1 Pow. Surr. 209 | N.Y. Sur. Ct. | 1892
—Section 2476 of the Code of Civil Procedure provides that the Surrogate’s Court of each county shall have-exclusive jurisdiction to take the proofs of wills, when the decedent was, at the time of his death, a resident of that county. Augustus Zerega died in the city of Hew York on December 23, 1888. The petition for the probate of his will, filed by his-widow, recited that the testator was “late of the County of Hew York;” that he “was, at or immediately prior to his death, a resident of the County of Hew York.” The paper was verified in the usual form. In January, 1889, all of the heirs and next of bin waived the service of a citation, and the execution of the will was proved by the subscribing witnesses. On February 11th it was admitted to probate, and letters testamentary were-issued to the widow, her eldest daughter, and two of her sons. On April 22, 1889, six sons and a grandson of the testator and a legatee named in the will united in a petition to the surrogate,
The word “resident,” like many others in the language, has varying shades of meaning. In its application to this proceeding it will be considered in its legal sense. In the Century Dictionary it is defined to be “a place where a man’s habitation is fixed Avithout any present intention of moving therefrom; a domicile.” And “domicile,” in the same work, is defined to be “a place Avhere a person has his home, or principal home, or where he has his family residence and personal place of business ; that residence from which there -is no present intention of moAÚng, or to which there is such intention to return, it depending upon the concurrence of "two elements: First, residence in the place, and, second, the intention of the person to make that place his home.” Judge Grier, in White v. Brown, 1 Wall. Jr, 217, says: “It may be correctly said that no one word is more nearly synonymous with the word ‘domicile’ than the word ‘home.’ ” These definitions reflect the concensus of opinion as expressed by the courts. Though a man may have two residences, he can have but one domicile. Douglas v. Mayor, etc.. 2 Duer, 110; Bell v. Pierce, 51 N. Y. 16. Augustus Zerega, for many years, had two residences. For some time after he came to this coxmtrv his domicile of choice was the city of UeAV York. From 1354 to 1863 his sole residence was in Westchester, and for that period,. certainly, Westchester was his domicile. In 1863 he purchased a house in East Thirty-fifth street, Avhere, for the last 25 years of his life, he maintained a residence in the city of Mew* York. In Dupuy v. Wurtz, 53 N. Y. 561, the court held that, to effect a change of domicile, there must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile; that residence alone had no effect, per se, though it might be most important as a ground from Avhich to infer intention; that length of residence Avould not alone effect a change, and
To sustain their contention, the petitioners rely mainly upon the oral and the written declarations of the testator, the fact that he paid taxes on bis personal property in Westchester County, and the assumption that he voted there. The oral statements extend over a period of 25 years, and for the most part are testified to by the petitioners. Their value as an aid in determining the question of domicile depends upon whether they have been accurately restated by the witnesses, and upon the credit to be given to their testimony. In this proceeding the hostility to Mr. Barnard of the petitioners who appeared as witnesses before the assistant was not disguised. The statements made in their affidavits, perhaps without due consideration, became extravagant and reckless under the cross-examination by Mr. Barnard, which was conducted in no amiable spirit, and it is apparent that at times bias and personal feeling caused them to exaggerate, if not to distort, the language of the testator. Nor can I trust the accuracy of their memories, covering a period of many years, in some instances, after the words were uttered. Still I have no doubt that the testator did, in words or in substance, after he had acquired a residence in New York, say that he “lived in Westchester;” that he had his “home” or
With written declarations the liability to a distortion of language is lessened, and if the paper is all in the handwriting of the party it is not open to suspicion. But the value of written
The written declarations relied upon by the petitioners are: First. The will of 1872 (executed nine years after the testator had acquired a residence in New York), in which he declared himself as of the town and County of Westchester. The paper was drafted by Mr. Barnard, who claims that from early in December, 1863, the testator had been domiciled in the house in East Thirty-fifth street. Mr. Barnard’s explanation for inserting a recital which he claims was untrue-, is, “if he gave the matter any thought,” that it was “to please the vanity of other1 members of the family, who thought themselves dignified by their father owning a country residence,” though he states he had no conference with them about the will. The explanation is a suggested possibility, and is unworthy of consideration. The paper was copied by the testator, and executed, and I see nothing to discredit the recital of his place of residence- in 1872 as equivalent to a domicile. Second. A paper written by testator in 1886, and delivered to Mr. Pelham Clinton, in which he sets forth the wholesomeness of his Westchester place, as evidenced by the fact that he, at 83, and his wife at 77, had lived there since 1854, with a large family of children and grandchildren, with but one death. But the avowed purpose of writing the article was for Mr. Clinton to procure its publication in the newspapers as a means of reaching a purchaser for the place. The statement was, to say the least, disingenuous, for it is shown that for 25 of the 35 years he had passed only five months in each year on his Westchester property; and, as the
