London, Eng., and nowhere else. I have given perhaps more consideration to' this matter than its real importance required, but it concerns an issue-now frequently arising in this jurisdiction.
Decreed accordingly.
