Cooper's Adm'r v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: PRENTIS
• Citation: Cooper's Adm'r v. Commonwealth, 93 S.E. 680, 121 Va. 338 (1917)
• Decision Date: 20 September 1917
• Parties: COOPER'S ADM'R. v. COMMONWEALTH et al.

93 S.E. 680

COOPER'S ADM'R.

v.COMMONWEALTH et al.

Supreme Court of Appeals of Virginia.

Sept. 20, 1917.

Appeal from Circuit Court, Roanoke County.

Proceeding by the Commonwealth and others against C. L. Hatcher, administrator of Thomas H. Cooper, deceased, to assess taxes against the estate under Code 1904, §§ 567, 571. The administrator asks correction and cancellation of assessment of intangible property. Judgment holding administrator liable for taxes assessed in favor of Commonwealth, pursuant to Acts 1916, c. 491, and the administrator appeals. Reversed and remanded.

Jackson, Henson & Saul, of Salem, and Jos. M. Sanders, of Bluefield, W. Va., for appellant.

The Attorney General, J. D. Logan and R. T. Hubard, both of Salem, and Kime & Kime, of Roanoke, for appellees.

PRENTIS, J. The question in this case is whether or not the intangible property of the estate of Thomas H. Cooper, deceased, is liable to taxation by the commonwealth of Virginia, the county of Roanoke, school district No. 5 of Roanoke county, and the town of Salem, and depends upon whether his domicile for several years before his death was at Salem, Roanoke county, Va., or at Cooper's, Mercer county, W. Va. The assessments having been made in 1915 for the years 1908 to 1915, inclusive, C. L. Hatcher, sheriff of Roanoke county and as such administrator of the decedent, alleging that such assessments are erroneous, applied under sections 567 and 571 of the Code for their correction and cancellation.

By consent and for convenience the motions were heard together and a single judgment entered. The trial court, being of the opinion that Cooper was, within the meaning of the tax laws, a resident of Virginia from 1905 until his death, held the appellant liable for all the taxes assessed in favor of the commonwealth, and pursuant to the statute (Acts 1916, p. 827, construed in Commonwealth v. United Cigarette Machine Co., 92 S. E. 901) relieved him from all local taxes prior to the year 1912, but held him liable for such local taxes for the years 1912 to 1915, inclusive.

The facts are that Thomas H. Cooper, who had been domiciled in West Virginia since his childhood, in 1904 brought his wife and children to the town of Salem. He there bought 12 acres of land and erected a valuable dwelling thereon, the cost of which was variously estimated, but which was assessed for taxation in 1915 at $32,000, and its market value is estimated to be between $50,000 and $60,000. He with his family occupied this dwelling from its completion until March, 1911, when he died. When he first went to Salem, and on every other occasion when the matter was referred to, he averred that his residence there was only temporary; that he came for the purpose of educating his children; and that he proposed to retain his domicile and citizenship in the state of West Virginia and to return to his home there when his purpose was accomplished. During all of this period he paid his poll tax annually in West Virginia, and voted regularly at Cooper's in that state. At the time he came to Virginia and to the end of 1909, as certified in the bill of exceptions, he was postmaster at Coaldale, a mining village two or three miles from Cooper's, and he was his father's administrator in West Virginia. He was the general manager of the McDowell Coal & Coke Company and of the Coaldale Coal & Coke Company, and president of the Mill Creek Coal & Coke Company. He was a director of the Bank of Bramwell, W. Va., and of the Fidelity Bank & Trust Company of Bluefield, W. Va., all of which positions he held up to the date of his death. As an officer of the coal companies above mentioned, he actively managed their business, which was large, received a salary therefor, and his habit was to go to West Virginia and remain two or three days, every ten days or two weeks, for the purpose of attending to his business there. He reserved a room, which he called his own, in a house on the property of one of these companies at Cooper's, which was occupied by his mother. A very large part of his estate was invested in the stock of these coal mining companies. When he first came to Virginia the commissioner of the revenue at Salem proposed to assess him for capitation tax, and demanded that he list his intangible property for taxation, for he was known to be well to do, but he denied his liability therefor, claiming that he was not domiciled in the state of Virginia, did not propose to change his domicile from West Virginia, and stated that he was postmaster at Coaldale and required by the federal government to maintain a residence there, and therefore he only listed his tangible personal property in Salem for taxation. Each year thereafter, when the tax interrogatories were presented to him, he erased all those portions thereof which would indicate that he was domiciled in Virginia, and always refused to list or pay any capitation or intangible property tax in Virginia, but he annually listed and paid taxes on his household furniture and other tangible property in Salem. Shortly after his death, his widow, on March 29, 1911, by a writing filed in the county clerk's office of Mercer county, W. Va., waived her right to qualify there as administratrix of her husband's estate, requested that his brother, Edward Cooper, be appointed his administrator, and upon her motion he was appointed. Edward Cooper took immediate charge of all of his estate, some of the securities being in a safe deposit vault in Salem, and some in a West Virginia bank, and has proceeded to administer his estate under that appointment. Four years thereafter, in 1915, by an order of the circuit court of Roanoke county, Va., Cooper's estate was committed to C. L. Hatcher, sheriff of Roanoke county, the appellant here, and thereafter in 1915 the assessments complained of, $180,000 of intangible property and $25,000 income, for the years 1908 to 1915, inclusive, were made. The Virginia administrator testified that no property has come into his hands as such administrator, and that he knows of none within the state of Virginia which will come into his possession to be administered.