In this connection I may refer to written declarations of the testator which tend to show the recognition by him of a domicile in New York. In September, 1876, he, as executor, propounded the will of his late partner, Mr. Bernier, for probate, and in the petition, duly verified, he described himself as of the city
In their affidavits the petitioners swore that they knew “of their own knowledge” that the decedent voted in the County of Westchester. The General Term seems" to have laid much stress on this as a fact abundantly proven. But when the affiants were produced for cross-examination in this proceeding, their positive statements were found to be based on the merest hearsay. John A. Zerega testified that the testator told him “twenty times—yes, a hundred times—that he had voted.” Another son, Alfred, stated that the testator drove with him to the polls. He thinks they started from his father’s house (probably the Westchester house), the testator stating that he was going to vote for his old friend Watson for supervisor, and that at the polls he saw his father talking with others. He stated the- time as the second election o-f President Lincoln. This would have been in 1864, and Alfred says that he himself then voted for Mr. Lincoln. The worthlessness o-f his testimony in respect of time is shown by the fact that the town meetings at which supervisors were elected were, by law, directed to be held beitween the 1st of February and the 1st of May in each year (Laws 1839, ch. 389, sec. 2), and this was the law in 1864. Alfred says that while in the carriage the testator said that he had never voted
Another fact which the petitioners claim is evidence that the testator’s stays in New York were annual visits, and that his
The effort of the petitioners to place the testator and his family in the attitude of boarders with Mr. and Mrs. Barnard has utterly failed. The allegations in their ex parte affidavits that he “was in the habit of hoarding in ¡New York for a part of the year;” that “he paid a certain sum monthly for his expenses ;” and (as testified by one petitioner) that he hoarded with Mrs. Barnard (which Mr. and Mrs. Barnard deny), and paid an extravagant price therefor—and other similar declarations, have been disproved hy the evidence. The testimony of Mrs. Barnard is that when the testator and his family moved into the Thirty-fifth street house, he directed her to take charge, enjoined her to be economical in its conduct, to bring him the hills for household expenses, which she did, and he gave her the money to pay them. This continued for two or three years, until he began to give checks to the order of Mr. Barnard, Mrs. Barnard not wishing to open a hank account. The checks were passed to Mr. Barnard’s credit in the hank in which he kept an account, and from time to time, he drew his own checks to meet the expenses of the household, including the wages of the servants (except the nurse employed by Mrs. Barnard), and many other disbursements for members of the testator’s family. The testator’s checks, as appears from the testimony, were given by him to his wife, who passed them over to Mrs. Barnard. The account hooks kept of the expenses of the household were each month audited hy the testator, and to each footing he added a memorandum in his own handwriting, “Entered.” This fact admits of no reasonable conclusion other than that he controlled the house, paid its expenses, and that to Mr. and Mrs. Barnard
The testimony of one of the petitioners that, until the will was read, he had always supposed the Thirty-fifth street house was Mrs. Barnard’s; that it wus always spoken of as her house,, and when he visited it, he believed it was by her invitation, and ■that he was her guest—is not worthy of consideration. Repute- and belief cannot establish a domicile, much less pass title to real estate. As refieeting on the credence to be given to the petitioners’ statements is the allegation in their ex parte affidavits, that during the testator’s stays in Mew York his residence in Westchester “was in charge of six servants.” One would'infer from this language that six of his house servante were left in the Westchester residence, whereas, for' several years after his family came to Mew York in Movember it was-closed, and left closed until they came back in June. A burglary on the premises caused the testator to have a room fitted up for two farm hands to occupy at night as a precaution against further depredations.
■ A brief statement of the testator’s career as bearing on the-probabilities of his having resumed his domicile in Mew York may he stated. He was a foreigner by birth, and no evidence of his naturalization has been found, after careful search, in the records of the courts of this city. According to his own statement, he did vote for a candidate for mayor of Mew York
(Note.—Aff’d by Gen. Term, without opinion, 76 Hun, 611.)
