[8] In any event, the proper practice in the case of an unauthorized motion is to strike it from the files. (People v. Center, 61 Cal. 191.) In the matter before us the motion on which this proceeding is based was the first which stated sufficiently the grounds for dismissal under the five-year provision of section 583. It was heard on the merits. The grounds upon which the denial was made are not set out further than in the statement of the court according to the petition here that it "had no jurisdiction to grant the same." Respondent's answer alleges that the motion was denied on the ground, "among others," that prior motions had been made in violation of the provisions of section 182 of the Code of Civil Procedure.

In view of the obvious fact that this motion was heard on its merits, and the extreme vagueness of other details relating to the previous motions, we prefer to dispose of it upon its merits here.

As heretofore pointed out, there has been a clear and unjustifiable failure on the part of the plaintiffs to bring this pending action to trial within five years after answer filed, and the motion to dismiss should have been granted.

A peremptory writ of mandate requiring the superior court of the county of Napa, and the judge thereof, to enter an order dismissing said action as to these petitioners is granted.

Shaw, J., Wilbur, J., Shurtleff, J., Lennon, J., Lawlor, J., and Angellotti, C. J., concurred.

[L. A. No. 6183. In Bank.-September 16, 1921.]

JOHN S. CHAMBERS, as Controller, etc., Respondent, v. JULIA A. HATHAWAY, Respondent and Appellant; UNION TRUST & SAVINGS BANK OF PASADENA, as Administrator, etc., Respondent.

[1] RESIDENCE QUESTION OF INTENT.-Where a person has two dwellings in different places and resides a part of his time in one place and a part of the time in another alternately, the question which of the two places is his legal residence is almost altogether a question of his intent.

[2] EVIDENCE-REGISTERING AS VOTER-AFFIDAVIT-DECLARATION.-An affidavit made for the purpose of registering as a voter in which affiant states that his residence is at a certain place constitutes a declaration by affiant that at that time his legal residence is in the place indicated, and if unexplained and there is no other evidence of a subsequent change of intent, it would be sufficient to uphold a finding to that effect in a proceeding by the state controller, under the Inheritance Tax Act, for the collection of inheritance tax; but where the evidence shows that after making the affidavit he formed a decided intention to have his residence at his former home in a different state which he used repeatedly as a residence, the union of act and intent as required by the Political Code was sufficiently manifested to establish his residence in the latter place. [3] APPEAL-PROCEEDING FOR COLLECTION OF INHERITANCE TAX-INHERITANCE TAX ACT.-There is a right to appeal from the deci sion in a proceeding under the Inheritance Tax Act (Stats. 1913, p. 1078) by the state controller for the determination of liability to taxation under the act.

APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Rives, Judge. Reversed.

The facts are stated in the opinion of the court.

Anderson & Anderson and W. W. Wight for Appellant.

John W. Carrigan, Edwin H. Pennock, James L. Atteridge and Robert A. Waring for Respondent.

SHAW, J.-This is a proceeding by the state controller, under the Inheritance Tax Act, for the collection of inheritance tax alleged to be due upon the estate of Frederick N.

Finney, deceased. Julia A. Hathaway is interested in said. estate as one of the executors of the will of said decedent under an appointment by the court of probate in the state of Wisconsin, and also as a beneficiary under his will. She alone has appealed from the decree of the court below in favor of the controller.

The complaint alleges that Finney died the owner of notes, bonds, and stocks of the value of one hundred and thirty-eight thousand three hundred dollars, and other property, and that at the time of his death he was a resident of Los Angeles County, California. The answer denied the allegations as to the residence of the decedent and averred that at the time of his death he was a resident of Milwaukee, Wisconsin. Upon this issue the court below decided in favor of the plaintiff. The sole point for consideration upon this appeal is the question whether the decision on that issue is supported by substantial evidence.

The rules for determining the place of residence of a person are thus stated in the Political Code (sec. 52): "Every person has, in law, a residence. In determining the place of residence the following rules are to be observed: "1. It is the place where one remains when not called elsewhere for labor or other special temporary purpose, and to which he returns in seasons of repose;

"2. There can only be one residence;

"3. A residence cannot be lost until another is gained

;

"7. The residence can be changed only by the union of act and intent."