To justify the assessments these facts are relied on: That the decedent, Cooper, was a student at Roanoke College, Salem, Va., and married a resident of that town. Of the marriage six children were born, five while they were in West Virginia, and one after their return to Salem. He did not own any residence in West Virginia, but while there occupied one owned by one of the coal companies with which he was connected. When he came to Salem, he brought his household furniture with him. While there he became a stockholder in the Farmers' National Bank of Salem, a stockholder and officer in the Colonial Bank of Roanoke, a stockholder, director, and president of the Catawba Valley Railway & Mining Company, extending about six miles from Salem, stockholder and official of the Cooper Silica & Glass Company, Incorporated, and of the Consumers' Fuel Company, Incorporated, the last four being Virginia corporations. While in Salem he signed three certificates for the purpose of procuring three separate charters in the state of Virginia, in each of which his place of residence was stated to be Salem, Va. In 1909 he procured two life insurance policies, and in each of his applications therefor answered questions stating that Salem, Va., was his residence and business address. Upon applications to the secretary of the commonwealth of Virginia for his automobile licenses in 1907 and 1910 his residence and post office address were said to be Salem, Va. He became president of the Board of Trade of Salem. He transferred his church membership to the Methodist Episcopal Church, South, at Salem, was on the board of stewards of this congregation, and was the chief contributor of the necessary money for its new church building, His children went to the public schools of Salem without the payment of fees, which are required of nonresidents, though there is no suggestion that he ever refused to pay such fees, or that he was ever asked to do so. When not on social or business trips to West Virginia or elsewhere, he spent his time in Salem. He purchased two burial lots in East Hill Cemetery, Salem, and removed the bodies of two of his dead children and interred them in those lots.

Though frequently so used, "residence" and "domicile" are not synonymous words and "domicile" has the larger significance. The meaning of the word "residence" depends upon the subject-matter and connection in which it is used. In general terms it may be said to be the dwelling place of a person, but it may be either his permanent or temporary abode. In the construction of statutes, the meaning of the word "residence" depends upon the context and purpose of the statute. As used in one statute it may clearly refer to a mere business residence, while as used in another it may just as clearly refer to domicile as technically and strictly defined. In determining the meaning of the word in a particular statute, the legislative purpose and the context must always be keptin view. Raymond v. Leishman, 243 Pa. St. 64, 89 Atl. 791, L. R. A. 1915A, 400, Ann. Cas. 1915C, 783.

As used in the Virginia statutes (Code, §§ 491, 494, as amended by Acts 1915, p. 219), so far as they relate to taxes upon intangible property, having no other situs for taxation, the words "residing therein" and the words "residing * * * in his district" can only refer to persons domiciled in the district of the local commissioner of the revenue who makes the assessment, for any other construction would inevitably lead to hopeless confusion and conflict between the different communities in this and in other states, in which the taxpayer might have temporary residences, as well as to multiplied taxation upon the same property. Pendleton v. Commonwealth, 110 Va. 232, 65 S. E. 536.

The distinctions between domicile and residence have been frequently defined, but the...