
    Common Pleas Court of Montgomery County.
    In Re Estate of Charles W. Palmer, Deceased.
    Decided August 29, 1930.
    
      McClure & McClure, and Sigler & Denlinger, for Executor.
    
      Herbert T. Leyland, for next of kin.
    
      James Toddie, for Bessemer Trust Co.
    
      W. Clyde Grubbs, for next of kin.
    
      Fred Hershey, for state of Ohio and next of kin.
    
      W. G. Negley, for Board of Assessment and Revision of Taxes of Allegheny County, Pa.
   Snediker, J.

This case is before the court on appeal from the judgment of the Probate Court of this county. The question presented on the appeal is whether the domicile of the decedent at the time of his death was in the county of Montgomery and state of Ohio. Charles W. Palmer died testate at the National Military Home in this county. His will, which was deposited with the Bessemer Trust Company at Pittsburgh, Pa., was there probated. A certified copy, thereof, together with the decree of the Register for the Probating of Wills was filed here, and application was made for letters testamentary by the Bessemer Trust Company. As shown by that application, decedent left surviving him as next kin, brothers, a sister, nieces and nephews, all resident of the state of Pennsylvania. The Bessemer Trust Company, was appointed by the Probate Court of this county, and an inventory was taken here of decedent’s estate, which shows no real estate, no money, and that at the time of his death that he was possessed of over $300,000 of securities, consisting of stocks, bonds, mortgages, etc. Such proceedings were had that on October 1, 1929, a partial account was filed by the ancillary administrator here, and thereafter exceptions were presented to the inventory. Those exceptions raise the sole question as to the legal domicile of the decedent.

Charles W. Palmer when he died was 83 years of age. During the greater part of his life he had been a resident of the state of Pennsylvania. He was a married man, and made his domicile there. He was a veteran of the Civil War,’ and he made application for admission to the National Military Home at Dayton, Ohio. He was admitted to that Home on October 2, 1908. Prior to coming here, and after his wife’s death, he had sold his home in Pitcairn, Pa., to his niece. There was kept for him a furnished room. He also had at that house his family pictures and the tools of his trade, together with some articles of furniture. After he became an inmate of the Home on a readmission in December of 1913, by request he procured furloughs, during which he returned to Pitcairn. Between 1913 and 1928 he was granted 11 such furloughs. These, with two or three exceptions, were taken by him in the spring and summer months. His habit, up until November of 1926, was to spend his summers in and about Pitcairn, and return to the Military Home during the winter. While he was in Pitcairn he was employed in different capacities. At one time he was a watchman on a railroad, putting in 16 hours a day at that service. At another time he undertook the construction of a house, and while he did that he lived largely in a garage which was built in connection with the house, and returned to his room at his niece’s principally on Saturday afternoons and nights, and on Sundays. The decedent paid taxes in Pennsylvania upon certain mortgages which he held on real estate. The payment of such taxes was in a minor amount, but continued until a short time before his death. He was an insurance agent there, and accepted an appointment as such agent as a resident of Pitcairn. He made his will and deposited it with the Bessemer Trust Go. at Pittsburgh, Pa. He had a checking account at the First National Bank of Pitcairn, and at the People’s National Bank of Pitcairn at the time of his death. The securities which he left were deposited in a box in the Dayton Savings & Trust Company, of Dayton, Ohio. While he was at the Soldiers Home, and shortly before he died, he entered into a contract with the McCain Realty Company for the construction of 15 houses for a consideration running into the thousands, and by that contract he was designated as being “of Dayton, Ohio.” ‘ So far as the record discloses, his life here was that of the ordinary inmate of the Military Home. He did not disclose in Pennsylvania, nor in Ohio, the real extent of his property. He paid no taxes here. It appears that in 1924, he voted at the election at a booth at the Soldiers Home. In 1926, testimony satisfies us that he registered and voted in Pitcairn. After his last return to the Soldiers Home in November of 1916, being of extreme old age, he remained continuously until his last illness and death on November 25, 1928.

