UNITED STATES TRUST COMPANY OF NEW YORK, as Executor, etc., of BENJAMIN HART, Deceased, Respondent,
BENJAMIN HART and Others, Respondents, Impleaded with ISABEL LUCCHESI GUILLEMIN and GRACE SEELEY HILLER, as Executrix, etc., of ESTELLE KITTY HART, Deceased, Appellants.
APPEAL by the defendants, Isabel Lucchesi Guillemin and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of June, 1911, upon the decision of the court rendered after a trial at the New York Special Term.
Donald Harper, for the appellant Guillemin.
Franklin Bien, for the appellant Hiller, as executrix, etc.
George L. Shearer, for the respondent United States Trust Company.
Frederic R. Coudert, for the respondents Hart and Nathan.
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 New York. Two separate appeals were taken from the judgment, one by the defendant Guillemin 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 New 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 difficult.
This follows because it depends upon intention to be ascertained from facts which necessarily are so different in each case that precedents are of little assistance. It has been defined as the place where one has 'his true, fixed, permanent home and principal establishment, to which whenever he is absent he has an intention of returning.' (Story Confl. Laws [8th ed.], 41.)
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 ...