Barron v. City of Boston

Decision Date04 January 1905
Citation187 Mass. 168,72 N.E. 951
PartiesBARRON v. CITY OF BOSTON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Whipple Sears & Ogden and Alex. Lincoln, for plaintiff.

Arthur L. Spring, for defendant.

OPINION

KNOWLTON C.J.

This is an action to recover back a tax assessed upon the personal property and poll of the plaintiff on May 1, 1901. The first question is whether he was a resident of Boston at that time. He owned a house in Boston, which he occupied a part of the time. He also owned a large estate in Cohasset, consisting of a dwelling house containing 20 rooms, and a farmhouse stables, and a cowhouse. This he occupied a considerable part of the time in each year. Early in the year 1900 he was a resident of Boston, but he stayed with his family at the house in Cohasset from May to December in that year. The judge who heard the case found as follows: 'That in the fall of 1900 Mr. Barron, having formed the intention of then and there becoming a resident of Cohasset, and while living in his house at Cohasset, and before his return to Boston gave notice to the assessors of the city of Boston that he was a resident of Cohasset; that Mr. Barron, some time after this notice was given--in December--moved to his Boston house, and was not in Cohasset again until June, but his intention of remaining a resident of Cohasset continued uninterrupted; that he left for abroad in April, and, before leaving, notified his family to be in Cohasset by the 1st of May, but that, as a fact, they were not there until shortly after the 1st of May. I further found as a fact that Mr Barron did not notify the assessors of the town of Cohasset of his having become a resident there until the summer, in June, 1901, and that Mr. Barron had not carried out his intention of becoming a resident of Cohasset by any sufficient overt act; and on these facts I ruled and found the plaintiff was a resident of the city of Boston on May 1, 1901, and not of Cohasset.'

On this finding of facts, the ruling should have been that he was a resident of Cohasset. In Viles v. Waltham, 157 Mass 542, 32 N.E. 901, 34 Am. St. Rep. 311, the law as to domicile is stated as follows: 'To acquire a domicile, there must be residence in a place, and an intention to make that place one's home.' The only act, apart from the intention of the actor, which is absolutely necessary to the acquisition of a domicile in a city or town, is that at some time the person must go to the place and take up his abode there. If he is abiding there while his domicile is elsewhere, and if while so abiding he forms an intention immediately to make it his home permanently or for an indefinite period, and continues to abide there in pursuance of that purpose, he thereby acquires a new domicile. There is no requirement of law that he shall give notice to assessors or to anybody else. The act of going from one place to another, or some other act indicating a change of residence, is often referred to as a foundation for the introduction in evidence of the person's declarations as a part of the res gestae. Declarations accompanying such acts are often important evidence of intention, bearing upon the question whether there was a bona fide change of residence. See Viles v. Waltham, ubi supra. In McConnell v. Kelly, 138 Mass. 372, Chief Justice Morton states the rule as follows: 'In determining whether there has been such a change from one place to another, the test is to inquire whether he had in fact removed his home to the latter place with the intention of making it his residence permanently or for an indefinite time. If he has, he loses his old domicile, and acquires a new one, with all its rights and incidents.' In Thayer v. Boston, 124 Mass. 132-145, 26 Am. Rep. 650, Mr. Justice Colt quoted from Lyman v. Fiske, 17 Pick. 231-234, 28 Am. Dec. 293, a part of the definition of domicile, as follows: 'It is manifest, therefore, that it embraces the fact of residence at a place, with the intent to regard it and...

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