Emery v. Emery

• Citation: 105 N.E. 879,218 Mass. 227
• Parties: EMERY v. EMERY et al.
• Decision Date: 16 June 1914
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 227

105 N.E. 879

EMERY v. EMERY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 16, 1914

COUNSEL

Horace G. Pender, Hale & Dickerman, and Samuel W. Emery, all of Boston, for appellants.

Greenleaf K. Bartlett, Benj. B. Piper, and Edward C. Stone, all of Boston, for appellee.

OPINION

DE COURCY, J.

This case is before us on a report after an appeal from the interlocutory decree denying the 'plea and motion' it being agreed that the findings of fact made by the Chief Justice should be accepted without report of the evidence. The only question raised is whether the correct inference to be drawn from the facts found is that the domicile of Samuel W. Emery at the time of his decease was in Suffolk county in this commonwealth, where his will was filed for probate. R L. c. 162, § 3; Harvard College v. Gore, 5 Pick. 370; Shaw v. Shaw, 98 Mass. 158. And under the terms of the report we stand where the Chief Justice stood in drawing the inference of residence from the facts. Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N.E. 886.

Previous to January, 1905, the domicile of Samuel W. Emery was in Portsmouth in the state of New Hampshire. He was a trial lawyer of distinction, had been county attorney and city solicitor, and was then judge of the municipal court. It is found as a fact, and is not disputed by the appellants, that Mr. Emery in 1905 formed a fixed and bona fide intent and purpose to give up his domicile in New Hampshire and to acquire one in Massachusetts, and that this intent continued constant until his death in November, 1912. This purpose was manifested not only by statements made publicly and privately that he had given up Portsmouth permanently and proposed to remove his practice and residence to Massachusetts, but by significant acts such as his resignation as judge of the municipal court of Portsmouth and as member of the New Hampshire Bar Association. In short, he appears to have done everything that reasonably could be expected in carrying out his purpose to sever his connection with his domicile of origin. The fact that he retained his large house with its 14 acres of land was due to his inability to dispose of such a property, notwithstanding his many efforts to do so.

As already said, it is undisputed that Mr. Emery had a clear and honest purpose to establish his legal domicile here. With that intent the fact of residence must concur. But as was said by Knowlton, C.J., in Barron v. Boston, 187 Mass. 168, 170, 72 N.E. 951:

'The only act, apart from the intention of the actor, which is absolutely necessary to the acquisition of a domicile in a city or town, is that at some time the person must go to the place and take up his abode there. If he is abiding there while his domicile is elsewhere, and if while so abiding there he forms an intention immediately to make it his home permanently or for an indefinite period, and continues to abide there in pursuance of that purpose, he thereby acquires a new domicile.'

The record discloses facts which show decisively that he carried into actual execution his intention to acquire a domicile here. He transferred his law office from Portsmouth to Boston. He was admitted to the bar of this commonwealth, and was appointed a justice of the peace in Massachusetts; and in both applications he described himself as of Boston. By his direction he was designated as Samuel W. Emery of Massachusetts in the reports of cases thereafter argued by him in the New Hampshire Supreme Court. In numerous written instruments, including a mortgage of his house in Portsmouth and leases of his offices, he described himself as of Boston and always so registered at hotels. His political and municipal rights and duties were located here, where he paid his poll taxes and exercised...