1 Bradf. 69 | N.Y. Sur. Ct. | 1849
Thomas Gibbons died in the city of New-York, May, 16,1826. Has next of kin were his son William Gibbons, Hannah, the daughter of his deceased son Thomas Heyward Gibbons, and several grand-children, issue of Ms deceased daughter, Ann Heyward Trumbull. Balph H. Isham, the husband of one of the daughters of Mrs. Trumbull, now applies in right' of Ms wife for letters of administration on the estate of her deceased grandfather. The petition alleges that, at, or immediately previous to Ms death, Thomas Gibbons was an inhabitant of the county of New-York, that he died intestate, and at the time of Ms death, was possessed of personal property in the State of New-York.
William Gibbons appears in opposition to the application, and to disprove the allegation of intestacy, offers in evidence an exemplification of the probate of a will of-the decedent, granted by the Surrogate of the county of Essex, in the State of New Jersey, where he claims the decedent was domiciled at the time of his death.
. The situs of the property, of course, regulates jurisdiction as to the administration of the estate, which must he in the country in which possession is taken of it. (Preston vs. Lord Melville, 8 Cl. & F., 1.) Ho will of personalty can be recognized except such, as has been or may he admitted to probate, by the proper tribunals of this State. (Price vs. Dewhurst, 4 My. & Cr., 80; Bond vs. Graham, 1 Hare, 484; Logan vs. Fairlie, 2 Sim. & Stu., 284.) „ If a will he made and proved in a foreign country, disposing of personal property here, it must he proved where the assets are also. (Taunton vs. Flower, 3. P. Wm’s, 369.) The question has been much agitated, as to the effect to be given by the Court of Probate in the country where the assets are, to the decision of the Court of Probate of the foreign country where the testator was domiciled. Whatever difference of opinion may originally have existed, as to the extent of the application of the lex domicilii to this class of cases, it appears now to he well established both in England and America, that the law of the country in which the deceased was domiciled at the time of his death, not only decides the course of succession as to his moveables, but also regulates the decision as to what constitutes the last will, without regard to the place
Justice Story in his Conflict of Laws, declares it to be “ a well settled principle in the English Law, that a will of personal or moveable property, regularly made according to the forms and solemnities required by the law of the testator’s domicil, is sufficient to pass his personal or move
I have dwelt somewhat at length upon the authorities relating to this point of the case, for the purpose of illustrating the usual course of Courts of Probate in regard to foreign wills, entirely independent of any statutory regulations. Indeed, in England the adhesion to the law of domicil has been carried so far, that in cases of intestacy it is the custom to grant administration, in the very teeth of the statute, to the person entitled to the effects of the deceased according to the law of the place where he died domiciled. (In the Goods of Beggia, 1 Add., 340; Countess Da Cunha, 1 Hagg., 237; Stewart, 1 Curt., 904; Dormoy, 3 Hagg., 767; Rogerson, 2 Curt., 656; Johnston,
Indeed, having once attained the position that the law of the domicil of the deceased is to prevail, it is difficult to see how any Court of Probate could well adopt any other rule. The foreign decree of course does not govern progrio vigore, but is received as evidence, and is admitted not only ex comitate, but for reasons of convenience, as in general affording the most ready, safe and certain mode of ascertaining that law, which is to decide the validity of the instrument.
I have, by express provision of statute, exclusive jurisdiction to take the proof of the last will and testament of any deceased person, not an inhabitant of this State, dying in this county, and leaving assets herein. On the return of the citation to the widow, and next of kin, instead of an original will being produced, and witnesses examined, should an exemplification of the probate of a will by a Court of Probate of the State or country where the deceased was domiciled, be offered in evidence before me, would I not be bound to receive it as the highest evidence of a valid will ? Once having acquired jurisdiction of the subject matter, it seems to me clear that I should be governed by those universal rules, which in the application of the lex domicilm to testamentary cases, have been recognized by sound and enlightened jurists, and have been received with approbation by Courts of justice, especially in that country from which we derive our laws and system of jurisprudence.
