Surrogate's Court, Westchester County, December, 1921. [Vol. 117. offered, both oral and written declarations, it is found that in every formal act of his life since 1900, where it became necessary for him to state his domicile, he invariably claimed it as the state of Connecticut, and not New York. Any of these recited acts, or declarations, standing alone may be of slight importance, none are conclusive, but grouped together, create the highest evidence of unequivocal acts, conclusively proving an intent to keep the domicile of origin. Together they are abundant and are an unvarying index of his intention. The proven acts are clearly contradictory of any intention to abandon his Connecticut domicile. These facts must be accepted as determinative of his intent. City of New York v. Beers, 163 App. Div. 495. It may be said that prior to 1916 the burden of proof rested upon the party alleging a change of domicile. Dupuy v. Wurtz, 53 N. Y. 556, 562; Matter of Newcomb, 192 id. 238; People ex rel. Blocher v. Crowley, 21 App. Div. 304; affd., 155 N. Y. 700; Matter of Gad, N. Y. L. J. April 5, 1916; Matter of Brooks, 105 Misc. Rep. 559; Matter of Horton, 175 App. Div. 447; Matter of Lydig, 191 id. 117; Matter of Tallmadge, 109 Misc. Rep. 696. It may be that the burden still rests upon the party asserting another domicile. But, be that as it may, let us assume that, upon the authority of Matter of Barbour, 185 App. Div. 445; affd., 226 N. Y. 639, the burden of an intention to abandon a domicile of origin, which formerly rested upon those who assert it, no longer obtains in this state in a taxable transfer case (Matter of Frick, 116 Misc. Rep. 488, 491) by reason of section 243 of the Transfer Tax Law, being chapter 551 of the Laws of 1916, as amended by chapter 629 of the Laws of 1919, which says: every person shall be deemed to have died a resident and not a non-resident of the Misc.] Surrogate's Court, Westchester County, December, 1921. state of New York if and when such person shall have dwelt or shall have lodged in this state during and for the greater part of any period of twelve consecutive months in the twenty-four months next preceding his or her death ***. The burden of proof in transfer tax proceedings shall be on those claiming exemption by reason of the alleged non-residence of the deceased *." This section was construed in Matter of Barbour, supra, as creating only a disputable presumption of residence, which may be overcome by the proof of the case indicated by the acts, conduct, and statements as to the intent of the decedent. The burden laid upon the executor in the instant case by statutory law, in my opinion, has been met, overcome and destroyed by the evidence upon the record. It is abundant and convincing. It all indicated an undeviating determination- a plain intent. The cases of Dupuy v. Wurtz, 53 N. Y. 556, and Matter of Newcomb, 192 id. 238, 250, are the leading and foundation cases upon this subject in the state. Judge Rapallo in Dupuy v. Wurtz, supra, in referring to the elementary principles governing questions of domicile, says: "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. 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. (Hodgson v. De Beauchesne, 12 Moore P. C. 283, 328; Munro v. Munro, 7 Cl. & Fin. 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 Surrogate's Court, Westchester County, December, 1921. [Vol. 117. follows: Change of residence alone, however long continued, does not effect a change of domicil as regulating the testamentary acts of the individual. It may be, and is, strong evidence of an intention to change the domicil. But unless in addition to residence there is an intention to change the domicil, no change of domicil is made. And in Whicker v. Hume (7 H. L. 139) it is said the length of time is an ingredient in domicil. 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 domicil of origin is presumed to continue until he has acquired another sole domicil with the intention of abandoning his domicil of origin; that this change must be animo et facto, and the burden of proof unquestionably lies upon the party who asserts the change." And again (at p. 569): "All the authorities agree that to effect a change of domicile, there must be an intention to do both" (abandon and acquire), and again (at p. 570): "A mere declaration of an intention not to return is not conclusive as to change of domicile." Judge Vann in Matter of Newcomb, supra, 192 N. Y. 250, states the law to be as follows: "Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. "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 circum Misc.] Surrogate's Court, Westchester County, December, 1921. stances, 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 to acquire a new domicile there must be a union of residence and intention. Residence without intention, or intention without residence is of no avail. Mere change of residence although continued for a long time does not effect a change of domicile, while a change of residence even for a short time with the intention in good faith to change the domicile, has that effect. Uno solo die constituitur domicilium si de voluntate appareat. Residence is necessary, for there can be no domicile without it, and important as evidence, for it bears strongly upon intention, but not controlling, for unless combined with intention it cannot effect a change of domicile. (Dupuy v. Wurtz, 53 N. Y. 556, 561; The Venus, 8 Cranch, 253, 278; Carey's Appeal, 75 Penn. St. 201, 205; Wharton's Conflict of Law [2d ed.], 21, 56, 66.) There must be a present, definite and honest purpose to give up the old and take up the new place as the domicile of the person whose status is under consideration. The subject is under the absolute control of every person of full age and sound mind who is free from restraint, unless it may be that the domicile of a wife is controlled by that of her husband as long as she lives with him. (Story's Conflict of Law [7th ed.], § 46.) Subject to the qualifications named every human being may select and make his own domicile, but the selection must be followed by proper action. Motives are immaterial, except as they indicate intention. A change of domicile may be made through caprice, whim or fancy, for business, health or pleasure, to secure a change of climate, or a change of laws, or for any reason whatever, provided there is an absolute and fixed intention to abandon one and Surrogate's Court, Westchester County, December, 1921. [Vol. 117. acquire another and the acts of the person affected confirm the intention. (McConnell v. Kelley, 138 Mass. 372.) No pretense or deception can be practiced, for the intention must be honest, the action genuine and the evidence to establish both, clear and convincing, The animus manendi must be actual with no animo revertendi. A temporary residence for a temporary purpose, with intent to return to the old home when that purpose has been accomplished, leaves the domicile unchanged, but even if the residence was begun for a temporary purpose, intention may convert it into a domicile. When a new domicile has been actually acquired it does not necessarily revert, even if not followed by continuous residence. There may be many absences from the new place and protracted sojournings in the old, unless intention and residence unite again, when still another change of domicile is effected." These principles, so clearly and succinctly asserted in these two leading cases, are affirmed and restated by Mr. Justice McLaughlin, now of the Court of Appeals, in United States Trust Co. v. Hart, 150 App. Div. 413; affd., 208 N. Y. 617. There the court says: "The fact that he resided in Paris most of the time from 1880, while important to be considered, certainly is not controlling, because domicile may exist without actual residence, but never without intention. (de Meli v. de Meli, 120 N. Y. 485.)" Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. In order to acquire a new domicile, there must be a union of residence and intention. Residence without intention, or intention without residence, is of no avail, etc. Matter of Roberts, 8 Paige, 519; Cruger v. Phelps, 21 Misc. Rep. 252, |