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

261; 19 C. J. 393; Duke v. Duke, 70 N. J. Eq. 135; Penfield v. Chesapeake R. Co., 134 U. S. 351, 357.

Residence and intention, animus et factum, go hand in hand. They must be both present to create the change of domicile. An intention to abandon the former domicile must appear. Either residence alone, or intent alone, is not sufficient. Gleason & Otis Inheritance Tax, p. 214; Matter of Lydig, 191 App. Div. 117; Matter of James, 221 N. Y. 242, 256; Matter of Frick, 116 Misc. Rep. 488; 19 C. J. 423, n. 39; Plant v. Harrison, 36 Misc. Rep. 649; Frost v. Bristbin, 19 Wend. 11. The naked residence in itself amounts to nothing, unaccompanied with evidence of the animus. Isham v. Gibbons, 1 Bradf. 69, 89. Long continued absence from the domicile is not an indication of abandonment so long as the intention to return exists. The length of residence elsewhere does not affect the change. Matter of Blumenthal, 101 Misc. Rep. 83; affd. without opinion 186 App. Div. 944; Curtis v. Curtis, 185 id. 391; Matter of Harkness, 183 id. 396; Matter of Mesa y Hernandez, 172 id. 467; People v. Platt, 117 N. Y. 159; Matter of Chadwick, 109 Misc. Rep. 696; Matter of Frick, supra; Etna National Bank v. Kramer, 142 App. Div. 444. Mr. Justice Jenks of the Appellate Division of the second department in Webster v. Kellogg Co., 168 App. Div. 443, also restates these principles.

We must gather a dead person's intention from his acts, his solemn statements and his conduct. It is a question of fact, and it is the court's duty to pass upon the facts as well as the law. Intention may be proved just as any other fact is proved by any relative evidence. Matter of Seymour, 107 Misc. Rep. 330.

Upon this point, the court in Dupuy v. Wurtz, says (at p. 562): "With respect to the evidence necessary

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

*

to establish the intention, it is impossible to lay down any positive rule. In passing upon such a question, in view of the important results flowing from a change of domicil, the intention to make such a change should be established by very clear proof." (Cases cited.) "The intention may be gathered both from acts and declarations. Acts are regarded as more important than declarations, and written declarations are usually more reliable than oral ones."

And again, in Matter of Newcomb, supra, p. 252: "While acts speak louder than words, the words are to be heard for what they are worth." In United States Trust Co. v. Hart, 150 App. Div. 413, 417, referring to the character of evidence, the court says: "One's acts are always much more satisfactory as evidence of intention than his declarations, and written declarations are considered stronger than oral ones." "Declarations are primarily valuable as expressions of intention, but they are not controlling and are subject to be overcome by 'other and more reliable indications of the true intention.'

The time, occasion and manner of making them, the reasonableness and consistency with themselves and with the other proven facts in the case, the presence or absence of the suspicion of sinister purpose in making them enter materially into the estimation of their value.'"' Plant v. Harrison, 36 Misc. Rep. 649, 669; Jacobs Domicil, TT 454, 455; Sherwood v. Judd, 3 Bradf. 267; Peterson v. Chemical Bank, 32 N. Y. 21; Isham v. Gibbons, 1 Bradf. 69; Matter of Zerega, 20 N. Y. Supp. 417; Hitt v. Crosby, 26 How. Pr. 413, 416.

In Cruger v. Phelps, 21 Misc. Rep. 252, 264, Justice Chase, later of the Court of Appeals, writes words that might well be used in the instant case. He says: "In deeds and other instruments executed by and to

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

him, there is a uniform and unvarying reference to his residence in the city of New York. This statement is made in instruments prepared and executed in France and other parts of Europe, as well as in instruments prepared and executed in this country. Such designation in these papers was not the work of a draftsman, but the work of the testator. They present a continuous unequivocal and consistent statement of intention in solemn instruments, covering all the period in question. These statements were made when there was no controversy, and cover such a long period of time as to preclude the idea of their being made with reference to property rights, and they were so deliberately and frequently made as to preclude the idea of carelessness or inadvertence. To hold in the face of all these declarations that Mr. Pell intended to change his legal domicile is to brand him as a deliberate falsifier."

In Matter of Cleveland, 28 Misc. Rep. 369, the decedent had resided abroad for thirty-two years. Surrogate Varnum says: "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 New York, even though she thought it probable that she might never return there to live,

*." Matter of Brant, 30 Misc. Rep. 16.

The facts in the present case fully supply and indicate the decedent's intention to keep his domicile of origin in Greenwich, Conn. The acts are inconsistent with an intention on his part to change his domicile. The overt acts showing intent to keep the domicile of origin, with the utter lack of evidence showing an intent to abandon it, are not overcome or outweighed by mere residence here.

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

The state tax commission strongly contends, as they have argued in other cases involving the question of domicile, that a residence of years in another state in conjugal relationship will supply the intent to change a person's domicile and, in fact, does create a new domicile of choice for him without the operation of his mind. That sometime after January, 1900, some unspecified time, the decedent changed his domicile to New York state. One day is recognized "sufficient, provided the animus exists." Craigie v. Lewin, 3 Curt. 435. Domicile by operation of law is that domicile which the law attributes to a person independent of his own intention. It is consequential and ordinarily results from domestic relations. The removal of the family is not conclusive of a change of domicile, when it is evident by unequivocal acts that the intention is not to make the change. The domicile of the wife and children follow that of the husband. Matter of Bye, 2 Daly, 525, 529. I fail to find, nor has my attention been directed to any reported case in the higher courts of this state which has applied this principle to overcome the exercise of volition and intent.

The state tax commission makes no attempt to controvert the facts established by the executor, and indeed, offered no evidence in contradiction. It relies upon its contention as to the law, that an enforced change of domicile by the very act of long continued residence in conjugal relationship may be created for a person. To paraphrase Justice McLaughlin's statement in United States Trust Company v. Hart, supra, and apply it to the instant case: "Unless one's domicile can be changed for him without his intention, or in spite of his intention, he must be considered at the time of his death as domiciled in Connecticut." Counsel attempts to change the decedent's domicile in spite

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

of his expressed intention. Upon the oral argument, I understood the contention to be, that the residence in New York for many years supplanted the intent and compelled the conclusion in law that he was domiciled in this state; that a residence could not legally continue to exist by intention alone, when a person deliberately lived elsewhere. I agree with the learned surrogate of New York county (Matter of Frick, 'supra) that such a contention is untenable.

"Intent" is still one of the cardinal principles and one of the tests to be applied in ascertaining the domicile of a person. Webster's Dictionary says "intent" means "a determination to do a certain thing." Therefore the combination of residence and intent calls for something to be done by a combined actthe physical presence of the person, coupled with the intent, a product of the mind. Yale v. West Middle School District, 59 Conn. 489. Justice Thomas, in Grim v. Lehigh Valley Coal Co., 171 App. Div. 493, speaking of intent, says: "The ascertainment of intention is usually a delicate process." If the theory of the law contended for by the learned counsel for the commission is correct, then the union of residence and intent is destroyed, because the law will then take away the intent which is created by the mind, and a physical residence will supply that element which the law, as I understand it, has stated, is necessary to create a change in domicile. Animus, it is claimed, may be presumed as matter of law from residence.

The cases in this state do not support the argument that continued residence will after a period cause the word "intent" to be stricken out of the legal definition of how a domicile may be changed, as such definition has been declared in Dupuy v. Wurtz, supra. Matter of Newcomb, supra, 251, says: "This discussion shows what an important and essential bearing