127 Va. 516 | Va. | 1920
delivered the opinion of the court.
In 1911, Mrs. Ellen Stuart Bentley was living in the city of Richmond, Va. During that year she obtained a divorce from her husband, Vernon Bentley, and removed to Los Angeles, California, where she subsequently married, one Vance. In the latter part of 1915, or early in 1916, Mrs. Vance returned to Richmond, and took a room at the Jefferson Hotel. She occupied this room until her death, which took place some time in June of that year. It does not appear whether Mrs. Vance, at the time of her return, was a widow, or was separated from her husband, or had returned' for her health, or on business. On these points and on all other points that would afford an explanation of her reappearance in Richmond, or would give any clue as to her plans and purposes in connection with her return, the record is entirely silent.
At the time of her death, Mrs. Vance had a deposit of about $2,500 in one of the Richmond banks. During her lifetime she derived an income from a life estate in trust in the city of New York. The corpus of this estate was valued at $850,000, and consisted entirely of stocks and bonds. Under the trust agreement this property, at the death of Mrs. Vance, passed to her brother and sister. This brother lived in New York, and the sister in Atlanta with the mother.
At the request of the distributees, Robert H. Talley quaJi
The court refused to exonerate the administrator entirely from the payment of the assessment, or to cause the same to be removed from the records of the commissioner of revenue and thé treasurer of the city of Richmond, but relieved him from taxes assessed for the year 1917, on the ground that the interest of Mrs. Vance in the property terminated iri the year 1916. Further the court proceeded in its order to assess against “the said Robert H. Talley and the New York Life Insurance and Trust Company, administrators of the estate of Ellen Stuart Vance, deceased, for the year 1916, a tax upon $350,00 value of intangible personal property, at the rate of sixty-five cents per $100.00, together with interest thereon from December 1, 1916, until paid, and to direct the treasurer of the city of Richmond to collect this tax and interest and penalty.” To this order of the Hustings Court of the city of Richmond, a writ of error was allowed and a supersedeas awarded by one of the judges of this court.
The'fact that Mrs. Vance was domiciled in Richmond at the time of her death is essential to the Commonwealth’s case. It is the foundation upon which the right to make an assessment reposes. No domicile, no right of assessment.
To the same effect is Lindsay v. Murphy, 76 Va. 428, in which Burks, J., delivering the opinion of the court, said:
*521 “To constitute a new domicile, two things must concur— first, residence in the new locality; second, the intention to remain there. Until the new domicile is acquired, the old one remains, and whenever the change of domicile is alleged the burden rests upon the party alleging it.” See also 9 R. C. L. 557. “Every one is deemed to have a domicile somewhere, and in general one domicile is not lost until another is gained.” 9 R. C. L. 558.
“Neither presence alone, no.r intention alone, will suffice to create a domicile of choice. Both must concur, and at the very moment they do concur, the domicile is created. As it is sometimes expressed, the factum (presence) and the animus (intention) must unite. Therefore no change of locality alone (there being no change of intent or vice versa) will effect an alteration of the domicile of choice, which remains where it was until the factum and the animus again unite.” Minor Conflict of Laws, sec. 59.
“To effect a change of domicile, there must be a voluntary change of residence, the residence at the place chosen for the new domicile must be actual; and to the fact of residence, must be added the animus manendi. The mere relinquishment of actual residence is no abandonment of the domicile, if there is no intention to ehang*e it; as where a man leaves his home for temporary purposes, as for a voyage, for foreign travel, for health or pleasure, or business of a, temporary nature. In all such cases there is an animus reveriendi.” 9 R. C. L. 558.
“When a man leaves a State with no settled purpose of acquiring a residence elsewhere, but with only a conditional purpose of doing so, he does not lose the former domicile, so long as the intention remains conditional. Id., p. 554. According to some authority, even if a man definitely resolves to change his domicile provided he can find a new domicile to his lilting, the old domicile is not lost and the new domicile acquired, merely by a new residence or even*522 by several residences in succession, in the course of his quest, when the residence at any given stop in his progression is not accompanied by the animus manendi.
“When a person starts on an extended journey, intending never to return to the domicile he is leaving, and to establish a new domicile elsewhere, he does not lose the one left until the new one has been actually established, and while in transit he retains the former domicile. 9 R. C. L. 553.
“When one has changed his place of abode, and the question arises whether he intended to change his domicile, all his acts and conduct which fairly indicate his purpose in that particular, within a reasonable time before and after the event, may be put in evidence. This is evidence of his intention and is competent. The ■ declarations as to domicile by the party whose domicile is in. controversy are also competent.” 9 R. C. L. 557.
“Mere residence elsewhere will not rebut the presumption as to continuance of domicile, unless it is inconsistent with an intent to return to the original domicile.” 14 Cyc., pp. 860-861.
“To effect an abandonment of one’s domicile, there must be the choice of a new domicile, actual residence in the place
So much for the law of domicile, the presumption of its continuance, and the requirements for its establishment.
It has been pointed out that at the very threshold of this case the court was confronted with the inquiry: “Was Mrs. Vance' domiciled in Richmond at the time of her death?” The right of the State to assess and collect the tax in question reposes upon the affirmative determination of this inquiry.
It will be perceived that this testimony establishes in the most positive and unequivocal fashion, not only that Mrs. Bentley was granted her divorce in 1911, but that she thereupon removed from the city of Richmond and State of Virginia, and took up her domicile and residence in Los Angeles, California, where she married Vance. From that time forward, until she acquired a new domicile, she must be regarded as domiciled in California. In December, 1915, or early in January, 1916, Mrs. Vance reappeared in Richmond. She did not buy a home in the city, but took a room at the Jefferson Hotel, for what term does not appear. During the six months preceding her death, Mrs. Vance gave no intimation of her intent in returning to Richmond, or of her plans for the future. The witness, Talley, talked with her after her return, but she did not indicate whether she expected or not to make Richmond her permanent home. Nor did the witness have any knowledge on this subject otherwise derived.
Do these scanty facts justify the conclusion that Mrs. Vance had abandoned her California domicile and -established a new domicile in this State? Possibly such was her intention, but. in seeking to derive her intent from the inconclusive evidence afforded we see through a glass darkly and no positive conclusion can be reached. If it is suggested that her conduct is not inconsistent with an intent to establish a new domicile in Virginia, and abandon the old one, the reply is obvious that while not inconsistent with that intent, this conduct does not establish such intent. Mrs. Vance was a wealthy woman, well able to travel from place
In the opinion of this court, for the reasons given, the Hustings Court of the city of Richmond erred in holding that Mrs. Ellen Stuart Vance was domiciled' in Virginia at the time of her death, and the order making the assessment of taxes, complained of, must be reversed.
Reversed.