Merrill's Heirs v. Morrissett

SOMEIFVTLLE, J. — It is manifest, and must be admitted, that no objection can be successfully urged to the probate of the will of the decedent, Mrs. Sarah B. Merrill, if she was an “inhabitant” of the county of Montgomery at the time of her death, within the meaning of section 2304 of the present Code. This was a question of fact, which the Probate Court found specifically by its judgment to be affirmatively true, and we are called upon to review the correctness of this finding. The cause having been tried and decided by the court below on testimony reduced to writing, the finding is presumed to be correct, and, like the decree of a chancellor upon facts, will not be reversed, unless we are clearly convinced that it was erroneous, or, what is the same thing, unless there is a decided preponderance of the evidence against the conclusion attained. Foods Ex'r v. Garner's Adm'rs, 70 Ala. 443, 447 ; Eureka Co. v. Edwards, 71 Ala. 248 ; Warren v. Jones, 68 Ala. 449. The word inhabitant has been defined to be “ one who has his domicil in a place, — one who has an actual fixed residence in a place.” — 1 Bouv. Law Dic. (1885), p. 798. In Long v. Brown, 4 Ala. 630, it was defined as “ a resident, or dweller in a place, in opposition to a mere sojourner, or transient person.” We take it that the word inhabitant, as used in the foregoing section of the Code, having reference to testamentary cases, is used as a synonym for domiciliary resident, or one who has his domicil in a given county. The word domicil may be defined to be a residence at a particular place, accompanied by an intention, either positive or presumptive, to remain there permanently, or for an indefinite length of time. — Phillim. Inter. Law, 44; Ringgold v. Barley, 59 Am. Dec., note, p. 111. The definition given by Judge Story is not essentially different, and has been often approved. “That place,” he says, “is properly the domicil of a person in which his habitation is fixed, without any pt'esent intention of removing therefrom.” — Story Conf. Laws, § 43 ; 2 Williams on Ex’rs (Perkins’ Ed.) § 1629 ; Putnam v. Johnson, 10 Mass. 501. It embraces not only the fact [438] of resideuce at a place, but the animus manendi, or intent to regard and make it one’s home. — Murphy v. Hurst, Miller & Co., 75 Ala., and cases cited ; Lyman v. Fiske, 28 Am. Dec. 293. And where a person has actually removed from his original domicil to another place, with the intention of remaining there for an indefinite time, and as a place of fixed present abode, the latter place is regarded' as his domicil of choice, “ notwithstanding,” as observed by Mr. Story, “ he may entertain a floating intention to return at some future period.” Story’s Confl. Laws, § 46; Ringgold v. Barley, supra; 59 Am. Dec. 115, note. There can be ho change of domicil without a concurrence of both act and intent, and the question of intent may be solved by reference to both conduct and declarations. — Lyman v. Fiske, supra; Frost v. Brisbin, 32 Am. Dec. 427-429. And adoinicil of origin, when once ascertained, must always be considered as retained until another is acquired. Talmadge v. Talmadge, 66 Ala. 199 ; State v. Hallett, 8 Ala. 159. Every person is presumed, moreover, to have a domicil somewhere; and although he may, in some instances, have a domicil in one place, and a residence in another, or, as is sometimes said, two residences for the purposes of business ; yet he can not have more than one domicil at the same time, for the purpose of succession. — Gilmer v. Gilmer, 52 Me. 165 ; 2 Williams on Ex’rs (Perkins’ Ed.) § 1630 ; 2 Kent Com. (12th Ed.), 431, note (c) ; Ringgold v. Barley, 59 Am. Dec. 111, note. And the casual death of a person at a given place very clearly can have no tendency to show that his domicil was there, unless the fact stands alone and unexplained by any rebutting evidence. It is the fact of such person being there at all, and not his death, which may sometimes constitute a prima facie case of domicil. — Somerville v. Somerville, 5 Ves. Jr. 750. It is generally conceded to be difficult, if not impossible, to lay down any fixed or infallible rule, by which the domicil of a party may be determined in all cases. As observed by Chief Justice Shaw, in Lyman v. Fiske, 17 Pick. 231 (s. c., 28 Am. Dec. 294), “ it is often a question of great difficulty, depending upon minute and complicated circumstances, leaving the question in so much doubt that a slight circumstance may turn the balance.” It must generally be determined upon all the particular facts and circumstances of each particular case. — Thorndike v. Boston, 1 Met. 245. When a man's domicil is the subject of inquiry, the scale has often been made to turn by a single fact, — as, that he exercised the right of political franchise in a particular State or county, or had his business establishment located in a particular city or town, or permitted his family to permanently reside in a certain place or municipality. [439] The decedent in the present case being a female, without any family dependent upon her for support, we are left without the benefit of-either of these potent considerations. We are compelled, therefore, to direct our attention to other facts which may serve to illustrate the conduct of the deceased, and to throw light upon the question of her intention. We have examined the testimony with this view, and confess that we have found the case one of great complexity. This is attributable to the fact that the conduct of the testatrix is exceedingly ambiguous in meaning, and her declarations of intention very contradictory and vacillating. She is shown to have spent the twenty-three years