¡Nor do I think, that the existing statutes of this State
The mistake was made at the "adoption of the Revised Statutes, of not effectually providing for the proof of foreign wills affecting real estate in this State. The Surrogate had jurisdiction to take the probate, but he was paralyzed in its exercise, by want of authority to issue a commission to examine foreign witnesses. The sixteenth section of the act of 1830 (Lems of 1830, oh., 320), was designed to cure this defect. “ There was no provision in the old statute,” say the revisers, “ nor is any contained in the new, relative to the proof of foreign wills. The above sections will remedy the omission in a manner, which, it is believed, will be entirely safe.” (3 R. 8, 2d ed.,p. 634.) By the term “ foreign wills,” it is manifest, the revisers intended only such wills, as, from the witnesses residing abroad, must be proved abroad; for the statute had made very distinct and exact provision for proof1 of wills before the Surrogate, where the witnesses resided here, in every case where real or personaljproperty in this State was devised or bequeathed, As to walls of real estate, of course they must be proved to have been executed according to our laws, and even as
As I have already shown, the jurisdiction in. such a case has always been with the Surrogate, having been conferred in the general authority to take proof of wills of non-inhabitants, where assets have been left, or have come in his county. The means of exercising it, however, were not at the first provided. In this connection, it is worthy of remark, that the entire course of legislation since the adoption of the ¡Revised Statutes, has looked rather to an enlargement than a diminution of the authority of the Surrogate. Thus, the provision which prohibited Surrogates, “ under pretext of incidental power or constructive authority, from exercising any jurisdiction whatever, not expressly given by some statute of this State,” was repealed in 1837. (.La/ws of 1837, p. 536, § 71.) Under the Cololonial Government, the Governors were Judges of the Prerogative Court, or Court of Probate, and the Surrogates were their deputies, acting, of courge, in conformity to the system prevailing in the Ecclesiastical Courts of England. By the Act of 16 March, 1778, Surrogates were recognized, and by the Act of 1801, they were expressly authorized to take proof of foreign wills, “ m the ma/rmer heretofore used;” an undoubted reference to the usage previously
Were this otherwise, still I am of opinion, that the statutes confer sufficient authority, to issue letters testamentary upon the production of a foreign decree of probate, in every case of a non-inhabitant, except one. The amendments of 1830, permit it in regard to wills made by persons “ residing out of this State,.” and executed according to the laws of the State or country in which they were made; and the 2d section of the Act of 1840, ch. 384, permits it in regard to wills executed in this State by persons residing out of the State. Wills executed abroad according to the lex domiciliA, but not according to the lex loci actus, are the only cases not in terms reached by the statutes.
In the present controversy, it is contended that Thomas Gibbons was a resident, at the time of his death, of the city of iSTew-Tork, and on the supposition that the matter is to be
The question is, as to the meaning of the term, “ not a resident of this State.” If Thomas Gibbons was “not a resident” of the State of ISTew-York, the foreign probate is evidence of his testacy. On examining all the statutes in relation to the proof of wills, it will be found that the term originally used to distinguish domestic from foreign testators, is “inhabitant.” The word “resident,” first crept into use, at the time the amendments, by the Act of 1830, were adopted. If resident does not mean the same as inhabitant, then the term is anomalous in the statute. It was ■probably used with more freedom, as synonimous with inhabitant, in consequence of the language of the Court, in the case of Roosevelt vs. Kellogg, 20 Johns. R., 208. That was a question arising under the insolvent act, which required the insolvent applying for a discharge, to be “ an inhabitant,” and it was held that a resident and an inhabitant were the same. In the matter of Wrigley, 4 Wendell, 602, a case also arising under the insolvent law, the Court held, that a foreigner who had resided here for seven years and then departed for England, uncertain whether he would return or not, lost his character of an inhabitant. In the same matter, 8 Wendell, 140, the Chancellor says, “ Inhabitancy and residence, do not mean precisely the same thing as domicil, when the latter term is applied to succession to jDersonal estate; but they mean a fixed and permanent abode, or dwelling-place for the time being, as contradistinguished from a mere temporary locality of existence.
In the matter of Thompson, 1 Wendell, 45, which came up under the non-resident debtor act, the Court said in regard to the debtor, “ The question is, where was his actual residence, not his domicil. The act is intended to give a remedy to creditors whose debtors cannot be served with process. The reason why this remedy is given against the property of debtors resident abroad, is equally applicable, whether the debtor is absent permanently or temporarily. Ho length of residence without the intention of remaining, constitutes domicil. A debtor, therefore, by residing abroad without declaring an intention to remain, might prevent his creditors from ever collecting their debts.”
