Misc.] Surrogate's Court, Westchester County, December, 1921.

Lafayette B. Gleason (John B. Gleason, of counsel), attorney under designation of State Tax Commission, as in estate of non-resident.

Francis A. Winslow (Charles C. Fenno, of counsel), for State Tax Commission.

T. Ludlow Christie (Arthur R. Wilcox, of counsel), for executor.

Carlos S. Holcomb, for Tax Commission of State of Connecticut.

SLATER, S. In this taxable transfer proceeding the domicile of the decedent must be determined. It appears that an application was made by the executor to the surrogate of New York county for the appointment of an appraiser, upon the theory that the decedent was a non-resident, owning property in that jurisdiction. After hearing had before the transfer tax appraiser, it was reported by him to the surrogate, that a question relating to residence was primarily involved. Upon a hearing before the surrogate of New York county, the completed proceeding was transferred to this court for determination, by order dated October 25, 1921 (116 Misc. Rep. 640), upon the ground that, in the event it was found that the decedent was a resident of Westchester county, the court's jurisdiction would be ousted by force of section 45 of the Surrogate's Court Act, formerly section 2515 of the Code of Civil Procedure and section 228 of the Tax Law.

Upon the hearing before me, counsel stipulated that the testimony on the subject of residence already taken in New York county may be received by this court with the same force and effect as if the proceeding had been originally instituted in the county of Westchester.

Surrogate's Court, Westchester County, December, 1921. [Vol. 117.

An inheritance tax is imposed upon the transfer of property within the state where the transfer takes place, which is the place of the domicile of the decedent at the time of his death. The term "resident," section 47 of the Decedent Estate Law, designates a person domiciled in the state, and in legal phraseology is synonymous with domicile. People v. Platt, 117 N. Y. 159; Matter of Rooney, 172 App. Div. 274; Matter of Martin, 173 id. 1, 3; Matter of Harkness, 183 id. 396; Matter of Lydig, 191 id. 117; Matter of Blumenthal, 101 Misc. Rep. 83; affd., 186 App. Div. 944; Matter of Martin, N. Y. L. J. Dec. 28, 1916; Matter of Robitaille, 78 Misc. Rep. 108; Matter of Brooks, 105 id. 559. In ascertaining the domicile of the decedent, two considerations must be kept in mind; that every person must have a domicile somewhere; that a person can have only one domicile for one purpose, at one and the same time. Everyone has a domicile of origin which he retains until he acquires another. De Meli v. De Meli, 120 N. Y. 485; Dupuy v. Wurtz, 53 id. 556, 562; United States Trust Co. v. Hart, 150 App. Div. 413; affd., 208 N. Y. 617; Matter of James, 221 id. 256; Abington v. North Bridgewater, 23 Pick. 170, 177; Jacobs Domicil, ¶ 114. Where the facts conflict, the presumption is strongly in favor of an original, as against an acquired domicile. A change of domicile is a proceeding of a serious nature. It determines his civil and political rights and privileges, duties and obligations. It furnishes the rule for the disposal of property.

Every case involving the question of domicile must stand upon its own peculiar circumstances, must be bottomed on its own facts. Consequently, we must look to the leading cases of this state to test the question of domicile arising in the instant case.

Before we attempt to solve the legal question as to

Misc.] Surrogate's Court, Westchester County, December, 1921.

whether the decedent acquired a new domicile of choice, either forced by law, or voluntary, let us first consider and decide whether it can be said that he abandoned his domicile of origin.

The facts are not disputed. John Lyon, farmer, died July 12, 1920, at Port Chester,.N. Y. Since January, 1900, he had resided continuously at Port Chester with his wife and children. His domicile of origin was in Greenwich, Conn., where he was born in the year 1839. He was a descendant of one of the first settlers. The decedent never resided elsewhere than, first, on the farm where he was born, situate on Weaver street in Greenwich, Conn., and later on a farm located on King street, in the village of Port Chester, N. Y. These two places of residence, in an air line are about one and one-half miles apart, by the highway they are about three miles distant, with about an equal distance of either house from the boundary line dividing the states of Connecticut and New York. For convenience in transacting business in Greenwich, with present day conditions of highway and travel, either of these abodes offers equal opportunity.

