213 F. 275 | D. Mass. | 1914
1. The plaintiff describes the defendant in her writ as a citizen of Massachusetts. In his petition' to remove he alleges that he is a citizen of Illinois. Upon this issue the burden is upon him. By consent of parties the evidence bearing upon it has been heard, and it is to be decided, by the court.
There is no dispute that the defendant was a citizen and resident of Massachusetts from 1908 until June 19, 1913; his residence being in Malden until April 22, 1913, after that in Boston. He left Boston on June 19, 1913, left Massachusetts on June 20th, and went to Winnetka, Ill., arriving there June 21st. He was born in Winnetka in 1886 and had lived there from the time of his birth up to 1899. He stayed in Winnetka in the house where he was born, then occupied as a residence by his brother William, until the end of June, when he started with his brother for Seattle. He ultimately continued this journey around the world, arriving again in the United ■States in March, 1914. From New York he went back to Winnetka, where he has since lived. He never returned to Boston after leaving it on June 19th, and has been in Massachusetts only on one day since that time, viz., March 23, 1914, for the purpose of testifying in a suit brought against him by a different plaintiff. He returned to Winnetka as soon as this testimony had been given.
Independently of this litigation there is not much reason to believe that Massachusetts would be more desirable to him as a residence than Illinois. He is unmarried, without a family, and had been occupying hired apartments. He had been receiving the income from a considerable estate held in trust for him by two Massachusetts residents, summoned as trustees in this case, but the trust property is situated chiefly in Chicago, and the trust expired by its terms on January 13, 1913, the day preceding the date of this writ. In anticipation of its expiration, his interest in the trust property, with other property belonging to him, was made over by him to new trustees upon another trust for his benefit, at or immediately after his departure from Boston in June, 1913, and it is on their behalf that an adverse claim is made in these proceedings. He had been carrying on a printing business in Everett, Mass.; but this plant was conveyed by him to the new trustees and was sold out in December, 1913. He has no other business interests in Massachusetts, so far as appears. His parents are
He has testified in a deposition taken April 4, 1914, in Illinois, under a commission from this court, that when he left Massachusetts it was his purpose not to return there to live; that when he arrived in Winnetka.he had no present intention of leaving there to go elsewhere; that his purpose to go on the journey which took him around the world was not acquired until the latter part of June, 1913; that he intended then and during his journey to return^ to- Winnetka to live; and that he went back there after his arrival 'in New York to continue to reside there as his home.
It appears by the deposition of Robert H. Howe, taken February 1, 1914, in Illinois, under a commission from the state court, as well as by the defendant’s own deposition, that the defendant told Howe on June 21 and on June 26, 1913, in Chicago, that he had come back to Illinois for good, was going to live in Winnetka, and had removed his place of residence from Boston to Winnetka for that purpose, and had left Boston with the purpose and intention of so removing his residence. The statements on June 26th were made in connection with his acknowledgment before Howe, as notary public, of a deed dated June 19, 1913, executed by him before he left Massachusetts, in which he was described as living in Boston. They are recited in Howe’s certificate of acknowledgment on the deed.
It further appears that, before he left Boston, the defendant told Dr. Lloyd to give up the apartments he had been occupying, remove his furniture, and'store it in Rhode Island; also, that these directions were carried into effect after his departure, the apartments being sublet and never again occupied by him.
Upon the grounds above stated, however, the motion to remand must be allowed.