Levin Estate

Burke, J., Louis Levin, the decedent, died on February 6, 1962, in Hahnemann Hospital, Philadelphia, Pennsylvania, leaving a writing dated September 29, 1961, purporting to be his last will and testament. In the said writing he named David Brecher and Benjamin Cohen as executors. The said writing was lodged with the register of wills, at the instance of Maurice J. Klein, Esq., the — 204 — scrivener. The other named executor, Benjamin Cohen, refused to join in the petition for probate of the said writing and the issuance of letters testamentary. Brecher then caused the issuance by the register of wills of a citation, directed to Benjamin Cohen, to show cause why the will should not be probated in Philadelphia County. Cohen retained counsel who entered his appearance de bene esse, and filed an answer resisting probate, alleging that decedent died a domiciliary of Atlantic City, New Jersey. The register of wills, after hearings, entered a decree dismissing the petition, finding as a fact that decedent at the time of his death, was domiciled in New Jersey, which precluded him from entertaining a petition for probate of the proferred writing, and he entered a decree refusing probate. Ethel Levin, surviving spouse of decedent, filed an appeal from the register’s decree refusing probate. The appeal was referred to Judge Lefever as a hearing judge, who heard the case on its merits, and by stipulation of counsel it was agreed that the matter would be tried in the orphans’ court on the transcript compiled by the register of wills and argument thereon. The learned hearing judge entered his decree, dated April 2, 1968, in which he found as a fact and concluded as a matter of law, that decedent was not domiciled in Philadelphia, Pennsylvania, at the time of his death, and dismissed the appeal from the decree of the register. His adjudication specifically passed over the procedural question of the citation issued by the register and resolved the case on its merits. At the time of his death, decedent was 78 years of age, and it is not disputed that he had continuously resided in Philadelphia from 1913 to November 22, 1960, when he sold the cooperative apartment which he had occupied with his wife, Ethel Levin, at 2101 Walnut Street, Philadelphia. Decedent, on October 8, — 205 — 1960, executed a lease on an unfurnished apartment in Warwick Apartments, Atlantic City, New Jersey, for a period of 19 months, where he resided at the time of his death. The exceptant takes the position that decedent never acquired a New Jersey domicile, but was domiciled in Philadelphia, Pennsylvania, by reason of his continued patronage of Philadelphia banks; the location of his safe deposit box in Philadelphia; his continued retention of a Philadelphia lawyer and his remaining as a patient in Philadelphia hospitals under the care of Philadelphia physicians. She further attempts to negate the acquisition of a New Jersey domicile, citing his absences from Atlantic City during a visit to Miami Beach, Florida, from March 10, 1961, to May 19, 1961, and periods of residence with his daughter in Montgomery County, Pennsylvania. On one of his periods of residence with his daughter in 1961, he spent three months during which time he received medical treatment and was hospitalized in Hahnemann Hospital, Philadelphia. During his lifetime period in 1962 (January 1 to February 6) he was in Atlantic City for only two and one-half days, and during the remaining time he lived with his daughter in Montgomery County, during which time he was a patient in Hahnemann Hospital where he died. Several witnesses testified as to declarations made by decedent. The resident manager of the cooperative apartment at 2101 Walnut Street, where they had previously lived, said that decedent had expressed to him on several occasions, that he regretted leaving the apartment, but never made an application to return, as required by the rules of the apartment. Other witnesses related decedent’s dissatisfaction with the climate in Atlantic City, and also with the apartment where they resided, and that he had inspected other — 206 — apartments in Atlantic City with a view to cancellation of his lease. Decedent’s counsel testified that in drafting the submitted writing, without any suggestion by decedent, he omitted a designation of domicile because decedent told him that the climate in Atlantic City was not agreeable and “he intended to return to Philadelphia.” A certified public accountant, who prepared both Federal income and personal property tax returns for decedent, testified that in 1960 or 1961 he changed decedent’s address on the tax records from Philadelphia to Atlantic City. A real estate and insurance broker said that, at decedent’s request, he changed his stated residence on insurance policies to Atlantic City. Decedent’s wife, the exceptant, upon being admitted to the University of Pennsylvania Hospital on July 7, 1961, gave her address as Warwick Apartments, Atlantic City, New Jersey. The medical records of the American Oncologic Hospital in Philadelphia revealed that decedent received treatment as an out-patient, and his residence was given as Warwick Apartments, Atlantic City, as of October 30, 1961. The chief assessor of the Personal Property Tax Division of the City of Philadelphia testified that returns of decedent were filed from 1953 to 1960, each of which gave his address as Philadelphia. No 1961 return was filed and the division was advised by decedent’s accountant that he was a resident of the Warwick Hotel, Atlantic City. The medical records of Hahnemann Hospital, Philadelphia, establish that decedent’s address, given at the time of his admission on October 22, 1961, was the Warwick Apartments, Atlantic City. A representative of the Philadelphia Registration Commission testified that its records show that dece — 207 — dent registered as a voter from 2101 Walnut Street, Philadelphia, Pennsylvania, on January 20, 1958, and had voted at primary and general elections in 1958, 1959 and 1960, casting his last ballot from the said address on November 8, 1960. After the 1960 general election, a canvass was made of the list of registered voters at 2101 Walnut Street, which disclosed that decedent was no longer a resident at that address. Communications were twice sent to him at the address of his registration, and when no answer was received, he was stricken from the list. From an examination of the register of will’s transcript, it is abundantly clear that the testimony of exceptant’s witnesses, ascribing to it the greatest possible weight, falls far short of meeting the test set down by our Supreme Court in domicile cases, viz: facto et animo. See Dorrance’s Estate, 309 Pa. 151; Publicker Estate, 385 Pa. 403. The cumulative effect of such testimony cannot rise to the level of an intention to abandon decedent’s Atlantic City domicile, but is limited to declarations of his dissatisfaction with the Atlantic City climate and the facilities supplied by the Warwick Apartments. Any inclination to equate the testimony to an intent is controverted by his expressed interest in obtaining other living quarters in Atlantic City. In Publicker, supra, the Supreme Court laid down the factors required to effect a change of domicile as (1) physical presence in the place where domicile is alleged to have been acquired, and (2) an intention to make it his home without any fixed or certain purpose to return to his former place of abode. The facts in the instant case bear a striking resemblance to those in Publicker. Certainly, residences in Pennsylvania for short periods of time, attended by medical care, cannot supply the physical presence and intent to permanently establish a home, as required by our decisional law. — 208 — The record fully portrays footprints in the sand, which are more articulate than the spoken word, and establish that decedent, on November 22, 1960, abandoned his Philadelphia domicile and immediately acquired a new domicile in Atlantic City, New Jersey. The opinion of the learned hearing judge, finding as a fact and concluding as a matter of law, that decedent was not domiciled in Pennsylvania at the time of his death, is supported by competent evidence. For the foregoing reasons the exceptions are dismissed. Thomas S. Weary, William H. S. Wells, Samuel W. Morris and Minturn T. Wright, III, for exceptants. J. Montgomery Forster, Harold D. Greenwell and Wm. Chas. Hogg, Jr., contra.