Boyd's Ex'r v. Commonwealth

• Citation: 149 Ky. 764,149 S.W. 1022
• Parties: BOYD'S EX'R v. COMMONWEALTH.
• Decision Date: 10 October 1912
• Court: Court of Appeals of Kentucky

149 S.W. 1022

149 Ky. 764

BOYD'S EX'R v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 10, 1912

Appeal from Circuit Court, Laurel County.

Action by the Commonwealth of Kentucky against R. Boyd, continued on his death against his executor. From a judgment for the Commonwealth, the executor appeals. Affirmed.

J. W Alcorn, of Stanford, for appellant.

E. H Johnson, of London, for the Commonwealth.

LASSING J.

Robert Boyd had been for many years a resident of Laurel county, Ky. On the 9th of September, 1903, he stated to his friends that he intended leaving Kentucky and making his home thereafter in Texas. In furtherance of his expressed intention, he left his home, went to Louisville, from there to St. Louis, where he arrived on the 11th of September, and from that point traveled in a leisurely way toward his destination Bonham, Tex., which point he reached on the 24th of September. He remained in Texas until some time in the late fall or early winter, and, not being in good health, returned to Kentucky. He was registered as a legal voter of London Laurel county, some time in October, 1904. His property was listed for taxation in the county of Laurel in the falls of 1904, 1905, and 1906, and he died in November, 1906. He frequently expressed an intention of returning to Bonham, Tex., though he never did so. He did not list his property for taxation in the fall of 1903, prior to going to Texas; and the state, through one of its revenue agents, sought to compel him to do so. In the litigation which followed, it appeared that he was the owner of personal property of the value of $35,000 on September 15, 1903. The trial judge in the county court found, from the evidence, that he was not a resident of Bonham, Tex., but of Laurel county, Ky. and hence was answerable to the state for taxes upon this unlisted property. He appealed from the judgment of the county court; but before the case was tried in the circuit court he died. The litigation was continued against his executor, and upon final hearing the chancellor was of opinion that the findings in the county court were correct, and entered a judgment accordingly. The executor appeals.

Several questions are raised upon the method of procedure, etc.; but the real, and, in fact, the only, question of merit before us upon this appeal is: Was Robert Boyd on September 15, 1903, the date upon which, under the statute then in force, personal property in this state was subject to taxation, a resident of Laurel county, Ky? If he was, then it is conceded that his estate is liable for the taxes on the amount of personalty the court found he should be assessed with. If, upon the other hand, he was upon that date a resident of Bonham, Tex., the judgment should be reversed.

As stated, prior to September 9, 1903, he had expressed an intention of leaving Kentucky and making Texas his home. He had arranged with a relative there about lodging, etc., and in furtherance of that expressed intention left Kentucky on the 9th of September, but did not arrive at his destination in Texas until September 24th, or nine days after the date upon which the property should have been listed for taxation in Kentucky, if liable for taxation here. Upon the 15th of September, he had not reached the border of the state of Texas. So we are confronted with the naked question: Did his determination to make his home in Texas and his leaving Kentucky, for the purpose of going there, have the effect of giving him a domicile in that state before he actually reached it and settled there? If it did, then he was not, on the 15th of September, a resident of Laurel county; for no principle is better settled than that one cannot have two domiciles at one and the same time. It is also true that every one must have, at all times, a legal residence somewhere.

The place of one's birth is his domicile of origin. During his minority, he is without power to change this, though it may be changed for him by his parent, guardian, or the person having legal custody of him. After his majority, he is free to change it, and when so changed the new domicile is termed "domicile of choice." One may have several homes but can have only one legal residence. In this age of commercial and social activity, it is not unusual for one, whose circumstances in life permit, to live in the far south in the winter, in the north in the summer, and at some intermediate point during the other seasons. Thus he has three homes, only one of which can be his legal domicile; and this is not changed, but remains the same until he elects to surrender his legal domicile and adopt another in its stead. This intent to change one's domicile must, of course, in order to make it effectual, be executed; that is, he must take up an actual...