Burr's Administrator v. Hatter

• Decision Date: 27 October 1931
• Citation: Burr's Administrator v. Hatter, 240 Ky. 721, 43 S.W.2d 26 (Ky. 1931)
• Court: Supreme Court of Kentucky
• Parties: Burr's Administrator v. Hatter et al.

240 Ky. 721

Burr's Administrator v. Hatter et al.

Court of Appeals of Kentucky.

Decided October 27, 1931.

1. Executors and Administrators. — Place of "residence" of decedent, as regards administration, held legal residence or "domicile," as contradistinguished from "actual residence"; that is where decedent may be temporarily abiding at time of demise (Ky. Stats., secs. 3894, 4849).

Ky. Stats., sec. 3894, provides that when person dies intestate, court that would have jurisdiction to probate his will, had he made one, shall have jurisdiction to grant administration of his estate. Section 4849 provides that such jurisdiction is vested in court of county of decedent's residence, if he has known place of residence in commonwealth.

2. Executors and Administrators. — In determining place of decedent's "residence," as regards administration, each case must be disposed of on own peculiar facts (Ky. Stats., secs. 3894, 4849).

3. Domicile. — Legal "residence" is based upon fact and intention.

That is to say, it is to be determined by location of person and his intention to abandon former domicile and establish new one.

4. Domicile. — Intention is dominant factor in determining legal "residence" and must be deduced from facts in evidence, conjoined with residence or location.

5. Domicile. — Person can have but one legal residence.

6. Executors and Administrators. — Decedent's legal "residence" held prima facie in county where decedent made his abode for many years and died (Ky. Stats., secs. 3894, 4949).

7. Domicile. — Presumption is that established domicile continues until another is acquired by actual residence with intention of abandoning former one.

8. Domicile. — As regards determining legal residence, party's declarations may be regarded as index to intention, but are not always high quality of proof.

Such declarations are not always to be regarded as a high quality of proof, for they may be conflicting or made for self-serving or other specific purpose.

9. Executors and Administrators. — In determining legal "residence," that decedent continued to vote in county from which he had removed held not conclusive (Ky. Stats., secs. 3894, 4849).

10. Executors and Administrators. — As regards administration, record held to show decedent's legal "residence" or "domicile" was in Simpson county, not Logan county (Ky. Stats., secs. 3894, 4849).

Record disclosed that decedent was born on farm in Logan county and resided there with his parents for several years, when they removed to a town in same county; that upon his father's death he became a traveling salesman and he and his mother took up their abode at a boarding house in Simpson county, leaving nothing in Logan county except farm; that he lived for more than quarter of century in Simpson county, and continued to live there even after death of his mother and his retirement from active business. He expressed desire to sell his farm in Logan county upon acceptable terms, and only circumstances pointing to his residence in Logan county were his continued voting therein, and his reference to birthplace in Logan county as his "home."

Appeal from Simpson Circuit Court.

COLEMAN TAYLOR for appellant.

GERALD T. FINN and W.R. PEEBLES for appellees.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

The appellant, O.Z. Hutchison, qualified in the Logan county court as the administrator of Edmund P. Burr, deceased. The appellee, Emmett Hatter, had previously qualified as such in Simpson county court. The conflicting appointments gave rise to this suit, in which the Simpson circuit court held that the decedent was domiciled in that county and therefore that the appellant's appointment was ineffective. The sole issue presented on the appeal is the "domicile" of Mr. Burr within the meaning of the terms of sections 3894 and 4849 of the Statutes. The former provides that when a person dies intestate the court that would have jurisdiction to probate his will, had he made one, shall have jurisdiction to grant administration on his estate. By the latter section such jurisdiction is vested in the court of the county of his residence if he has a known place of residence in the commonwealth.

The "place of residence" in this connection means legal residence or domicile, as contradistinguished from "actual residence", that is, where the decedent may be temporarily abiding at the time of his demise. Shirley v. Burch, 6 Ky. Law Rep. 446; Robinson v. Paxton, 210 Ky. 575, 276 S.W. 500. As to what is or was one's residence often presents a difficult question. To determine it no satisfactory uniform rules have been evolved, but the consideration and weight to be given different states of fact, apparently conflicting, have been declared. Each case must be disposed of on its own peculiar facts.

The facts marshaled by the appellant, plaintiff below, to show that the residence of the decedent was in Logan county, are these:

The decedent was born on a farm in the Schochoh precinct of Logan county and resided there with his parents for several years, when they all moved to Auburn, in the same county. As a young man he entered the drug business in which he continued after the death of his father, which was about twenty-five years before his death. He then became a traveling salesman. After his father died he and his mother took up their abode at a boarding house in Franklin, Simpson county. They took with them the furniture for at least the mother's room. They left nothing in Logan county, so far as the record discloses, except the farm.

Burr never married and had no brothers or sisters. He inherited from his father the farm on which he was born and retained it to the end. He took more than a passive interest in the local elections and pretty regularly returned to the Schochoh precinct to cast his vote. He never voted elsewhere, and at the last election preceding his death when he was not physically able to make the trip from Franklin he refused to vote there. The live stock and implements on the farm were assessed for taxation under the partnership name of his tenant and himself, and of course taxes were paid in Logan county on the land and personal property. However, he did not pay any poll tax or tax on intangibles there. He paid no taxes of any kind in Simpson county except the license for his automobile. The county judge, an old friend and neighbor, testified he was at his farm a part of nearly every year for a number of years, particularly during the year 1915 when he was actively in charge of it, and always claimed it as his home. Another testified he lived on the farm for two or three years after his father died.

Over against the evidence produced by the appellant, the appellee showed as proof of his legal domicile in Simpson county that the decedent and his mother occupied rooms at the Williams boarding house from the time they left Auburn, which was about twenty-five years before his death. During week-ends and vacations Burr returned to be with his mother there, where he also had his room and personal effects. He would drive over to his farm three or four times a year and sometimes stay a day or two. In 1913, on account of a storm destroying some barns and fencing, he spent quite a good deal of time there; but the tenant in charge for ten or twelve years testified clearly that he never retained a room in the residence or lived there. He stayed with a nearby relative. After his retirement from business his visits were more frequent. He did his banking business at Franklin during all that time, and his automobile was licensed in Simpson county. In retaining his status as a registered pharmacist, Burr gave Franklin as his address in his applications. He also registered at hotels as being from that town, and often referred to it as his home and town. It is worthy of notice that his mother voted in Franklin, although he, as stated, continued to vote at his old precinct in Logan county. A significant commentary on this, however, was made at the election next preceding his death when he was physically weak and unable to make the journey. It was suggested to him that he could vote in Franklin, and he responded: "No, if I do I will have to pay school tax here and I don't want to do that." It was also stated that he had continued to vote in Logan county because he thought something might come up that would affect his property there, and it was to his financial interest to do so. There was evidence that for several years he had desired to sell his farm but would not do so for less than he considered it to be worth.

Two or three years after his mother's death, which was in 1925, Burr retired from business. But he continued living at his old boarding house, where he died in January, 1931.

Legal residence is based...