
    Matter of the Contested Will of Maria Elizabeth Cleveland, Deceased.
    
      (Surrogate’s Court, New York County
    
    
      Filed July, 1899.)
    1. Jurisdiction — Will of Resident Sojourning Abroad.
    Where testatrix, although at the time of her death and for many years prior thereto sojourned abroad, yet had not intentionally relinquished her residence and domicile in this State, the proper Surrogate’s Court in this State had jurisdiction of the probate of a will drawn according to the laws of the State of New York but executed, in accordance with said laws, in Prance.
    2. Same — Will—Undue Influence.
    Where testatrix selected as the chief beneficiary under her will a young man in no way related to her, stating in said instrument that he had at the risk of his own life saved her from accidental drowning, and where there was nothing in the evidence to show that the bequest was not made from the influence of gratitude, affection or esteem, rather than from any influence exercised through coercion, imposition or fraud.
    Proceeding upon the probate of a will.
    Turner, McClure & Rolston, for proponent; Augustus C. Brown, for contestants.
   Varnum, S.

This case, tried before Mr. Surrogate Arnold, "but left undecided by him, has been reargued before and submitted to me for decision. The testatrix died at Nice, in France, March 2, 1897, at the age of 75 years, leaving a will ■dated and executed October 19, 1896, which was drawn by an American lawyer in accordance with the laws of the State of New York, and executed as required by the laws of said State. By the terms of said will testatrix gives certain jewels and laces to her sister; all of her furniture, objects of bijouterie and virtu to one William Lucien Scaife, of Pittsburgh, Pennsylvania; legacies aggregating $3,000 to two faithful servants; and then, by the sixth clause of the will, directs that the residue of her property, real, personal and mixed, be converted into cash, and, after payment of all debts, be invested and held in trust, and the net income therefrom paid to “ my beloved friend, Marvin E. Scaife, of Pittsburgh (who, at the risk of his own life, saved me from accidental drowning),” during his natural life, and at his death that the principal go to his children, if any, with a further provision that in case said Scaife should leave no children, the principal should go, upon his death, partly to his widow, if any, and the balance to the Board of Relief for Disabled Ministers and the Widows and Orphans of Deceased Ministers of the Presbyterian Ohureh, located in Philadelphia, Pennsylvania; and that, in the event of the death of said Scaife before the testatrix, without leaving widow or children him surviving, the whole principal of said trust fund should go to the said board of relief. Application for probate of said will having been made to this court, the same is contested by the only sister and a niece and two nephews of the decedent, her heirs-at-law and next of kin, upon the ground of undue influence exerted by Marvin E. Scaife or others, and, also, upon the ground that this court has no jurisdiction to admit said will to probate, as the testatrix was not a resident of this State, but of France, and said will was not executed in accordance with the laws of France; and furthermore, that, in any event, it can be admitted only as a will of personal property. It seems to be conceded that the property of the decedent was all personalty. The contestants claim that Mrs. Cleveland was -domiciled in Paris, France, and that, in such ease, there-is no provision in the laws of this State authorizing the admission to probate here of a will of personal property executed in France in accordance with the laws of this State, but not according to the laws of France. Citing the provisions of the Revised Statutes, Act of 1830, chap. 320; Laws of 1880, chap. 245; Laws of 1876, chap. 118; Code Civ. Pro. §§ 2611 and 2694; Laws of 1893, chap. 686; 20 N. Y. 103; 112, 131 id. 332; 23 id. 394; 1 Bradf. 69, 73; also distinguishing 18 N. Y. Week. Dig. 428; 5 Dem. 295; and, as to requirements of the laws of France, § 969 of French Civil Code, etc. The contestants also claim that, in any event, the trust clauses of the will arc void under the French law, and that the amounts so attempted to be disposed of in trust must be distributed to the next of kin in accordance with the intestate laws of France. Citing § 896, French Civil Code. The brief of the learned counsel for the contestants is an able and exhaustive one, and I have made special reference to the main points therein and to the citations made because some of the questions raised are important and may be of interest to the bar at large. In the case under consideration, however, I am satisfied, after careful consideration of the evidence and examination of the briefs of counsel, that the objections in question are not well taken, for I find that the testatrix, although at the time of her death and for many years prior thereto, sojourning abroad, had not intentionally relinquished her residence and domicile in this State, and that, therefore, this court has jurisdiction on that ground to admit the will to probate. The terms residence ” and domicile have been held to be synonymous. 