White v. Stowell

| Mass. | Mar 5, 1918

Carroll, J.

This is an appeal from a decree allowing the will of Henry W. Wellington, alleged to have been a resident of Boston on July 29, 1915, the date of his death. The appellants contend that the testator was a resident of New York. In the Supreme Judicial Court the single justice found that the domicil of the testator was -in Boston and affirmed the decree of the Probate Court.

Henry W. Wellington was born in Boston in 1875; after his marriage in 1902 he lived in Hingham and in Boston; and in 1914 his domicil was in Boston where he occupied an apartment which he had leased for two years beginning September 1, 1913. Early in the year 1914, it was discovered he had misappropriated a large amount of money belonging to corporations in which he was an officer, and he was forced to sever his connection with them. He was then without employment. On March 31 or April 1 he left Boston for New York. Mrs. Wellington, hoping to secure employment for her husband, went to California, where she had friends, and remained there until May, 1914, when she joined her husband in Washington in the District of Columbia. Accompanied by a daughter of Mrs. Wellington by a former marriage Mr. and Mrs. Wellington went to New York; they were registered by Mr. Wellington at the Brevoort Hotel as of New York, and remained there a week or ten days. In June, 1914, they hired a furnished apartment' in New York from friends of Mrs. Wellington, and occupied it until September, 1914. For a time Wellington was ill in a hospital in New York. After leaving it, he went to Gloucester in this Commonwealth; but he returned to New York before Christmas, and in 1915 leased an unfurnished apartment for eight months, which he and Mrs. Wellington occupied until he committed suicide, July 29,1915. After his departure from Boston he was not engaged in any business and was unsuccessful in securing employment either in New York or elsewhere.

The question of a person’s domicil is mainly a question of fact; a domicil once acquired is not lost until a new one is obtained. Mere temporary absence does not change it, and personal presence in a place, even for a protracted period, does not of necessity fix the domicil in that place. While actual residence is a circumstance tending to establish the place of domicil at the place of residence, it is not conclusive. Otis v. Boston, 12 Cush. 44. Collester v. Hailey, 6 Gray, 517. Perkins v. Davis, 109 Mass. 239" court="Mass." date_filed="1872-01-15" href="https://app.midpage.ai/document/perkins-v-davis-6416783?utm_source=webapp" opinion_id="6416783">109 Mass. 239. Olivieri v. Atkinson, 168 Mass. 28" court="Mass." date_filed="1897-02-26" href="https://app.midpage.ai/document/olivieri-v-atkinson-6425891?utm_source=webapp" opinion_id="6425891">168 Mass. 28. Palmer v. Hampden, 182 Mass. 511" court="Mass." date_filed="1903-01-10" href="https://app.midpage.ai/document/inhabitants-of-palmer-v-inhabitants-of-hampden-6428088?utm_source=webapp" opinion_id="6428088">182 Mass. 511. “A person cannot be said to lose his domicil or residence by leaving it with an uncertain, indefinite, half formed purpose to take up his residence elsewhere. . . . Until his purpose to remain had become fixed, he could not be said to have abandoned his former residence.” Worcester v. Wilbraham, 13 Gray, 586, 590. See Sears v. Boston, 1 Met. 250.

In 1914 the testator’s domicil was in Boston. That domicil remained until a new one was actually acquired. When he left Boston and took up his residence in New York, if it was his intention to reside there and make it his home, without any intention of returning to Boston, then his domicil was in New York at the time of his death; but, if his absence was temporary, if he was seeking employment and looking for a place to establish himself where he could support his family, without any fixed and settled intention of residing in New York, or making it his home, then he did not acquire a new domicil and the domicil of his origin remained.

There was some evidence indicating an intention to give up-his home and domicil in Boston — his letters, his resignation from the Harvard and Engineers clubs of Boston, his registering at the Brevoort Hotel and stating that his residence was in New York, the sending of his furniture to Ardmore in Pennsylvania, and his hiring apartments in New York — these facts together with the additional circumstances, standing by themselves, would seem to indicate a permanent change of residence, but they are not conclusive.

There was other evidence of controlling importance which makes it clear that he had not given up Boston as his permanent residence, that he was hoping or expecting to return to it as soon as he could so arrange his affairs, and that his absence was only temporary. When he was sick in the hospital, at the request of Mrs. Wellington, a business acquaintance was endeavoring to obtain for her husband a position in Boston. In June, 1915, six weeks before he died, he said to his aunt, “I rather like New York for business very well, but May [his wife] prefers Boston,” and “he was undecided.” In July, 1915, he said "he thought he was going to get some business, . . . if he did he would leave New York and he might go West, and he might come back to Boston.” On November 24, 1914, he made application to the assessors of Boston for an abatement of his personal tax of $10,000, which was reduced to $600. In April or March, 1914, he wrote his cousin that on account of business reverses he was away for a little while to look up some business, and in May of the same year he wrote her saying “on his return to Boston, which he hoped would be in a short time. . . .” He told a boyhood and college friend in 1914 and 1915, “that he had never definitely given up his residence in Massachusetts, that he had furniture there and that he was living around until he settled on something that would give him an adequate living.” In April, 1914, in the sublease of their apartment in Boston, both the testator and Mrs. Wellington described themselves as of Boston. Before he went to New York, he told his son-in-law that “he was going to New York to look for a job, but he did n’t like New York as a place to live.”

These facts, together with his letters and the other circumstances of the case, bring us to the conclusion that he had no definite intention to reside permanently in New York. He was unsettled. He had no established place of business. He was seeking employment. His place of residence depended upon his success in obtaining an occupation. Until he succeeded in this his absence from Boston was temporary and the original domicil was not abandoned. Ross v. Ross, 103 Mass. 575" court="Mass." date_filed="1870-01-15" href="https://app.midpage.ai/document/ross-v-ross-6415990?utm_source=webapp" opinion_id="6415990">103 Mass. 575. Olivieri v. Atkinson, supra. Babcock v. Slater, 212 Mass. 434" court="Mass." date_filed="1912-06-19" href="https://app.midpage.ai/document/babcock-v-slater-6431913?utm_source=webapp" opinion_id="6431913">212 Mass. 434. Sampson v. Sampson, 223 Mass. 451" court="Mass." date_filed="1916-04-05" href="https://app.midpage.ai/document/sampson-v-sampson-6433522?utm_source=webapp" opinion_id="6433522">223 Mass. 451, 460.

Decree affirmed.