Fulham v. Howe

The opinion of the court was delivered by Royce, Ch. J. Exceptions numbered 1-3 and 6-9, inclusive,, relate to the exclusion of certain evidence offered on the trial by the plaintiff; numbers 1 and 5 to the admission of certain evi [394] ■dence offered by the defendant; and exceptions 10-13 to portions of the charge. I. With regard to the evidence offered and excluded. The offers all were to prove statements made by plaintiff bearing upon the subject of his residence. By the defendant plaintiff offered to prove declarations made by himself in conversation -during the ten or twelve years subsequent to the time he came to Ludlow from New York City, in 1876, to care for his father and during the settlement of the father’s estate. He ■offered to prove “ declarations made by the plaintiff as to where his residence was, as to why he was in this particular town of Ludlow during these years before he was listed, what his business was there, and his declarations as tending to show where in fact ho designed to have his residence and intended it to be.” By himself he offered to prove statements made by him to the listers of the town of Ludlow in relation to his residence at the time he was first called upon by them to return an inventory in the spring of 1881; also the inventories of his father’s estate ■ returned by him in the years 1882-6, -as being declarations of the.plaintiff accompanying an act tending to show his intention ■of retaining his residence in New York. Also by the deposition of Mrs. ICetcham plaintiff offered to prove the understanding between himself and her as to his having a home at her house during the time he was in Ludlow, and statements made by him at any time during their acquaintanceship as to his home and place of residence. This evidence was all excluded. No question is made as to what elements are necessary to constitute domicile. The fact of residence and the intent to make the place of residence the home of the party must concur.' But ■continuous inhabitancy is not necessary. Mere absence, however long continued, so it be for a temporary purpose and with the intention of returning always in mind will not effectuate a ■change of domicile. Sto. Conf. Laws, s. 11. [395] ■ The question presented by the exceptions in this connection is, whether the' declarations detailed therein and referred to above -should have been admitted. for the purpose of showing plaintiff’s intention of retaining his residence in New York, and negativing any presumption that might arise from his conduct of an intention to change it from New York to Ludlow. Declarations made by a party in his own favor are, as a gen•eral rule, in cases of domicile, the same as in all others, inadmissible. The exception to this rule is, that declarations made •contemporaneously with and accompanying some act, which is itself admissible, aud expressive of its character and motive, shall be received. Greenl. Ev. s. 108; Stark. Ev. (Sharswood Ed.) 51. In such cases they are commonly said to constitute a part of the res gestee. * * * Were the statements offered in proof by plaintiff made under such circumstances as to bring them within the exception defined above? *' * * We think not. The questions put to the defendant related generally to conversations between him and plaintiff at any time within the ten. -or twelve years during which plaintiff spent. part of his time in Ludlow, and it was not attempted to connect them with any particular specific act. So of the portions of Mrs. Ketcham’s -deposition covered by the exceptions. The offer was to show -an arrangement made with plaintiff to have his home with her in New York after his leaving there and declarations of his intention at various times, unconnected with any specific act material to the case. His mere continuous presence for a portion of each year in the town of Ludlow cannot be regarded as an act such as would render declarations explanatory of its character admissible. In Wright v. Boston, 126 Mass. 161, plaintiff claimed a domicile in Nahant and offered in evidence a letter from himself to the assessors of Boston, in reply to a printed circular sent him by them, in which he stated that he had been for several years a resident of Naliant; also several deeds in which he was grantor, describing himself as of Nahant; also a will executed by himself in which he is described as of Nahant, All these [396] declarations were held to have been properly excluded. It appeared in evidence that plaintiff spent part of his time each-year in Nahant, but it does not seem to have been suggested, that that was such an act accompanying the declarations as would render them admissible. The court say of the declarations, that they did not accompany any act which was admissible-in evidence. See also to the same effect, Weld v. Boston, id. 166. But there is another objection to the admission of this evidence. It does not appear that the declarations were made-before the controversy arose and when the party had no interest in making them. Ayer v. Weeks, (N. H.) 18 Atl. Rep. 1108. The questions were general, covering the whole period of’ plaintiff’s stay in Ludlow, which appeared to have continued up-to some time in 1887, while this suit is brought on the assessment of 1886. The question of the admissibility of the inventories has already been decided in this case, 60 Vt. 351. II. The testimony on the subject of plaintiff’s church relations was properly admitted. Questions of domicile often require-a minute inquiry into particulars of piivate life. Habits, character, business, social and domestic relations often have to be gone into. Hallett v. Bassett, 100 Mass. 170 ; Thayer v. Boston 124 id. 132. The extent to which this practice shall be allowed in any given case must lie largely in the discretion of the trial court. The jury are to allow to the evidence offered such weight as they deem it entitled to, and unless manifestly frivolous and. immaterial its admission will not constitute reversible error. III. The charge was unexceptionable. The plaintiff was-not entitled to a ruling that, as a proposition of law, failure oí» the part of the defendant to show any particular acts of plaintiff, such as voting, holding office, etc., or declarations made by him, evincing an intent to change his residence from New York to Ludlow, would entitle plaintiff to a verdict. [397] Plaintiff’s actual conduct during the time in question, his staying in Ludlow for a part of each year, the nature of his business there, his church relations, etc., were in evidence, the circumstances of his trips to New York, and the usual length of his stay there were also shown; and all this evidence was submitted to the jury under proper instructions as to their verdict. The questions were all of fact, no proposition of law was involved, and the plaintiff was not entitled to more favorable rulings. We do not find it necessary to go particularly into the exceptions to the charge. Judgment affirmed.