In Frost vs. Brisbin, 19 Wendell, 11, the question arose under the act to abolish imprisonment for debt. It is there said, “ the domicil of a citizen may be in one State or territory, and his actual residence in another.” “ In Roosevelt vs. Kellogg, a resident of a place is said to be synonymous with an inhabitant, one that resides in a place. It may, I think, be doubted if this position is strictly accurate, as the latter term implies a more fixed and permanent abode than the former, and frequently imports many duties and privileges, which a mere resident could not claim or be subject to. Approved lexicographers, give a more fixed and definite character to the place of abode of the one, than the other.”
All of these cases, it will be observed, relate to statutes regulating the rights and remedies of creditors, and the decisions have generally leaned to a liberal construction of the law in favor of the creditor. One of them expressly, and all of them virtually decide, that actual residence without regard to the domicil, was within the contemplation of the particular statutes which were the subject of in
We thus see the large capacity of the words under discussion. An evidence of the changes attending the use of the term residence, cannot be better exemplified than in a sentence from the opinion of Justice Spencer, in Pliers vs. The United Insurance Company, 16 Johns. R., 133; “The fact,” he says, “ of a person residing in a country for a considerable period, leads to the conclusion, that he has adopted it as his residence.” The learned Judge, it is clear, first speaks of actual residence, and then infers from its continuance, permanent residence, using the expression as a synonym of domicil. So, also, in United States vs. The Penelope, 2 Peters. Ad. Dec., 438, it is said, “ an inhabitant or resident, is a person coming into a place with intention to establish his domicil or permanent residence, and in consequence, actually resides.” The term domicil seems to possess quite as much elasticity as residence; for though there can be but one principal domicil for cases of testacy or intestacy, yet there may be two or more domicils for different purposes, such as a domicil of allegiance, a political, matrimonial, comm ercial or forensic domicil. (Phillimore’s law of Dom., 19; Stephenson vs. Langston, 12 Hagg., 379.) A person may be “ an inhabitant for one purpose and not for another,” says Justice Parker, in the case already cited. “ It cannot, therefore, be too carefully recollected,” observes Phillimore, “ that domicil is distinguished by the various situations to which it is applied, that is to say, the circumstances which will be of force sufficient to impress the character of a domicil in one instance, will fail to do so in another;” and he adds, with just discrimination, “ It might perhaps have been more correct, to have
The extension of this remark to the words inhabitant and resident, will, I think, lead to the solution of the apparent difficulties, which have embarrassed the subject,, These expressions should be construed in connection with the matter to which they are applied. In statutes designed to give creditors prompt remedies against absent debtors, it is just to consider the word resident as meaning an actual resident merely, In provisions relating, however, to testamentary cases, which depend upon the law of domicil, it is equally rational to. construe the. term in consonance and harmony with the established rule of- law, rather than to indulge the supposition, that the Legislature intended, by a provision evidently designed to facilitate the. proof of foreign wills, to override the law of domicil. The section of the statute under consideration, authorizes the reception of a foreign probate, in the case of a will made by a nonresident in this State. If residence here, means only actual, naked residence, and not a permanent-and fixed abode, or domicil, it is clear that a testator may have been domiciled here, and have made his will here, even though he actually resided abroad, for aman may have his domicil in one place and his mere residence in another. The consequence of such an interpretation of the section, would be, that a testator domiciled here, and making his will here, but residing for the time elsewhere, could have his will proved here on the mere production of a foreign probate, whether the will did or did not conform to the law of this State. I cannot think an interpretation of this, section sound, which might lead to such results; but on the contrary, it would appear to be the most just and consistent construction, of the pro
With this view, it remains- to determine, whether Thomas Gibbons, at the time of his death, was domiciled in New-York, or in the State of New Jersey. It seems to be conceded, that before coming to this city, in 1824, his permanent residence was in New Jersey. The State of Georgia was his domicil of origin, but he had removed to New Jersey, where he had established himself, and had continued for-several years. Now, it is well settled, that a domicil once acquired, continues-until the party has acquired another cmimo et facto, by indicating and carrying, into effect the intention of abandoning his former domicil, and taking-another as his sole domicil. (Somerville vs. Somerville, 5 Vesey, 787.) The exact time Hr: Gibbons took up his residence in New Jersey, does not appear.; but I infer that it occurred, at least;..as early as 1813. In the language of Dr. Anderson, who foundhim “settled atElizabethtown, he had there the establishment of a gentleman, grounds around him, servants, carriages, &c.” In the year 1824, he came to the city of New-York, where he continued for about: two years, till his death, Hay 16,1826.
