159 N.Y.S. 619 | N.Y. Sur. Ct. | 1916
This is a proceeding certified to the surrogate under the Transfer Tax Law in order that he may determine the last legal residence of Edwin Norton, deceased. The State Comptroller contends that the decedent died a resident of this State, while the executors contend that he died a resident of the island of Bermuda, British territory. Under our Tax Law, if the decedent at the time of his death was a resident of -this State, all his personal property, wherever situated, would be subject to the transfer tax of this State, while if he died a resident of Bermuda the only part of his estate which would be taxable under the laws of this State would! he his tangible personal property actually within this State. The question of last residence must therefore be determined by the surrogate before a tax can he assessed upon the estate. This matter involves the meaning of the term “ residence ” in the Transfer Tax Law.
In Matter of Martin (94 Misc. Rep. 81) I endeavored to
The term “ domicile,” taken strictly, means at the present day international domicile. The term “ domestic domicile ” is infelicitous, to say the least. Domicile simpliciter, by reason of its inherent vagueness, is at present more accurately expressed by a circumlocution. Most jurists refer a question offered for solution to the “ principle of domicile ” rather than to “ domicile.” See Bentwich Law of Domicile passim, followed in Matter of Grant (83 Misc. Rep. 261). It has been said that the definition of “ domicile ” is a matter of great difficulty, and also that there is no precise definition of domicile. (Cockrell v. Cockrell, 25 L. J. Ch. 730.) Westlake so states, which I think is conclusive. But the publicist Dicey at one period dissented from this statement and affirmed that “ the elements of domicile are. residence and animus manendi.” It is extremely doubtful if this simple definition is adequate to very complex conditions of fact. It is often important that a person shall have a defined juristic domicile for purposes of taxation, succession, jurisdiction, etc., but above all for international purposes. But usually commorancy or residence suffices. In reference to some of these purposes Mr. Dicey’s simpler definition does not respond to legal requirements. He has, however, given us a later and more complex definition generally acquiesced in in common-law countries. I had occasion to quote Mr. Dicey’s larger definition of domicile in Matter of Robitaille (78 Misc. Rep. 112), and I need not repeat it, but even that more comprehensive definition affords only a partial solution of the principle of domicile when applied to complicated cases. When we reflect on the principle of domicile it is evident that a man’s domicile, in order to be effective, must be a domicile everywhere recognized or at least recognized as fixing a status in the various jurisdictions or sovereignties to which he resorts from time to time. Otherwise the recog
In Roman law " domicilium " from domus, a home, was employed to denote the ordinary jurisdiction to which a person was subject. It was later conceded by the civilians that a person might have as many domiciles as he had residences possessing some degree of permanence. It was only in modern Roman law that domicile came to have a fixed significance associated with a particular locality. Indeed, it may be said, I think, that it was the conflict of laws peculiar to complex modem political conditions that gave rise to the present conception of domicile. When domicile can be treated as the equivalent of nationality, there is no difficulty at all about the term. But in this country and in the- British Empire, or indeed in any highly organized federal state, such a simple resolution of so complex a matter is impossible. It is, therefore, greatly to be doubted that as a solution of the true incidence of taxation we are much benefited by the substitution of “ domicile ” for residence as the supreme test of a liability to tax. Commorancy is the logical basis of taxation.
“ Domicile ” is not a term of the common law strictissimi juris. It is a term of public law, and without reference to public law it has no sensible significance. We are all familiar with the rule that common-law terms find their authority and meaning only in the common- law itself. Such terms form in bulk the terminology of the common law itself. (Despard v. Churchill, 53 N. Y. 192, 199; Perkins v. Smith, 116 id. 441; Michaels v. Fishel, 169 id. 381; Waters & Co. v. Gerard, 189 id. 302, 309.)
