Cromwell v. Neeld

• Citation: 83 A.2d 337,15 N.J.Super. 296
• Decision Date: 21 September 1951
• Docket Number: No. A--384,A--384
• Parties: CROMWELL et al. v. NEELD.
• Court: New Jersey Superior Court — Appellate Division

Page 296

15 N.J.Super. 296

83 A.2d 337

CROMWELL et al. v. NEELD.

No. A--384.

Superior Court of New Jersey Appellate Division.

Argued Aug. 20, 1951.

Decided Sept. 21, 1951.

Robert V. Carton, Asbury Park, argued the cause for the appellants (Thomas F. Daly, Red Bank, for appellants).

William A. Moore, Deputy Atty. Gen., argued the cause for respondent (Theodore D. Parsons, Atty. Gen., for respondent).

Before Judges BIGELOW, DAVIDSON and McLEAN.

McLEAN, J.S.C.

This is an appeal from the action of the Division of Taxation, Department of the Treasury of New Jersey, making an assessment of transfer inheritance tax on the estate of Mary Bell Kissel amounting to $2,647.32. Mrs. Kissel died in New York City. The taxes were assessed on the basis that she was a resident of New Jersey, domiciled at Morristown, Morris County. Appellants assert that Mrs. Kissel having changed her domicile from New Jersey to New York the tax was erroneously assessed and should be set aside and a new assessment made. It has been determined that the estate of one domiciled in the State of New Jersey is subject to the New Jersey transfer inheritance taxes, irrespective of actual residence at the time of death. In re Dorrance's Estate, 115 N.J.Eq. 268, 170 A. 601 (Prerog. 1934); affirmed Dorrance v. Martin, 176 A. 902, 13 N.J.Misc. 168 (Sup.Ct. 1935); affirmed 116 N.J.L. 362, 184 A. 743 (E. & A. 1936), 17 Am.Jur. 590, 601. Hence, the question for determination is Mrs. Kissel's domicile at the time of her death.

Domicile' is the relation which the law creates between an individual and a particular locality or country. In a strict legal sense, the domicile of a person is the place where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning, and from which he has no present intention of moving. * * * It is the place with which he has a settled connection for certain legal purposes, either because his home is there or because that place is assigned to him by the law. * * * And every person, in all circumstances and conditions, is deemed to have a domicile somewhere; and, in general, a domicile once established continues until superseded by a new domicile, and the old domicile is not lost until a new one is acquired. * * *

A person may have several residences or places of abode but he can have only one domicile at a time. Domicile of choice is essentially a question of residence and intention--of Factum and Animus. It involves an exercise of volition. * * * And he may have his residence in one place while his domicile is in another. * * * There are certain legal rights and privileges which pertain to 'residence' rather than to 'domicile.' One's 'home' may be relinquished and abandoned, while one's 'domicile,' upon which may depend certain civil rights and duties, may in legal contemplation remain.' Kurilla v. Roth, 132 N.J.L. 213, 215, 38 A.2d 862, 864 (Sup.Ct.1944) and authorities there cited.

To effect a change of domicile there must be a voluntary change of residence; the residence at the place chosen for the domicile must be actual; to the Factum of residence there must be added Animus manendi; and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless, or until something uncertain or unexpected shall happen to induce him to adopt some other place as his permanent home.' Harral v. Harral, 39 N.J.Eq. 279 (E. & A. 1884).

A change of residence for a special purpose, such as taxation benefits, or a period of seasonal residence in obedience to the demands of health, does not necessarily amount to a change of domicile. The burden of proof to establish that a change of domicile has occurred rests upon the party asserting it. In re Michelsohn's Will, 136 N.J.Eq. 387, 37 A.2d 118 (Prerog. 1944).

Domicile is factual, and each case must be evaluated and determined by its own facts and circumstances. From the record in the instant case, we find the following facts:

Mrs. Kissel was born in Philadelphia, Pennsylvania, on September 17, 1872. In 1910, she married Rudolph Kissel and took up her residence with him at his home, Inamere Farm, Morristown, New Jersey, where she continued to reside for 32 years until the death of her husband, March 31, 1942. The family consisted of Mr. and Mrs. Kissel and Mr. Kissel's children by his first marriage. They lived a portion of each year in New York City, where a residence was maintained for their use on such visits. When her husband died, Mrs. Kissel made no immediate change in her habit of life. Inamere Farm had been occupied by Mr. Kissel as a life tenant under the will of his first wife, and after his death Mrs. Kissel continued to live there sharing the taxes and incidental expenses with her stepchildren. When her husband died, Mrs. Kissel was 70 years of age; she had been afflicted with arthritis for many years and her condition gradually grew worse until she became incapacitated. In the fall of 1942, she transferred the New York residence to her son-in-law and during her New York visits she occupied a rented apartment. She followed her usual practice in 1942 and 1943, spending some time at the Morristown residence, returning to New York in the fall. The summer of 1944, she spent at Lake Placid, New York, returning to her New York apartment where she continued to live until her death on January 20, 1950. Most of this time she was bedridden or lived in an invalid chair. She continued to file her federal income tax returns as a resident of New Jersey until her death and made no returns for tax purposes to New York. Her last will executed in March 1949, recited that she was a resident of Morris Township, Morris County, New Jersey, and two previous wills executed in 1926 and 1932, respectively, contained the same recital.

In 1948, the house she had occupied at Morristown was rented for two years and about this time Mrs. Kissel disposed of her automobile and some furniture and other personal effects located at Inamere Farm. She continued her contacts with a Morristown Bank; her silverware was there for safe keeping during her absence and she maintained a balance of $2,431.17, although her account was said to be dormant.

It appears from the above that there is no question that Mrs....