430 Pa. 33 | Pa. Super. Ct. | 1968
Lead Opinion
Opinion by
This appeal presents a narrow issue: was the “last family or principal residence” of Adam Loudenslager (decedent) in Montgomery County so as to vest the register of wills of that county with jurisdiction to probate his will?
For a number of years, decedent owned and resided in a property known as 2716 North Ruth Street, Philadelphia, wherein he had maintained an apartment above his business shop since approximately 1940 and which he continued to maintain until the date of his death on July 27,1966. Between August and November 1965, decedent stayed with his daughter, a Mrs. Gross, at 10406 Haldeman Avenue, Philadelphia, and, thereafter, stayed with the same daughter until the early part of May 1966 at an apartment house in Philadelphia. At that time, he returned to live at 2716 North Ruth Street, Philadelphia, and remained there until July 8, 1966. The record reveals beyond any question that, until July 8, 1966, decedent’s “family or principal residence” was in Philadelphia.
For a period of a year or more prior to his death, decedent, 83 years of age, had been suffering from various illnesses which had physically handicapped him to the extent that he required some help in dressing and taking care of himself. On July 8, 1966, several of decedent’s children took him to the home of one of his daughters, a Mrs. Frisch, who lived at 3596 Glen Way, Huntington Valley, Montgomery County, and he remained there until July 13, 1966, at which time he was removed to a nursing home in Philadelphia. He remained at that nursing home until July 16, 1966 when he was again taken to Mrs. Frisch’s home in Montgomery County.
On August 10, 1966, three of decedent’s children probated a will, dated July 13, 1966, in Montgomery County and the register of wills of that county issued letters testamentary to these children who were nominated in such will as executors. Approximately four months later, Mrs. O’Brien and Mrs. Rothsching, two children excluded under decedent’s will (contestants), filed a petition for an appeal from the probate of the will alleging (a) lack of testamentary capacity, (b) undue influence, and (c) that decedent’s residence at the time of death was in Philadelphia and not Montgomery County. The latter allegation was the only one considered in the court below, and, on this appeal, is the sole question before us.
After hearing, the Orphans’ Court of Montgomery County found that decedent had intended to abandon his Philadelphia domicile, to make Montgomery County his new domicile and that Montgomery County at the time of decedent’s death was his “last family and principal residence.” Exceptions to this decree having been dismissed, the court entered the final decree from which this appeal was taken.
Initially, the court below concluded that, since the proceeding was an appeal from the probate of a will, it was the burden of the contestants to produce evidence to set aside the probate decree.
The sole place of probate of a will of a Pennsylvania resident is mandated by statute to be the county wherein such person had “his last family or principal residence” (Act of June 28, 1951, P. L. 638, §301, 20 P.S. §1840.301) at the time of his death. Under our case law, “residence”, in the statutory sense, is synonymous with “domicile” (Obici Estate, 373 Pa. 567, 570, 571, 97 A. 2d 49 (1953)). “The domicile of a person is the place where he has voluntarily fixed his habitation with a present intention to make it either his permanent home or his home for the indefinite future:”: Publicker Estate, 385 Pa. 403, 405, 123 A. 2d 655 (1958). See also: Dorrance's Estate, 309 Pa. 151, 172, 163 A. 303 (1932). We further said in Publicher, supra: “To effect a change of domicile there must be a concurrence of the following factors: (1) physical
In determining a person’s domicile, the language of the United States Supreme Court, almost a century ago in Mitchell v. United States, 21 Wallace 350, is most appropriate: “A domicile once acquired is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged the burden of proving it rests upon the person making the allegation. . . . Mere absence from a fixed home, however long continued, cannot work the change [of domicile]. There must be the animus to change the prior domicile for another. Until the new one is acquired the old one remains. These principles are axiomatic in the law upon the subject.” (p. 353). See also: Price v. Price, 156 Pa. 617, 625-627, 27 A. 291 (1893); Dorrance’s Estate, supra; Pusey’s Estate, 321 Pa. 248, 265, 184 A. 844 (1936); Obici Estate, supra.
In the case at bar, it is not disputed—indeed, it could not be—that up until July 8, 1966—19 days prior to his death—the domicile of decedent was in Philadelphia County which had been his domicile for many, many years. The question at issue is whether the decedent had changed his domicile to Montgomery County and the burden of proving that such a change of domicile had been effected was not upon the contestants, as the court below held, but upon the proponents of the probate of the will: Price v. Price, supra, pp. 625-627; Barclay’s Estate, 259 Pa. 401, 404, 405, 103 A. 274 (1918); Dorrance’s Estate, supra, 172; Pusey’s Estate, supra, 265, 266 (1936); Obici Estate, supra, pp. 571, 572; Ritz Estate, 8 Pa. D. & C. 2d 115 (1956). It was the duty of the proponents of the probate of
Bearing in mind the burden placed upon the proponents and that less evidence is required to prove a continuance of a domicile than to establish a new domicile (Pusey’s Estate, supra, 265), we turn to an examination of the instant record.