(Note as to law of domicil:)
Definition.— General Observation.— Leading Rule.— When a New Domicil is Acquired.—When a New Domicil is Not Acquired.—Degree of Proof.—Domicil of Ward.
Definition.
Domicil is defined as “that place where a man has his true fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.” (Raine’s Bouvier’s Law Dictionary, 600, citing 10 Mass. 188; 11 La. 175; 5 Metc. 187; 4 Barb. 505; Wall. Jr. 217; 9 Ired. 99; 1 Tex. 673; 13 Me. 255; 27 Miss. 704; 1 Bos. 673; 74 Ill. 312.)
General Observation.
There are three kinds of domicil: Domicil of origin, domicil hy choice!, and domicil by operation of law. (Smith v. Croom, 7 Flor. 151; Story’s Con. L. 48-9.)
_ This note whll be confined to a consideration of that subdivision of the second kind, viz., domicil by choice, which is
The leading1 New York case on the subject is Dupuy v. Wurtz, 53 N. Y. 561, in which it was held that to effect a change of domicil for the purposes of succession, there must not be only a change of residence, but an intention to abandon the former domicil and acquire another as the sole domicil. There must-he both residence in the alleged adopted domicil, and intention to adopt such place of residence as the sole domicil. Residence alone has no effect per so, 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— citing Hodgson v. DeBeauchesne, 12 Moore, P. C. Cases, 283, 328; Munro v. Munro, 7 Cl. & F. 877; Collier v. Rivas, 2 Curties, 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 follows: Change of residence alone, however long continued, does not effect a change of domicil as regulating the testamentary acts of the individual. It may be and is strong evidence of an intention to change the domicil. But unless in addition to residence there, is an intention to change the domicil, no change of domicil is made. And in Whicker v. Hume (7 H. L. 139), it is said the length of time is an ingredient of domicil. It is of little value if not united to intention, and is nothing if contradicted by intention.. And in Aikman v. Aikman (3 McQueen, 877), Lord Gran worth says, with great conciseness, that the rule of law is perfectly settled that every man’s domicil of origin is presumed to continue until he has acquired another sole domicil with the intention of abandoning his domicil of origin; that this change must be anima et facto, and the burden of proof unquestionably lies upon the party who asserts the change.
Leading Rule.
The leading rule is that, for the purposes of succession, every person must have a domicil somewhere, and can have but one
Whew a New Domicil is Acquired.
When a testator purchased an expensive house in New Haven, where he said he would live and die, and that he would never live in New York again except for a few days, and soon after-wards died, held, that his domicil was in New Haven, although he previously spent the winters in New York and the summers in New Haven, and was described in his will as of the city of New York. (Petersen v. Chemical Bank, 32 N. Y. 21, aff’g 27 How. Pr. 491.)
A testator who was in ill health left Brooklyn for Florida, stating that he could not stand the climate of the north, and that he never expected to return. Held,, that as he hadnold his house and furniture in Brooklyn, and closed up his business there, his domicil was in Florida, where he purchased a plantation, and where he died within two years subsequently, and his wife was entitled to one-third of his personal estate according to the law of Florida. (Hegeman v. Fox, 1 Red. 297; aff’d 31 Barb. 475.)
• A testator was held to be domiciled in New York, although he had described himself in his will and in a trust deed as of "the State of New Jersey, in which State he died, and had a residence, when he also had a residence in New York County, where he resided the greater portion of his time, and where he voted and held official positions, and that therefore a provision of his will was invalid under the laws of this State as violating the statute of perpetuities, although valid according to the laws of the State of New Jersey. (Mackenzie v. Mackenzie, 3 Misc. 200, 23 N. Y. Supp. 270.)
Intestate, a resident of New York City, having become mentally unsound, was removed to Oneida County in 1894, where he resided till his death in 1897, except for a short residence in Connecticut. A committee of his person and estate was appointed by the Supreme Court of Oneida County. Held, that decedent’s residence at his death was in Oneida County, and
Whebt a New Domicil is Not Acquieed.