To show that he had abandoned his residence .or domicil in New Jersey, the applicant has given in evidence, that the decedent hired and lived in a house, at the corner of Beach and Hudson streets in this city, where he. died. This house was furnished, and was occupied by him and his servants alone. His name was in the city directory for the year 1825, and he ■ was rated, for and paid taxes the same .year -on §100,000, personal property. His remains were first deposited in a public vault in New-York, and afterward removed to Georgia. This is the substance of all the testimony on that side of the case except that which is documentary; and laying aside the fact of paying taxes, it established only the single fact of actual residence
1. Actual residence for two years ; 2. Payment of taxes; 3. Documentary declarations.
On the other side, it appears that the house where the decedent lived was hired by the year; that during the period he occupied it, it was sold at auction, and he had an opportunity, if desired, of holding it permanently, but his son, who hired it for him, was in the auction room at the time of sale, and told the purchaser he did not wish to buy the house for his father for a permanency, and his father only wished it for a time. It further appears, that on this house being taken, directions were given to have only part of it cleaned; cheap carpets were laid down without binding, the basement was not occupied, the parlors were plainly furnished, and in the second story there
In explanation of the purpose for which he came here, Dr. Anderson, his physician, testifies that he attended him at Elizabethtown a year before he left, that he came to Hew-York in consequence of his illness—an attack of paralysis—to have more efficient, and better medical attendance, and to secure the daily attendance of Dr. Post, a physician of eminence. With this statement of Dr. Anderson, other witnesses agree, and there is nothing to contradict it.
As to the probable period of his stay, and his intention of remaining in New-York, or returning to Hew Jersey, Dr. Anderson states that he does not remember as to any definite time he was to remain here. His impression, derived from conversation with the decedent, was that on his restoration to health, he would return to New Jersey. During the first part of his sickness, he held out to him expectations of improvement. To Samuel Dawes he called Elizabethtown his home, and spoke of returning there when he got better. To Eliza Coles, on going into the house in New-York, he said he did not know how long he should stay there; it might be for two or three months; that he would stay as long as his physicians should think proper. Again he told her that he came to New-York on account of his health, and to be near his medical attendants ; that he intended to return to Elizabethtown ; that he did not wish any furniture in New-York except what he wanted to use. To George L. Bennet he said, that as soon as he got well enough he was going back to Elizabeth-town ; that his design in coming here was to get near a good physician. Maria Van Cott, a servant in the house with him here, says, she recollects well he was going back
In regard to his dwelling at Elizabethtown, where he had previously lived, it appears that the establishment was kept up, after Mr. Gibbons’ departure, in the same manner and style as before. There were several servants there, a horse, wagon, and carriage ; and, in fact, little if any alteration occurred after his departure.
This appears to me to cover the material testimony on both sides, except that relating to the payment of taxes. The tax assessor states that the decedent was dissatisfied with the assessment, maintained that he had no property in Hew-York that was taxable, that he was here for the purpose of receiving medical attendance, and did not consider himself a resident. The assessor adds, that they assessed him as a resident, on the ground that the hiring and occupying a house made a personal residence. In De Bonneval vs. De Bonneval, already cited, the Court declared a disinclination to pay attention to the descriptions of the deceased in legal proceedings in France; or the exercise of political rights in that country; or his being registered as a voter in England. Being a housekeeper, he was registered there as a matter of course. The Court then continues : “ It is stated that he resisted with success the contribution to some of the French rates which a person resident in France was liable to, but the grounds are not stated, and it is too loose a reasoning, that because all French subjects are liable to such rates, and he successfully resisted them, therefore he was not domiciled in France. It must be shown that the question came regularly before the French tribunals, and he was held not to be a domiciled subject of France.” In the French Courts, the payment of a capitation tax has been held not to affect the question of domicil. (Phillimore, 13.) Rush, in Guier vs. O'Daniel, 1 Binney, 349, says, “ It is, I think, extremely doubtful, whether voting and paying taxes are in any case necessary to con
I should certainly not be justified, either in surrendering my judgment in the present case to that of the assessor of taxes, or in drawing an inference from the payment of taxes by the deceased, as to his residence here, when the payment was in fact resisted, in the first instance, and the tax was levied not only under a protest against its legality, but with a declaration on the part of the- deceased, quite sufficient to destroy any implication to be deduced from the payment. The assessor furnishes evidence, from a source entirely independent of the ordinary familiars of the deceased, that he came here for the purpose of his health, and did not esteem himself a resident.