120 N. Y. 491; 117 id. 167. To effect a change of domicile for the purpose of ■succession there must be not only a change of residence, but an intention to abandon the former domicile and acquire another as the sole domicile. Domicile of origin is presumed to continue until a new one is acquired. Residence alone has no effect per se, except as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, hut the two must be concurrent to constitute a change of domicile. The intention may be gathered both from acts and declarations. Acts are the most important, and written declarations usually more reliable than oral ones. Dupuy v. Wurtz, 53 N. Y. 556; see, also, Cruger v. Phelps, 21 Misc. Rep. 252. The facts in this case appear to be that the-testatrix, with her husband, both citizens of the United States and of the State of New York, went to Europe in 1865, and remained there until her husband’s death, in March, 1878, living most of the time in Switzerland and France. She returned to Hew York in the autumn of 1878, to attend the probate of her husband’s will and settle his affairs, and duly qualified as. his executrix December 16, 1878, taking the usual oath that she was a resident of Hew York. She returned to Europe in October or Hovember, 1879, and remained there continuously until her death, in March, 1897, occupying an apartment in Paris,, and during part of the time an apartment at Baden Baden, both furnished by herself, but also spending a considerable part of the time in traveling about Europe. It is clear, from the evidence, that the testatrix preferred living abroad after her husband’s death for many reasons of habit, personal comfort and health, but I find nothing to satisfy me that she had any intention of giving up her residence and domicile in Hew York, even though she thought it probable that she might never return there to live, because of her increasing age and ill-health,, and for other reasons given in her own letters in evidence, such as her dread of sea-sickness, the death of so many of her former acquaintances and friends, etc. Her associations abroad seem to have been chiefly with Americans; whenever she changed her will she consulted a Hew York lawyer, and when the last will was executed in October, 1896, she went, of her own volition, to the American consulate at Paris and executed it in the presence of the consul general and with two American attaches of his office and another American as subscribing witnesses. In the will so signed by her she is described as of the city of New York, and while this recital is, of course, not conclusive (3 Misc. Rep. 200), it could hardly have escaped her notice if she had formed a deliberate intent of legally changing her domicile. In addition, she names in her will a New York trust company as executor. The only question remaining is as to whether there was any undue influence exerted upon her to secure the execution of the will in question. Where a will is contrary to the dictates of natural affection, of justice and of duty, the burden is on the proponents of giving some reasonable explanation of its unnatural character, or, at least, that it was not the result of mental defect, obliquity or perversion. 54 Hun, 132, 138. In the case under consideration, the testatrix has not selected as the chief beneficiaries under her will her nearest blood relatives, hut the principal object of her bounty is a young man who is not in any way related to her, hut there is nothing in the evidence to satisfy me that that the bequest to him was not made from the influence of gratitude, affection or esteem, rather than from any influence exercised through coercion, imposition or fraud such as constitutes undue influence. 3 Keyes, 669. Nor is there, in my judgment, sufficient evidence to sustain the contention that the testatrix had her faculties so impaired as to he readily subject to any controlling influence of hypnotism, force, imposition or fraud, or that any such influence was actually exerted in connection with her execution of the will. Her will may not he such as some of us would consider wise and in accordance with the claims of her nearest relatives, hut the principle is well settled that in the absence of clear proof of incapacity, fraud or undue influence, it is a testator’s privilege to do as he will with his own. Clapp v. Fullerton, 34 N. Y. 197.

Submit decree admitting will to probate.

Probate decreed.  