In Re the Estate of Cullinan

Denny, C.J. The only question for determination on this appeal is whether or not the finding of the jury to the effect that Mrs. Hallie M. Cullinan, at the time of her death on 31 October 1960, was domiciled in Granville County, North Carolina, is supported by competent evidence. The parts of G.S. 28-1 applicable to the facts in this case are as follows, including subsections 1 and 4: “The clerk of the superior court of each county has jurisdiction, within his county, to take proof of wills and to grant letters testamentary, letters of administration with the will annexed, and letters of administration, in cases of intestacy, in the following cases: (1) Where the decedent at, or immediately previous to, his death was domiciled in the county of such clerk, in whatever place such death may have happened. * * *(4) Where the decedent, not being domiciled in this State, died in the county of such clerk, leaving assets in the State, or assets of such decedent thereafter come into the State.” Our decisions are to the effect that if the testatrix herein was not domiciled in Granville County, North Carolina, at the time of her death, the letters testamentary issued in this proceeding are absolutely void. Collins v. Turner, 4 N.C. 541; Johnson v. Corpening, 39 N.C. 216, 44 Am. Dec. 106; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284. It follows that, if the testatrix was mot domiciled in Granville County, North Carolina, at the time of her death, since she died in *631 Watts Hospital in Durham, North Carolina, the Clerk of the superior Court of Durham County is empowered by the above statute to probate the will of the testatrix if properly presented for probate, and to issue valid letters to the presently acting executrix of the last will and testament of Mrs. Cullinan. G.S. 28-1; In re Franks, 220 N.C. 176, 16 S.E. 2d 831; Vance v. R.R., 138 N.C. 460, 50 S.E. 860 “Domicile is of three sorts • — • domicile by birth or of origin, by choice, and by operation of law. The first is the common case of the place of birth, domicilium originis; the second is that which is voluntarily acquired by a party, proprio motu; the last is consequental, as that of the wife arising from marriage.” Reynolds v. Cotton Mills, supra. Therefore, when Mrs. Cullinan married Charles H. Cullinan in 1927, his domicile became her domicile by operation of law, and continued so for the next eighteen years or until his death in 1945. It clearly appears from the record that whereever his domicile was it w-as never in North Carolina. Consequently, if Mrs. Cullinan was domiciled in North Carolina at the time of her death, she had to established such domicile by choice after her husband’s death in 1945. Her domicile was not automatically re-established in North Carolina as the result of her husband’s death. In 17A Am. Jur., Domicil, section 5, page 199, it is said: “In a sense ‘home’ is synonymous with ‘domicile.’ Indeed, it has been said that no other word is more nearly synonymous; ‘home’ is the fundamental idea of domicil. However, ‘home’ and ‘domicil’ are not always of equal meaning. They may, and generally do, mean the same thing; ■but a home may be relinquished and abandoned while the domicil of the party, upon which depend many civil rights and duties, may in legal contemplation remain. Incidental references to a place as ‘my home’ are not conclusive against the existence of the domicil of the declarant in another place.” Ordinarily, a domicile continues and does not necessarily require actual residence to retain it after it is once acquired, but actual residence is required to establish it. In Horne v. Horne, 31 N.C. 99, this Court said: “The term domicil, in its ordinary and familiar use, means the place where a person lives or has his home; in a large sense, it is where he has his true, fixed and permanent home, to which, when absent from it, he intends to return, and from which he has no present purpose to remove. Two things, then, must occur to constitute a domicil: first, residence, and second, the intention to make it a home — the fact and the intent.” In the case of In re Martin, 185 N.C. 472, 117 S.E. 561, Stacy, C.J., said: “Domicile is a question of fact and intention. Hence, to effect *632 a 'change of domicle there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence at another place, or within another jurisdiction, coupled with the intention of making the last acquired residence a permanent home. The Court, in Mitchell v. United, States, 88 U.S. 350, 22 L. Ed. 584, said: “A domicile once acquired is presumed to continue until it is shown to have -been changed. * * To constitute the new domicile two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains. * These principles .are axiomatic in the law upon the subject.” There is no evidence in this record tending to show that Mrs. Cul-linan ever resided in North Carolina after 1945 with the intent to establish her domicile in this State and to abandon her former domicile. In fact, there is no evidence tending to show that she ever came to North Carolina after 1945 except for the following purposes: (1) to visit her mother; (2) on business or for family conferences; and (3) to enter Watts Hospital during her last illness. After her husband’s death, she continued to reside in the apartment where they had lived for many years until 1957, when she moved to another apartment at 4117 Davis Place, N. W. In her last will and testament which she executed on 18 March 1960, in Durham, North Carolina, she said: “I, Hallie M. Oullinan, of 4117 Davis Place, N. W., Washington, D. C., being of legal age and sound mind and memory, do make, publish and declare this my last will and testament * * A” The further fact that she may have expressed an intent or desire to return to North Carolina at some future time, and that she was permitted to vote by absentee ballot in North Carolina in 1950 and 1952, were not sufficient to establish her domicile in Granville County, North Carolina, unaccompanied by actual residence there. Burrell v. Burrell, 243 N.C. 24, 89 S.E. 2d 732. The evidence in the hearing below is insufficient to sustain an affirmative answer to the issue submitted to the jury, 'and the judgment based thereon is reversed and this cause is remanded for further proceeding in accordance with this opinion. Remanded.