As I stated before, I had concluded in several cases that domicile was not the precise equivalent of residence, or commorancy, in the Transfer Tax Law, although I conceded that the principle of domicile was highly illustrative of both a resi
With these latest decisions of our own courts only in view I will proceed to the facts disclosed to me in this matter now here for adjudication, premising the transfer tax appraiser, who was designated by this court to appraise the estate, took the testimony of witnesses produced on behalf of the estate to prove that the decedent had his last legal residence in Bermuda. Several affidavits and copies of letters and legal documents were also submitted to the appraiser. All the parties to the proceeding have stipulated that the testimony taken before such appraiser, including the affidavits submitted to him, may be considered 'by me in determining the question of decedent’s last
The testimony taken and the affidavits and documents so submitted show that the decedent’s domicile of origin was in Illinois, and that he actually resided in Illinois until 1901, when he sold his dwelling house in Illinois and came to New York City. He lodged at hotels in New York City from 1901 until 1904. In the latter year he purchased a house on Riverside Drive, in this city, furnished it as a home and occupied it as a residence. In December, 1904, he purchased another house at Lake Placid, N. Y., and furnished it as a summer home. From 1904 to 1910 he owned both the house in New York Oily and the summer house at Lake Placid, and during that period he did not own a dwelling house in any other State. In various legal documents executed by decedent between the years 1904 and 1910 he described himself as of New York City. He was assessed on personal property in this city and paid the tax in 1909 and 1910. In January, 1910, he went to Bermuda, and on May 10, 1910, he purchased a dwelling house and several acres of land there. He sold his Riverside Drive house during the same year. During 1910 and 1911 the Lake Placid house was leased, and in 1912 it was sold. He remained in Bermuda practically the entire year, 1911. During 1912 he made several trips to the Hnited States for business purposes, but he did not remain in this State for more than a few days. He spent the summer of 1913 in Europe and returned to Bermuda in the autumn. In June, 1914, he told his son-in-law that his wife wished to have some place in New York City to which she could take her two servant maids when traveling through the city instead of stopping at hotels, and thereupon an apartment at No. 640 West End avenue was rented for a term of three years. The lease was signed by Mrs. Norton and by the decedent, the signature of the latter having been made
On August 12, 1914, the decedent applied for a passport when contemplating a trip to Europe for the purpose of aiding his wife to return to the United States, and in his application he stated that he was domiciled in the United States, and that his permanent residence was in Hew York City. This statement does not, however, coincide with the fact. In September, 1914, after Mrs. Horton had returned from Europe, she removed her personal belongings from the Biltmore Hotel to the apartment at 640 West End avenue. The decedent traveled in connection with his business from September 10 until October 28, 1914. On the latter date he returned to this city and went to his wife’s apartment at 640 West End avenue. He made arrangements for going to Bermuda in the early part of December following, but he was ill at that time and he died at the apartment 640 West End avenue on December 31, 1914.
In 1913 the decedent had purchased property in Bermuda, and in the deed he described himself as “ of Bermuda.” He frequently thereafter referred to Bermuda as his residence. In 1911 he was assessed for personal property in this city and made affidavit stating that he had ceased to be a resident of Hew York and had been for a year prior to 1911 a legal resident of Bermuda. In various applications for letters patent made by him during the years 1913 and 1914 he stated that he was a resident of Bermuda,- although on September 10, 1914, he gave Hew York as his address in application for a Canadian patent. In- a postscript to a-letter dated August 10, 1914, after the outbreak of the European war, he stated: “ America looks pretty good to me for the future.” From the foregoing facts it would appear that the decedent, acquired a residence in New York about the year 1901, and that he resided in this State up to the time he sold his Riverside Drive home in 1910. The purchase of a home in Bermuda after he had sold his summer
Such are the principal facts. If my solution were permitted to turn upon “ commorancy,” or the last legal “ residence ” of this decedent, I should find that it was Bermuda, and that even the conflicting statements of decedent, made for national purposes, should not be allowed to estop those succeeding to his estate and now vested with it by right of succession from showing the real fact as to decedent’s last residence. But, in view of the late decisions cited above, I feel constrained to find that the last domicile of decedent shown by the evidence was in New York.- It appears that the decedent in or about 1904 acquired a “ domicile ” of choice in New York State. This being so, the onus of showing a change of such domicile is on those asserting it. (Matter of Wise, 84 Misc. Rep. 663.) This burden has not Been sustained, and therefore
Decreed accordingly.