These are some of the salient facts which relate to the conduct, residence and habitation of decedent. Taken by themselves, the question presented by this record would be difficult of solution.

During his life he wrote letters and made statements which bear upon his own idea of where he intended his domicile to be. Statements made by him, without quotation except as to a few, all indicate a. state of mind which contemplated a return to Pennsylvania. Talking with Doctor Funk, during his last illness, he discussed his will with him, and referred to the fact that he was a resident of Pitcairn, and the testimony of Funk is that at different times after the sale of $100,000 of bonds to Palmer, he had come to Funk’s office, and in every instance when he made reference to his residence he spoke of Pitcairn as being that place. He stated to his niece: “I want my estate settled in Pennsylvania.” His relatives, including his wife, are buried in that state, and it was there he was taken after his death. At one time he said to Mrs. Walters, after he had returned to Pitcairn: “I am back home again.” He displayed an anxiety, about the time of the purchase of some bonds, as to his domicile, the question coming up in reference to their taxation in Ohio and in Pennsylvania, and before they were sold to him, and at his request Doctor Funk secured an opinion from James & Coolidge, attorneys in this city, that his domicile was in -fact in Pennsylvania. It was only then that he was satisfied to buy the bonds, indicating his desire and also his satisfaction with that state as such domicil.

In order to locate ourselves properly in considering the question presented to the court, the distinction between residence and domicile ought to be recognized. These are not convertible terms. Domicile may be in one place and the residence for the time being in another place. Domicile is a larger term than residence. “To constitute domicile, two things must concur: first, residence, and secondly, the intention of making it the home of the party.” In the case of Dupuy v. Wurtz, 53 New York Reports (Court of Appeals), p. 556, the decision of Judge Rapallo is a complete discussion of the law of domicile. In the body of the opinion, the court says:

“One leading rule is that for the purposes of succession every person must have a domicile somewhere, and can have but one domicile, and the domicile of origin is presumed to continue until a new one is acquired. Somerville v. Somerville, 5 Ves., 750, 786, 787; Story Conf. Laws, Sec. 45; Abington v. N. Bridgewater, 23 Pick., 170; Graham v. Pub., Admr., 4 Brad., 128; De Bonneval v. De Bonneval, 1 Curtiss, 856; Attorney-General v. Countess of Wahlstatt, 3 Hurl. & Colt., 374; Aikman v. Aikman, 3 McQueen, 855, 863, 877. * * *
“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. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile. 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 charge. Intention alone will not do it, but the two taken together do constitute a change of domicile. Hodgson v. De Beauchesne, 12 Moore P. C. cases, 283, 328; Munro v. Munro, 7 Cl. & F., 877; Collier v. Rivaz, 2 Curteis, 857; Aikman v. Aikman, 3 McQueen, 855, 877. This rule is laid down with great clearness in the case of Moorhouse v. Lord, 10 H. L., 283, 292, as follows: Change of residence alone, however long continued, does not effect a change of domicile as regulating the testamentary acts of the individual. It may be, and is, strong evidence of an intention to change the domicile. But unless in addition to residence there is an intention to change the domicile, no change of domicile is made. And in Whicker v. Hume, 7 H. L., 139, it is said the length of time is an ingredient in domicile. It is of little value if not united to intention, and is nothing if contradicted by intention. And in Aikman v. Aikman 3 McQueen, 877, Lord Cranworth says, with great conciseness, that the rule of law is perfectly settled that every man’s domicile of origin is presumed to continue until he has acquired another sole domicile with the intention of abandoning his domicile of origin; that this change must be animo et facto, and the burden of proof unquestionably lies upon the party who asserts the change. * * *
“With respect to the evidence necessary to establish the intention, it is impossible to lay down any positive rule. Courts of justice must necessarily draw their conclusions from all the circumstances of each case, and each case must vary in its circumstances; and moreover, in one a fact may be of the greatest importance, but in another the same fact may be so qualified as to be of little weight. 12 Moore Priv. C. C., 330.