Clauses 4, 5, and 6 of the above section have no application to the present case.

[1] Where a person has two dwellings in different places and resides a part of his time in one place and a part of the time in another alternatively, the question which of the two places is his legal residence is almost altogether a question of his intent. "If a party has two residences, that will "e esteemed his domicile which he himself selects or deems to be his home, or which appears to be the center of his affairs, or where he votes or exercises the rights and duties of a citizen." (9 R. C. L. 558; see, also, 19 Corpus Juris, p. 401.),

Upon the trial in the lower court the parties stipulated that Finney was and had been a resident of the state of Wisconsin for many years prior to 1907, and that from that time until his death on March 13, 1916, he passed a part of each year in South Pasadena, California, and a part of each year in Milwaukee and the east, usually spending from October or November to May or June in South Pasadena and the remainder of the time in Milwaukee and the east. The evidence shows that he built a house of fourteen rooms in Milwaukee, Wisconsin, in the year 1884 for his permanent dwelling, and that he continuously maintained that house, having therein three or more servants and all of his furniture and a large number of curios and other articles which he had collected in his numerous travels; that his wife died in 1899, and that thereafter during the remainder of his life his son and family remained in the house with him and took care of the same, but that he paid all the expenses of the establishment; that when in Milwaukee he lived in that house. Upon coming to California in the fall of 1907 he rented a furnished house for the winter and lived in it with a Miss Renold, who had been his housekeeper in Wisconsin. In 1908 he came again and rented a furnished house, which was kept for him by Miss Renold. During that visit, some time in 1909, she purchased a house, in which she continued to reside thereafter until her death in August, 1915. During his subsequent sojourns in California he lived in her house. In 1912, because of her financial distress, he purchased the house from her and continued to own the same until his death.

It is apparent, therefore, that the facts make a case where a person has two residences, either of which might be his lawful residence, according to his intention, and that the question which one was his lawful residence at the time of his death depends altogether upon his intention regarding them. Under the rule above stated, if his intent was to have his Milwaukee home as his residence, that was the place of residence at his death. If his intent was to make his California house his lawful residence, that was his lawful residence at the time of his death.

We think it must be conceded that upon all the facts in the case his intent, so far as it is to be deduced from his acts and conduct, shows that the Milwaukee residence was

his real home. It was a large establishment; he had built and kept it for a permanent home, he requested his son and wife to live in it and keep it for his use, and he had paid the expenses of maintaining it, even purchasing a farm near the city, on which a tenant lived, who produced milk and vegetables for the family use. His business headquarters were in Milwaukee. He kept safe deposit boxes there in which he stored all his stocks and bonds and other valuable papers. His son or his secretary had access thereto and in his absence they cut off the coupons from the bonds, received the dividends on his stocks, and deposited the same to his bank account in Milwaukee banks. He kept in a Cali

fornia bank only such funds as were required for his expenses while living there. All of his investments were made from Milwaukee and during his absences the business was carried on by his son and secretary. He had a safe deposit box in California, but kept there only such papers as he desired to have with him while he remained away from his main place of business. Under the circumstances of the case the fact that he lived in California during the greater portion of each year is of no substantial significance with respect to the question of his intent. (19 Corpus Juris, p. 403.) The evidence shows that in 1907 he decided to spend the winters in California because the severity of the winters in Wisconsin was detrimental to his health and comfort in his declining years. It was for this reason he came and for this reason that he continued to come yearly thereafter. The fact that he rented houses in California and that he brought and kept there during his stay his two driving horses and that he also had an automobile there was of small significance, considering his wealth and station. He was a man who was given to travel, even in his later years. In the year 1912, being then of the age of eighty, he spent two months traveling in Europe. His last illness occurred while he and his daughter were on a trip to Honolulu, and he died in San Francisco shortly after his return therefrom. All these circumstances go to indicate that his sojourn in California was not in pursuance of a design to change his former residence.

The only direct evidence of his intent on the subject is found in certain declarations shown to have been made by him. That upon which the plaintiff relies, and which is