135 N.Y.S. 81 | N.Y. App. Div. | 1912
This action was brought to settle certain claims made concerning the administration and distribution of the estate of Benjamin Hart, deceased. The judgment appealed from determined, among other things, that the will and codicils of the testator should be construed and effect given to them in accordance with the laws of the State of Hew York. Two separate appeals were taken from the judgment, one by the defendant Gruillemin and the other by the defendant Hiller, as executrix of Estelle Kitty Hart, deceased. On the argument several interesting- questions were discussed by the respective counsel; but the conclusion at which I have arrived renders it necessary to consider but one, viz., whether the testator, at the time of -his death, was domiciled in the State of Hew York. If he were, then the judgment is right and should be affirmed; otherwise it should be reversed and a new trial ordered.
The determination, of a person’s domicile is many times dif
It is the well-settled law, at least in this State, that for the purpose of succeeding to property rights a person (a) must have a domicile somewhere; (b) that he can have but one; (c) that the domicile of origin is presumed to continue until a new one is acquired (Dupuy v. Wurtz, 53 N. Y. 556), and (d) that the burden of proof rests upon the party alleging a change of domicile. (Matter of Newcomb, 192 N. Y. 238.)
In view of the importance, as well as the difficulty of determining with any degree of accuracy where a person was domiciled at a given time, certain fundamental rules have been established which, when the facts are ascertained, are to be applied. Thus, in Dupuy v. Wurtz (supra), “to effect a change of domicil for the purpose of succession there must be not only a change of residence, but an intention to abandon the former domicil and acquire another as the sole domicil. There must be 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 se, 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.”
And in Matter of Newcomb (supra), “The existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. The question is one of fact rather than law, and it frequently depends upon a variety of circumstances which differ as widely as the peculiarities of individuals. Less evidence is required to establish a change of domicile from one State to another than from one nation to another. In order to acquire a new domicile there must be a union of residence and intention: Residence without intention, or intention without
The English rule is even stronger than our own. Lord Cranworth in Moorhouse v. Lord (10 H. L. Cas. 272) said: “In order to acquire a new domicile * * * a man must intend quatenus in illo exuere patrian. * "" * It is not enough that you merely mean to take another house in some other place and that on account of your health or for some other reason you think it tolerably certain that you had better remain there all the days of your life. That does not signify; you do not lose your domicile of origin or your resumed domicile merely because you go to some other place that suits your health better, unless, indeed, you mean either on account of your health or for some other motive, to cease to be a Scotchman and become an Englishman or a Frenchman or a German. In that case if you give up everything you left behind you and establish yourself elsewhere, you may change your domicile.”
This rule was reiterated in Huntley v. Gaskell (1906 App. Cas. 56), where Lord Halsbury, after referring with approval to the opinion of Lord Cranworth in Moorhouse v. Lord (supra), said that one, in order to change his domicile, “must have a fixed intention or determination to strip himself of his nationality or, in other words, to renounce his birthright in the place of his original domicile. ”
Applying the foregoing rules to the undisputed facts in the case before us I am unable to see’ how one. can seriously question that the testator’s domicile at the time of his death was in New York. He was born about 1836 in Virginia and there remained until 1859, when, with his father and mother, he removed to 118 Madison avenue, New York city, where he lived until the death of his father and mother — the former occurring in 1862 and the latter in 1878. Shortly after the death of his mother he took up his residence at the Manhattan Club in the city of New York, remaining a member thereof until the time of his death. After taking up his residence in New York he was actively engaged in business until about 1869
These acts are inconsistent with an intention on his part to change his domicile. The fact that he resided in Paris most of the time from 1880, while important to be considered, certainly is not controlling, because domicile may exist without actual residence, but never without intention, (de Meli v. de Meli, 120 N. Y. 485.) One’s acts are always much more satisfactory as evidence of intention than his declarations, and written declarations are considered stronger than oral ones.
Considerable evidence was offered on the one side, of the testator’s declaration showing that he intended to retain his Hew
It would serve no useful purpose to review at length here the
Unless one’s domicile can be changed for him, without his intention, or in spite of his intention, he must be considered, at the time of his death, as domiciled in the State of New York.
If this view be correct, then it follows the judgment appealed from is right and should be affirmed, with separate bills of costs to each of the respondents filing briefs on this appeal, payable out of the estate.
Ingraham, P. J., Laughlin, Clarice and Miller, JJ., concurred.
Judgment affirmed, with separate bills of costs to each of the respondents filing briefs on this appeal, payable out of the estate.