Estate of Gadway, Matter of

• Decision Date: 08 January 1987
• Citation: Estate of Gadway, Matter of, 510 N.Y.S.2d 737, 123 A.D.2d 83 (N.Y. App. Div. 1987)
• Parties: In the Matter of the ESTATE OF Frances K. GADWAY, Deceased. Frederick S. Dennin, Individually and as Executor of the Estate of Frances K. Gadway, Deceased, Appellant; James F. Kennedy et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 737

510 N.Y.S.2d 737

123 A.D.2d 83

In the Matter of the ESTATE OF Frances K. GADWAY, DeceasedFrederick S. Dennin, Individually and as Executor of the Estate of Frances K. Gadway, Deceased, AppellantJames F. Kennedy et al., Respondents.

Supreme Court, Appellate Division Third Department.

Jan. 8, 1987.

Frederick S. Dennin, Lake Placid, in pro. per.

John L. Stinziano, Syracuse, for respondents.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

HARVEY, Justice.

Frances K. Gadway(hereinafter decedent) died testate in Florida on January 17, 1985.At the time of her death, she had assets in both Florida and New York.Her will had been drafted and executed in this State under the direction of petitioner, her New York attorney.The will bequeathed 50% of the estate to respondentsCatherine G. Gadway and Michael E. Gadway(hereinafter the Gadways).The remainder of the estate was bequeathed to decedent's heirs at law as defined by the laws of descent and distribution of New York.Petitioner was named as decedent's executor.

Although petitioner initially indicated in a letter to the Surrogate's office that he believed decedent had changed her place of domicile from New York to Florida prior to her death, he subsequently changed his position and petitioned Surrogate's Court to probate the will.Several of decedent's heirs at law (hereinafter respondents) filed objections.Respondents asserted that decedent was domiciled in Florida at the time of her death and thus that the will should be probated in Florida.Additionally, respondents filed in Brevard County, Florida, a petition for administration of the will.In that petition, respondents sought to have respondentJames F. Kennedy named executor of the will since under Florida law petitioner could not be permitted to act as executor.^*

In responding to respondents' objections, petitioner asserted, inter alia, that questions of fact existed as to decedent's domicile and that, in any event, the will should be admitted to original probate in Surrogate's Court pursuant to SCPA 1605.The Gadways also filed a reply to respondents' objections and made a motion for summary judgment to admit the will to probate in Surrogate's Court.The court informed the parties that it planned to treat the return date of September 4, 1985 as a pretrial conference in which an attempt would be made to amicably resolve the matter.The conference failed to produce an agreement and, without further notice to the parties, the court ruled on the pending summary judgment motion.The Gadways' motion to admit the will was denied and, although no cross motion had been made, Surrogate's Court proceeded to dismiss the petition to probate the will.The court held that decedent was a Florida domiciliary and declared that it declined to exercise its discretion under SCPA 1605 to probate the will.Petitioner appeals.

We turn first to the issue of whether Surrogate's Court properly determined that decedent was a Florida domiciliary.The question of domicile is generally a mixed question of fact and law which must be determined by the court after a review of the pertinent evidence (Matter of Brunner, 41 N.Y.2d 917, 394 N.Y.S.2d 621, 363 N.E.2d 346;Matter of Feinberg, 155 Misc. 844, 280 N.Y.S. 540[Foley, S.] ).No single factor is controlling and the unique facts and circumstances of each case must be closely considered (Matter of Trowbridge, 266 N.Y. 283, 194 N.E. 756;Matter of Lamoutte, 195 Misc. 907, 90 N.Y.S.2d 807).It is incumbent upon the party seeking to prove that a decedent changed his domicile to establish such a change by clear and convincing evidence (Matter of Newcomb, 192 N.Y. 238, 84 N.E. 950;Matter of Bodfish v. Gallman, 50 A.D.2d 457, 378 N.Y.S.2d 138).

Here, respondents sought to prove that decedent had changed her long-standing domicile in New York to that of Florida shortly before her death.At the time of her death, decedent had residences in both New York and Florida.When a decedent has two residences, the earlier in time remains the individual's domicile until a clear intention to change is established (Matter of Miller v. Police Commr. of City of N.Y., 26 A.D.2d 803, 273 N.Y.S.2d 807;Matter of Shapiro, 36 Misc.2d 271, 232 N.Y.S.2d 332, affd.18 A.D.2d 837, 238 N.Y.S.2d 509;see, 1 Warren's Heaton, Surrogates' Courts§ 32[14][c], at 5-214[6th ed] ).Although decedent had acquired a Florida driver's license, she also maintained her New York license.The fact that decedent registered to vote in Florida is not controlling (see, Wilke v. Wilke, 73 A.D.2d 915, 917, 423 N.Y.S.2d 249;Matter of Lydig, 191 App.Div. 117, 180 N.Y.S. 843); nor is the fact that decedent filed tax returns as a Florida resident dispositive (see, Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817;Matter of Bourne, 181 Misc. 238, 41 N.Y.S.2d 336, affd.267 App.Div. 876, 47 N.Y.S.2d 134, affd.293 N.Y. 785, 58 N.E.2d 729).Militating in favor of a finding that decedent was still a New York domiciliary was her concentration of financial operations, bank accounts and business dealings in this State (see, Matter of Wendel, 144 Misc. 467, 259 N.Y.S. 260[Foley, S.] ), the declaration in her will that she was a New York resident (see, Matter of Tarantino, 27 Misc.2d 352, 209 N.Y.S.2d 882) and her choice of a burial site near her long-time home in Essex County(see, 49 N.Y.Jur.2d, Domicil and Residence, § 53, at 55).

In support of their position, respondents stress that petitioner initially indicated to Surrogate's Court that he believed decedent had changed her domicile to Florida.Petitioner's statement, as a long-time friend of and attorney for decedent, while not unimportant, is certainly not controlling.Further, it is somewhat ironic that Kennedy, decedent's brother, provided information to Florida officials for decedent's death certificate which indicated that, at that time, he believed decedent was domiciled in New York.Given his relationship to decedent, Kennedy's representation to Florida officials is entitled to the same consideration as petitioner's statement to Surrogate's Court.

In light of the above, we are unconvinced that respondents produced clear and convincing evidence that decedent intended to change her domicile from New York to Florida.We find that serious issues exist as to whether decedent evidenced a clear intention of changing her domicile, and thus Surrogate's Court should not have summarily decided the issue.However, even assuming that decedent was a Florida domiciliary at the time of her death, in the exercise of discretion we reverse for the following reasons.

Where the vast majority of a decedent's assets are located in this State and the laws of testator's domicile discriminate...