I he word “resident” in the statute authorizing the reception of a foreign prohate in the case of a will made by a non-resident in this State, does not mean an actual, naked residence;, but a permanent and fixed abode, and is synonymous with the words “inhabitant” and “domicil.” (Isham v. Gibbons, 1 Brad. 69, in which case it appeared that testator, who had lived in and had a dwelling in New Jersey, came to New York to consult a physician, and rented a house where he died after two years’ occupancy. All the evidence showed that his residence in New York was merely for the1 convenience of seeing his physician, and that- he intended to return to New Jersey. Held, that his domicil was in New Jersey, and an exemplification of the probate of his wrill in that State should be recognized as valid here.
An intestate on her way from Scotland, her domicil of origin, to Canada West, died at Staten Island. Held, that as she had not lost her domicil of origin, mere intention to change not being sufficient without actual residence in the intended domicil, her estate should be distributed according to the law of Scotland. (Graham v. Public Administrator, 4 Brad. 127.)
A testator who was born in and resided in the city of New York till her marriage went with her husband to live in Philadelphia, where she resided with him for thirteen years, when they separated, the husband making his home in Philadelphia, and she, with three children, in New York, where she lived with them till a short time prior to her death, which occurred in Europe. She supported her children out of property left her, and which she bequeathed to them by her will. Held, that as since the passing of the Married Women’s Acts the rule that a woman acquires the domicil of her husband and changes it with him, no longer prevails, and she may acquire a separate domicil of her own, the domicil of the wife was in New York City, and not Philadelphia. (Matter of Florence, 27 St. Rep. 312, 54 Hun, 328, 7 N. Y. Supp. 578.
Declarations of a change of residence, or of intent to do so, are not sufficient to show such change; there must also be proof of facts showing an actual change. (Matter of Clarke, 40 St.
In Cruger v. Phelps, 21 Misc. 252, 47 N. Y. Supp. (81 St. Rep.) 61, it was held that although a testator had resided for many years in different parts of Europe, he did so on account of his wife’s and daughter’s health, and as he had in his will and many other documents described himself as of the city of Hew York, and as his property was almost entirely in this country, he had never lost his domicil here, and his will should he construed according to the laws of this State.
A testator came to Hew York City in March, 1894. His residence had been previously at Piermont, Rockland County. He boarded in Hew York City till 15th of March, 1895, at the expense of his wife, wdio would not tolerate his intemperate habits, but who was willing again to live with him if he reformed. As he did not do so, his wife 'brought an action for separation in April, 1895, at which time testator went to Hew Jersey and thence to Rockland County, where he died in October, 1895. Although a will, not holographic, made by him in April, 1895, described him as residing in the city of Hew York, his attorney who drew the will was not particularly instructed to so describe him, nor was testator’s attention particularly called thereto, although he compared the will with a rough draft thereof. On the other hand, two assignments of a trust fund executed by decedent at the same time, and two affidavits verified by testator, described testator as of Piermont, Hew York, the affidavits further alleging that Piermont was his permanent residence. Held, that testator’s residence for the purpose of jurisdiction on his estate, was Piermont, and not Hew York City. (Matter of Brant, 30 Misc. 14, 62 N. Y. Supp. [96 St. Rep.] 997, citing Dupuy v. Wurtz, 53 N. Y. 556; Hart v. Kip, 148 N. Y. 306, 42 N. E. 712; In re Stover, 4 Red. Sur. 82, 85.)
Although testatrix lived continuously in France and Switzerland and in traveling in Europe from 1865 till her death in Prance in 189V, except for one year (1878-9), when she came to Hew York, held,, that as she had not intentionally relinquished her residence in Hew York State, the court here had jurisdiction to admit her will (executed in accordance with the laws of this State) to probate, notwithstanding her lengthened residence abroad. (Matter of Cleveland, 28 Misc. 269, 59 N. Y. Supp. [93 St. Rep.] 985.)
It was held in Cruger v. Phelps, 21 Misc. 252, 47 N. Y. Supp. (81 St. Rep.) 61, that a change of domicil to a foreign country should only be established by the clearest'proof, especially when the property interests and the residence of the beneficiaries, etc., are in this State.
Domicil of a Ward.
When a testator domiciled in Connecticut directed that his daughter should, after his death and during hear minority, reside in Few York under the care of her guardian there, held, that although the daughter, after residing for some time in Few York with her guardian, died in Connecticut, where she was at school, her domicil was in Few York. (Matter of Howard, 52 Barb. 294.)
Although a mother, after the father’s death, may change her children’s domicil, she loses this right when she marries again. (Brown v. Lynch, 2 Brad. 214.)