Several facts have been conclusively shown: (1) decedent died in a Philadelphia hospital; (2) decedent’s death certificate indicates that, in answer to the question “Where did deceased actually live?”, the response was “Phila.” County, “Penna.” State; (3) this response and information was given by Mrs. Frisch at whose home in Montgomery County it was claimed decedent had established his domicile; (4) at the time decedent was taken from his Philadelphia residence to
In reaching its conclusion that decedent intended to move to Montgomery County and that he intended to remain there without any fixed or certain purpose to return to his Philadelphia address, the court relied principally upon the testimony of a Mrs. Ada Kucher, characterized by the court below as “the only disinterested witness”. Mrs. Kucher was a next-door neighbor of decedent in Philadelphia and had known him for thirty years. The court below, having had the opportunity to hear and observe this witness, determined that she was credible and that imprimatur of credibility we accept. The particular portion of Mrs. Kucher’s testimony upon which the court relied was as follows: “Q. The topic of discussion of going with
According to Mrs. Kucher’s testimony full credibility, we fail to perceive from our examination thereof the requisite expressed intent on the part of decedent to make Mrs. Frisch’s home in Montgomery County either his permanent home or his home for the indefinite future. Unlike the court below, we fail to find in Mrs. Kucher’s testimony proof of an intent on the part of decedent to “stay for the rest of his days” in Montgomery County.
Our reading of Mrs. Kucher’s testimony and the testimony of all the other witnesses produced by the proponents of this will does not reveal the necessary animus to establish a change of domicile. On the contrary, the record portrays decedent in the early part
The court below erred in placing the burden of proof upon the contestants and the record does not sustain a finding of a change of domicile by decedent.
Decree reversed. Appellees to pay costs.
On July 13, 1966, decedent made a will and, immediately thereafter, was placed in the nursing home. Upon his release from
The court below relied on Szmahl’s Estate, 335 Pa. 89, 6 A. 3d 267 (1939), Mader Will, 16 Fiduciary Rep. 81, 84 (1965) and
Such evidence, when contradicted by other facts and circumstances, is of little weight: Dalrymyle’s Estate, 215 Pa. 367, 371, 64 A. 554 (1906) ; Winsor’s Estate, 264 Pa. 552, 107 A. 888 (1919) ; Dorrancc’s Estate, supra, 169, 170; Swartz’s Estate, 26 Pa. D. & C. 181, 185 (1936); “Penna. Will Drafting”, Smith & Aker, §11.1, pp. 206, 207.
Dissenting Opinion
Dissenting Opinion by
Although the majority correctly states that the only question before us is the county of decedent’s domicile, it fails to note that the parties have arrived at an understanding
However, there has been no motion made to quash this appeal. In the absence of such a motion (which, had it been made, should have been granted), we still may quash this appeal on our own motion. See Steel v. Levy, 282 Pa. 338, 127 Atl. 766 (1925); Kennedy v. Banbury Equipment Corp., 202 Pa. Superior Ct. 242, 195 A. 2d 832 (1963). As a judicial system already overburdened with litigation, we should not encourage piecemeal appeals and I thus believe that this appeal should be quashed.
Turning to the merits of this controversy, the majority opinion suffers from a failure to distinguish between two subtle, but nevertheless distinct, aspects of the problem generally classified under the rubric “burden of proof.” Those two aspects are the burden of first producing evidence and the burden of persuasion.
- In’ the context of this case, we should be initially concerned with what impact the probate of decedent’s will by the register has upon the burden of first producing evidence. Although the majority seems to distinguish between the burden of first producing evidence when the issue is the validity of the will and the burden of first production when the issue is the jurisdiction of the register, our cases support no such distinction. Stemming primarily from the doctrine that the grant of letters of administration is a judicial act,
“The proper practice upon appeals from the probate of a will is to offer the register’s record of probate, including the will. Then the burden of coming
Once the burden of first production has been met (I believe that the evidence offered by the appellants was sufficient to meet this burden), the court must then allocate the burden of persuasion. If one envisions the evidentiary scales equally in balance, the burden of persuasion would dictate which party prevails—and that party would be the party on whose shoulders the burden of persuasion does not fall. Placed in context, which party here had the burden of persuading the trial court that decedent died domiciled in Montgomery County? I agree with the majority that the appellees had this burden, and therefore also conclude that the court below erroneously placed the burden of persuasion upon the appellants.
Having decided that the court below erroneously allocated the burden of persuasion, the issue remains ias to the proper disposition of this litigation. It is here that I must dissent. There is testimony in this record by two of the appellees, both daughters of the decedent, that he intended to make Montgomery Coun
The briefs of both parties indicate that they wished to have the jurisdictional question first determined.
The judge below was obviously not aware of the parties’ understanding for, in the last line of his opinion, he states: “The appeal from probate as it relates to domicile is therefore dismissed, and this matter shall be scheduled at a time to be set to proceed with other grounds of appeal.”
gee generally McCormick, Evidence §§306-07 (1954) ; Wig-more, Evidence §§2485-87 (1940). Professor Wigmore uses the perhaps more apt term the “risk of non-pursuasion” rather than the burden of persuasion.
See West v. Young, 332 Pa. 248, 251, 2 A. 2d 745, 746 (1938); Erie Indemnity Co. v. Greene, 14 Pa. D. & C. 2d 301, 310 (O.P. Dauphin Cty. 1957).