This leaves the case, on the part of the applicant, entirely on the fact of naked residence, and the documentary descriptions by the deceased.
The naked residence in itself amounts to nothing, unaccompanied with evidence of the animus. But in view of the facts on the one side, that the house in New-York was hired from year to year, was partially and plainly furnished, and apparently only for a temporary purpose; while, on the other hand, his dwelling at Elizabethtown was kept up in the same style as previously, I should, without going further, be unable to draw any inference from the residence in New-York, of a change of domicil ; for under such circumstances, the residence in New-York wóuld not be inconsistent with the domicil in New Jersey.
The counsel for the applicant argued, that, even if the deceased came to New-York without any definite purpose of remaining here ; as time passed, and. hope of recovery was abandoned, the Yew Jersey domicil was abandoned. But there is a clear distinction between the surrender of a hope of ever being able to return to your home, and the absolute abandonment of your home. Many an invalid leaves his bones upon a foreign soil, who,
In the residence at blew-York, then, I can see nothing tending to show that the deceased had acquired a new domicil here. The declarations of the deceased in his will, and in the deed of manumission, furnish the only evidence
At this period of time, I should feel inclined to place little, if any, reliance upon the oral statements of the deceased, were they in opposition to the general tenor of the other facts in the case; but taking them in connection with the statement of the assessor, and that of the owner of the house, the temporary character of the establishment here, the removal of the decedent after being taken sick, and the preservation of his establishment in Hew Jersey, I am disposed to think his declarations made to his physician contemporaneously with the act of. coming to Hew-York,. and his conversations with others as to his object, furnish the most conclusive evidence that he came here for a special and temporary purpose. In three cases, the having a house in London, has been held in the English Courts to be perfectly consistent with a Scotch domicil. This fact existed in Somerville vs. Somerville, Warrender vs. Warrender, 2 Clarke & Fin., 520, and Munro vs. Munro, 7 Cl. & Fin., 881. An important criterion in all cases of double residence, has been the existence of a mansion house, against which a mere habitation or dwelling house elsewhere is held to be of little force. (Phill., 85.) Which is the stronger fact of the two, the possession and ownership of a dwelling house and establishment occupied for years, in Hew Jersey, or the renting and occupation of a house imperfectly fitted up, in Hew-York, from year to year ?— the one in the place of domicil, ready for a return of the owner, and the other ready to be surrendered at the shortest customary period ? In addition to this, the declarations of the deceased of his intention to return, on recovering his health, are so entirely consistent with the other features of the case, that I cannot discard them. Hor do I see how I can overturn the concentrating force of all the
The sum of this is :
1. That the law of the domicil, regulates the decision as to what constitutes the last will, without regard to the place of its actual execution.
2. That the foreign decree is generally received as evidence in proof of the foreign will'.
3. That the Surrogate has jurisdiction of foreign wills and the means of taking probate of them, independent of the special provisions of the Act of 1830.
4. That the recognition of the lex looi aetús, is confined to proof of wills taken under those special provisions.
5. That the words inhabitant and resident as used in the Revised Statutes, and the amendments of 1830 and 1840, are not to be construed in derogation of the law of domicil, but in harmony with it.
6. That if Thomas Gibbons, at the time of his death, was domiciled in the State of New Jersey, an exemplification of probate of his will from the proper Court in that State, should be received in evidence here.
And, finally, that the decedent was so domiciled, and probate of his will having been produced, I find that he did not die intestate, and must deny the application for letters of administration.
Before concluding, I think it proper to state, that I have not considered the documents offered in proof, relating to the ejectment suit tried in the Supreme Court of New Jersey. A verdict in an action brought for the purpose of trying the validity of a will, as to realty, is never admissible in an allegation in a testamentary cause respecting the same will in the Ecclesiastical Court. This point has been expressly decided. (Grindall vs. Grindall, 3 Hagg., 259.)