The decedent married in Greenwich and reared his family there. Upon coming into a large inheritance, consisting of several farms and a large personal estate, he removed in 1900 to one of the farms on the then outskirts of Port Chester. The house upon this farm had been occupied by his deceased relative. It was a furnished modern farmhouse, containing conveniences. He visited his sister who lived in the old homestead on Weaver street until her death in 1910, sometimes passing the night, since which time the Weaver street house has been occupied by a caretaker. The decedent until his death worked the Weaver street farm with hired men and visited it several times a week. He was generally found there

Surrogate's Court, Westchester County, December, 1921. [Vol. 117.

by his friends and attorneys. He was made a freeman in Greenwich in March, 1861, and continued to exercise his communal relations in Connecticut until 1913, always attending and taking part in town meetings. He never voted elsewhere. Paddack v. Lewis, 59 App. Div. 430, 434; affd., 179 N. Y. 591; City of New York v. Beers, 163 App. Div. 495. He was a director in two banks, one in Greenwich and one in Port Chester, from 1910 to 1913, inclusive, and upon qualifying as such director, had signed and sworn to solemn oaths in successive years that he was a resident of Greenwich. Deeds, mortgages and other papers, some four hundred and sixty-six in number, recorded in Greenwich, in Westchester county and Kings county, N. Y., show he was always mentioned and described as a resident of Greenwich. In fact, when such papers were presented for his signature, or his acceptance, if he was otherwise described, he repudiated them and declined to receive them, or to execute them.

In an affidavit verified August 21, 1900, submitted to the assessors of the town of Rye, the decedent states: "I am not now, and never have been, and was not between May 1st and July 1st, 1900, a resident of this Town, or of the County of Westchester. My residence is now, and always has been in the Town of Greenwich, State of Connecticut, and that residence I have never surrendered and have never taken up residence elsewhere Although at present living at King Street in the Village of Port Chester, Town of Rye, I have not intended to make it my residence or to surrender my residence in the Town of Greenwich. Having never been a resident of the Town of Rye, I object to the personal assessment mentioned."

In December, 1909, in relation to taxes in New York city, he swore that he was and still is a resident of

Misc.] Surrogate's Court, Westchester County, December, 1921

Greenwich and has been such resident for many years. In certain tax proceedings against the village of Port Chester in July, 1918, he swore that he was a resident of Greenwich. In Port Chester he was taxed as a non-resident. In Connecticut he was taxed as a resident and made a return upon a resident blank. De Meli v. De Meli, 120 N. Y. 485, 491. His Federal income tax report was filed at Hartford, Conn., upon a resident form of blank, describing himself as a resident of Connecticut. From the testimony of his Connecticut attorney, it appears that he stated: "He had acquired property in Port Chester by inheritance, and there was a house over there and he was going to live there until he could dispose of the property, that he had no intention of changing his legal residence." That "the decedent said, the question of residence was a question of intent. If a man had a domicile in one place because he actually moved into the other State, he would not lose his residence until there was a change of domicile, that he was so advised by counsel." In his will dated March 31, 1913, he is mentioned as of Greenwich. The will was probated there July 30, 1920. Matter of Mesa y Hernandez, 172 App. Div. 467; affd., 219 N. Y. 566. Witnesses testified that he said to them in 1900, and later, that he "never intended to change his residence; that the motive in living in Port Chester was to occupy part of his inheritance and attempt to market it; that he spent a large part of his time in Greenwich." He kept his securities in a safe deposit vault in Greenwich. John Lyon was a Connecticut man by birth, tradition and by long years of residence. Several of the evidentiary facts here related were present in Matter of Morgan, 176 App. Div. 909, as stated in Matter of Harkness, 183 id. 396, 407.

In reviewing at length the multitude of evidence