Later on in his decision the court says:

“The cases of Jopp v. Wood (1864), 34 L. J. Eq., 212, and Moorhouse v. Lord, 10 H. L., 284, proceed upon the ground that in order to acquire a new domicile, there must be an intention to abandon the existing domicile. All the authorities agree that to effect a change of domicile there must be an intention to do both. Some of them hold that the intention to do one implies an intention to do the other. But in all the cases the question of intention is treated as one of fact, to be determined according to the particular circumstances of each case. See also Douglass v. Douglas, Law Rep., 12; Eq., 617, 647; Attorney-General v. Countess de Wahlstatt, 3 Hurl. & Colt., 374; Udny v. Udny, L. R., 1 Scotch App., 441, 1070; White v. Brown, 1, Wallace, Jr., 217.”

In his work on Conflict of Laws, Wharton, using the authorities, lays down the rule that:

“Mere absence can never, by itself, divest domicile, no matter how long such absence may continue. The absentee, whether he wander from place to place for pleasure or on business, may continue this absence for years; but until a new domicile is acquired, the old remains. * * * The animus to abandon one domicile for another, said Lord Curriehill, in a Scotch case, ‘imports an intention not only to relinquish those peculiar rights, privileges and immunities which the law and constitution of the domicile confers —in the domestic relations, in purchases and sales, and other business transactions, in political or municipal status, and in the daily affairs of common life — but also the laws by which succession to property is regulated after dehth. The abandonment or change of a domicile is therefore a proceeding of a very serious nature, and an intention to make such a change is required to be proved by very satisfactory evidence.”

Supporting the foregoing are the recent cases of Barclay’s Estate, 259 Pa., 401, and Price, Appellant, v. Price, 156 Pa. State, 617. In the case of A. J. Keller, Admr., et al. v. Baird et al., 5 Tenn., p. 39, the court discusses the law of domicile at great length and to the same effect as what we have already quoted. In the leading case of Somerville v. Somerville, found in 5 Vesey, Jun. Chancery Reports, at p. 750, the different rules are laid down by the application of which a determination may be made of domicile. The second rule recited by the Master of the Rolls is as follows:

“Though a man may have two domiciles for some purposes, he can have only one for the purpose of succession,”

We are dealing here with a question of succession.

“That is laid down expressly in Denisart under the title Domicile; that only one domicile can be acknowledged for the purpose of regulating the succession to the personal estate. I have taken this as a maxim; and am warranted by the necessity of such a maxim; for the absurdity would be monstrous, if it were possible, that there should be a competition between two domiciles as to the distribution of the personal estate. It could never possibly be determined by the casual death of the party at either. That would be most whimsical and capricious. It might depend upon the accident, whether he died in winter or summer, and many circumstances not in his choice, and that never could regulate so important a subject as the succession to his personal estate.
“The third rule I shall extract is, that the original domicile, or, as it is called, the forum originis, or the domicile of origin, is to prevail, until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile and taking another as his sole domicile.”

In a case decided by this court, which was afterwards affirmed by the Court of Appeals and by the Supreme Court, found in the 27th Ohio Nisi Prius Reports at p. 323, it was held that the law of domicile governs the succession of personal estates of every description wherever located. In that opinion, we referred to decisions of our own Supreme Court as well as other courts of last resort, and to the decision of Chief Justice Taft in the case of Blodgett, Tax Commissioner, v. Silverman, decided May 1, 1928.

This discussion indicates the opinion of this court. In pursuance of the authorities referred to, and of the facts here recited and found in extension in this record, we find that the domicile of the decedent at the time of his death was at Pitcairn, Pa., and that the law of Pennsylvania should control as to the succession of his personal estate, whether for purposes of taxation or as to. the validity of the testamentary document • deposited by him with the Bessemer Trust Company.

Let an entry be drawn accordingly.  