previous to her death, which occurred in February, 1884, in five different States, — Mississippi, New York, Illinois, Alabama, and Georgia ; her habits during all this time seeming to be constantly migratory, at least after the year 1874, when she removed 'from Jackson, Mississippi. She owned no real estate, or homestead, upon which she resided at any time, but spent her time with her children, and boarding. Iler property consisted of money loaned, some of which was in Georgia, and some in Illinois. Judging from her conduct, we might safely conclude that she was a more temporary resident of New York and Illinois, and that she had probably abandoned her former domicil in Mississippi. But whether she resided in Alabama or Georgia, may justly be considered a question of grave doubt. There is as little inference to be drawn from her declarations, which appear, as we have said, to be exceedingly contradictory, showing much vacillation of purpose. While in Georgia, whither she went in July, 1883, and where she died in February, 1884, she is shown to have written to her friends at Montgomery, Alabama, at one time declaring her intention not to return, and at another the contrary. So, she is proved also, while there, to have had herself registered at a hotel as from Mississippi. It is undoubtedly true, that the declarations of a deceased person, as to his or her domicil, are admissible to illustrate intention, and, when free from contradiction, often repeated, and in harmony with the conduct of the party, they are frequently deemed conclusive. — Pennsylvania v. Ravenel, 21 How. (U. S.) 694. But, when conflicting and contradictory, they are, of necessity, unsatisfactory, and are entitled to but little weight as evidence. — Smith v. Croom. 7 Fla. 82, 158. So, mere “ vague, unexecuted expressions of intent ” can avail but little in the determination of this question. — 2 Whart. Ev. § 1097. Under these circumstances, we are not inclined to disturb the conclusion reached by the probate judge, that the decedent was an inhabitant of Montgomery county. We are not clearly convinced that this conclusion is erroneous, or that there is a de [440] cided preponderance of the evidence against it. The deceased is shown to have spent the most of her time in the city of Montgomery, during the last few years of her life, where she was employed a part of the time teaching school, and where one of her daughters, the contestant in this cause, resided. When she departed for Georgia, stopping a few weeks at Opelika, she evidently at that time manifested no intention to change her domicil to that State. She wrote to her executor, two months afterwards, that she expected to return very soon, and also wrote a few weeks before her death, to ascertain upon what terms she could engage board at the same hotel where she had previously staid, and declaring to her landlady that she was “ home-sick.” It is true that, during the same period, she was making contradictory declarations of her future intention, which tended to show that she entertained a purpose, somewhat vague at times, of making her residence at Columbus, Georgia. There is one fact just here, which, to our apprehension, possesses considerable significance. It is the circumstance of preparing her last will and testament, and appointing her.executor in the county of Montgomery, Alabama. This was done in July, 1883, prior to her departure for Georgia. Two months afterwards, in the latter State, she had a codicil to this instrument prepared, and transmitted to her executor, announcing her expectation of very soon returning to Montgomery. In this will she describes herself as “ now of Montgomery, State of Alabama.” Recitals of domicil or place of residence, in wills and deeds, are generally regarded as not conclusive, but only prima facie, and capable of being rebutted by proof to the contrary. — Whart. Conf. Laws, § 61; Ennis v. Smith, 14 How. (U. S.) 400. Such recitals are certainly entitled to some weight, in doubtful cases, when made in a will deliberately prepared ; and their probative force is increased by the appointment of an executor, for the declared purpose of executing a testator’s will, in the same jurisdiction of which he describes himself to be a resident, whether expressly or by clear implication. One who casually dies anywhere, may hastily prepare his will, even when almost in artículo mortis. But persons, especially when exercising great deliberation, are not accustomed to appoint executors, to administer upon their estates in foreign jurisdictions and places distant from their domicils. We deem such appointment, under the circumstances of this case, to be a decisive fact, sufficient in itself to turn the scale. An inference of oue’s domicil is often drawn from recitals in wills. — Whart. Corn. Amer. Law, § 254. In the case of Lord Somerville’s estate, the question being whether the domicil of the decedent was in Scotland or England, the master of the rolls said : “ Some time before his death, he talked of making [441] his will in Scotland. That ci renin stance is decisive, that his death in England was merely casual, not from intention.” Somerville v. Somerville, 5 Ves. Jr. (Sumner’s Ed.) p. 750, 789. The case, we may add, of course becomes stronger, where he goes further, and actually executes such purpose by making his will and appointing au executor. We are constrained, under the influence of these views, not to disturb the judgment of the Probate Court in its finding upon this question of fact. The other questions raised we need not consider, as the con- • elusion reached above renders it unnecessary. Judgment affirmed. Crouton, J. not sitting, having been of counsel.