Brafman v. Brafman

• Decision Date: 09 January 1924
• Citation: 125 A. 161,144 Md. 413
• Parties: BRAFMAN v. BRAFMAN ET AL.
• Court: Maryland Court of Appeals

125 A. 161

144 Md. 413

BRAFMAN v. BRAFMAN ET AL.

Court of Appeals of Maryland

January 9, 1924

Appeal from Orphans' Court of Baltimore City.

Petition by Mary Brafman to revoke letters of administration granted to Benjamin Brafman and others, on the estate of Jacob Brafman, deceased. Petition dismissed, and petitioner appeals. Affirmed.

Argued before BOYD, C.J., and THOMAS, PATTISON, URNER, STOCKBRIDGE ATKINS, and OFFUTT, JJ.

Elizabeth F. Vilkomerson, of New York City, for appellant.

Julius H. Wyman and Sidney A. Goodman, both of Baltimore, for appellees.

PATTISON J.

This is an appeal from an order of the orphans' court of Baltimore City dismissing the petition of the appellant, Mary Brafman, in which she asked that the letters of administration granted out of said court to the appellees upon the personal estate of her deceased husband, Jacob Brafman, who died in Atlantic City on August 28, 1922, be revoked and the appellees be enjoined "from making any disposition of the funds held by them in said estate."

The question presented by this appeal is: Did the orphans' court of Baltimore City have jurisdiction to grant letters of administration upon the estate of Jacob Brafman? And its determination depends solely upon the question whether he, at the time of his death, was a resident of the city of Baltimore.

The word "residence," as here used, means the fixed or permanent home or domicile of the deceased, as distinguished from a temporary abode. Whiting v. Shipley, 127 Md 117, 96 A. 285. A domicile, as said by the Supreme Court in Mitchell v. United States, 21 Wall. 352, 22 L.Ed 584 is "a residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time"; and this court said in Thomas v. Warner, 83 Md. 20, 34 A. 831, "The idea of residence is compounded of fact and intention; to effect a change of it there must be an actual removal to another habitation, and there must be an intention of remaining there"; and where there is an attempt to show that there has been a change in a known, fixed, and established residence, it is incumbent upon the party attempting to establish such fact to show (1) an actual removal to another habitation, and (2) that the person removing did so with the intention of remaining there, at least for an unlimited time. Pope v. Williams, 98 Md. 59, 56 A. 543, 66 L. R. A. 398, 103 Am. St. Rep. 379.

A decedent's domicile at the time of his death is the proper jurisdiction in which to obtain letters testamentary or of administration upon his estate. 11 R. C. L. 65.

The evidence in this case discloses that Jacob Brafman was born and reared in the city of Baltimore, and, after reaching his majority, he lived and worked in that city; but, some years before his death, his health became impaired, and, in consequence thereof, he could do little or no work. While in this condition, he visited different resorts along the Atlantic coast. In the summer he went to Atlantic City, and in winter to one or more of the resorts in Georgia and Florida. When not at these places, he lived in one of the smaller hotels in the city of Baltimore, or with his sister or brother.

In the summer of 1918, while at Atlantic City, he met the plaintiff a trained nurse, whose home was in Nanticoke, Pa. In the following November they were married in Philadelphia. In his application for the marriage license, he stated that his residence at that time was in Baltimore City, Md. After they were married, they went to Atlantic City, where they lived in hotels and apartment houses as man and wife for about six months, when they separated. She went to New York, where she resumed her work as nurse and he remained, for a while at least, in Atlantic City. They never again lived together, although Brafman wrote to her a number of times asking her to return to him. He also appealed to her brother and one of her friends to use their influence with her in an effort to have her come back to him, but it seems their efforts were unavailing. He, as he did before his...