
    In re WHITE’S ESTATE.
    (Supreme Court, Appellate Division, First Department.
    December 7, 1906.)
    Domicile—Transfer Tax—Evidence—Sufficiency—Declaration of Testator.
    A testator, whose will was admitted to probate in New Jersey, for about 15 years prior to his death had been accustomed to spend his winters in a New York boarding house, returning in the spring to New Jersey, where he owned his home. He had no property in New York, and when he left in the spring preceding his death in August he stated his intention to remain permanently in New Jersey. About four years before his death he had voted in New York and for several years prior to his death he had paid a personal tax in such state, and prior to his final departure therefrom had described himself in several instances as a resident thereof. Held insufficient to support a finding of a New York residence so as to justify an imposition of a transfer tax upon his estate.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Domicile, § 39.]
    Houghton, J., dissenting.
    Appeal from Surrogate’s Court, New York County.
    Proceedings for the appraisal of a transfer tax on property of Nathaniel H. White, deceased. From an order affirming a prior order assessing such tax, the executors appeal. Reversed, and proceedings dismissed.
    Argued before McLAUGHLIN, HOUGHTON, INGRAHAM, CLARKE, and SCOTT, JJ.
    Paul Bonynge, for appellant.
    Alfred Yankauer, for respondent.
   INGRAHAM, J.

The testator died in Asbury Park, in the state of New Jersey, on August 17, 1904, leaving a last will and testament which was admitted to probate by the probate court of Sussex county, N. J., and subsequently the surrogate of New York county granted ancillary letters testamentary. The only substantial question presented on this appeal is whether the surrogate correctly decided, upon a preliminary investigation by him, that the testator died a resident of the state of New York. He died on August 17, 1904. He was born in the town of Newton, N. J. He appears to have lived there for upwards of 25 years, and then removed to Newark, N. J., where he lived for a period of 20 years, owning the house in which he lived. About 12 or 15 years before his death he broke up his home at Newark, spent the summer at Newton, in the state of New Jersey, and about the 1st of November came to New York, lived in a boarding house during the winter, leaving New York again for New Jersey about the 1st of March.

Subsequently he generally spent the winters in New York. In the fall of 1903 he came to New York, boarding at Miller’s Hotel, stayed there for a few months, and left about the 1st of March, 1904, and took up his residence in Newton, N. J. He retained no room at the hotel and subsequently had no New York residence, and had no property of any kind in this state. When he left he stated that he did not intend to return to New York, but did intend to remain permanently at Newton. There is no evidence that the testator had a residence in the state of New York at the time of his death, and the case of the Comptroller depends entirely upon the fact that the testator had voted in New York in 1900, and that he had paid a personal tax for several years prior to his death as a resident of New York, and had described himself in some instruments that he executed as a resident of New York before March 1, 1904. It seems that he voted in the state of New York in the years 1900 and 1901, but it does not appear that he voted subsequent to that time. Assuming that this evidence would be sufficient to justify a finding that the testator was a resident of the state of New York prior to the year 1904, the evidence is quite convincing that he gave up his residence in New York when he left in the spring of 1904, returned to the state of his birth, where he had lived the most of his life, with the intention of making that state his home. There was certainly nothing thereafter to justify the finding that he continued to be a resident of the state of New York. He had no actual residence here. Had no property here, and the courts of the state of New Jersey have accepted jurisdiction of his estate, and determined that the testator was a resident of the state of New Jersey. Certainly, to justify the courts of this state in reversing that decision, there must be proof to show that the testator was actually a resident of the state of New York at the time of his death.

I think, therefore, that the order appealed from should be reversed, with $10 costs and disbursements, and the proceeding dismissed.

MCLAUGHLIN, CLARKE, and SCOTT, JJ., concur.

HOUGHTON, J.

(dissenting). I do not think this proceeding should be dismissed. It was not so clearly established that the testator was a resident of the state of New Jersey as to authorize such a disposition of the matter. I think, however, there should be a rehearing. It was error to exclude the proposed testimony of the witness Polhemus as to personal communications had by her with the testator. She was a daughter of testator, and is the legatee Ida P. White mentioned in his will. Statements made by the testator to her as to changing his residence, and what he intended to do in that respect, were excluded on the ground that she was incompetent to testify to them under section 829 of the Code of Civ. Proc. A legatee or distributee is not prohibited by this section from testifying to personal transactions and communications had with his testator or intestate in a proceeding to appraise property under the transfer tax act. Matter of Grould, 19 App. Div. 352, 46 N. Y. Supp. 506; Matter of Brundage, 31 App. Div. 348, 52 N. Y. Supp. 362. The above authorities on this proposition do not seem to have been overruled or questioned, and they appear to be founded upon just principles. The tax is not against the estate, and it has no interest in its amount. It is levied against the amount of the legacy or distributive share passing to the legatee or distributee. The witness was interested to establish the fact that the testator was a resident of the state of New Jersey, and was not a resident of the state of New York. Her interest, however, did not disqualify her from testifying to such material facts as she might know concerning such residence. Her interest might affect the weight of her testimony, but did not render her incompetent, for she was not testifying against the estate or the executors under the will. I think the error was sufficiently material to require a rehearing.

The order should be reversed, and the matter remitted for a rehearing before the surrogate.  