Estate of Walker v. Walker

• Decision Date: 07 March 1876
• Citation: 1 Mo.App. 404
• Parties: In re Estate of ISAAC WALKER, Deceased, Respondent, v. THOMAS A. WALKER, Executor, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 404

In re Estate of ISAAC WALKER, Deceased, Respondent,

v.THOMAS A. WALKER, Executor, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 7, 1876.

A person domiciled in Missouri may spend the greater part of a year, or series of years, at another place without thereby forfeiting his domicile. He does not forfeit his domicile without an intention, definitely formed, to abandon his original domicile and take up another; and until this intention appears, either directly or by some act inconsistent with the retention of the old domicile, the presumption of the continuance of it is not overcome.

APPEAL from St. Louis Circuit Court.

Reversed and dismissed.

A. J. P. Garesché, for appellants, cited: Wilson v. Terry, 9 Allen (Mass.), 215; Griffin v. Wall, 32 Ala. 160, 161; Church v. Rowell, 49 Me. 370; Attorney General v. Rowe, 1 H. & C. 41; Kellogg v. Oshkosh, 14 Wis. 623; Story Confl. (3d ed.) 54, sec. 44, p. 55, sec. 45, p. 56, sec. 45; Westlake's Int. Law, 37, secs. 36, 41, 42; 5 Madd. Ch. 246, sec. 405; Warren v. Thomaston, 43 Me. 418; Church v. Rowell, 49 Me. 370; Adams v. Abernathy, 3 Mo. 198; 37 Mo. 198; First National Bank v. Balcom et al., 35 Conn. 351, 354; Board of Supervisors v. Davenport, 40 Ill. 208; Frost v. Brisbin, 19 Wend. 14; Douglass v. Mayor of New York, 2 Duer (N. Y.), 119; Hallet et al. v. Bassett, 100 Mass. 170; Gilman v. Gilman, 52 Me. 165; Greene v. Beckwith, 38 Mo. 387-389; Exchange Bank v. Cooper, 40 Mo. 171; Smith v. Rollins, 25 Mo. 410; Otis v. City of Boston, 12 Cush. (Mass.) 50; Johnson v. Smith, 43 Mo. 501; West Cambridge v. Charleston, 13 Mass. 503; Harvard College v. Gore, 5 Pick. (Mass.) 377; Wag. Stat. 1068, sec. 34; Wiggans v. Swett, 6 Metc. (Mass.) 197; Dearing v. Adams, 34 Me. 44; Lewis v. Bohlto, 6 Gray (Mass.), 138; 3 Metc. (Ky.) 74; Montgomery v. Sears, 2 Cal. 57; State v. Jones, 11 Iowa, 12; Beasley v. Prentiss, 13 Smed. & M. (Miss.) Ch. 99, 100; May v. Courtenay, 47 Mo. 187; Asbury v. McIntosh, 20 Mo. 278; Hasselmeyer v. Zinc Co., 50 Mo. 181.

D. T. Jewett, for appellant, cited: Green v. Beckwith, 38 Mo. 384; Cadwalader v. Howell, 3 Harr. (N. J.) 138; Hackettstown Bank v. Mitchell, 4 Dutch. (N. J.) 516; Pearce v. State, 1 Sneed, 63.

Krum & Madill, for respondent, cited: Wag. Stat., Art. 1, sec. 81, p. 72; Green et al. v. Beck, 38 Mo. 384.

GANTT, P. J., delivered the opinion of the court.

At the December term, 1873, of the St. Louis Probate Court the letters testamentary of Thomas A. Walker, executor of Isaac Walker, were revoked, on the ground that he had become, since the grant of them in 1868, a non-resident of the State of Missouri. He appealed to the St. Louis Circuit Court, which, upon a hearing of the cause, declared him to be a non-resident of Missouri. This finding, and the judgment of revocation consequent on it, being affirmed by the general term, Walker appealed to the Supreme Court, and the cause is transferred to the St. Louis Court of Appeals.

The question was entirely as to the residence, in 1873, of Thomas A. Walker.

There was no dispute that at his father's death, in 1868, he resided in St. Louis. In 1871 he still, beyond cavil, resided here. In that year he married; and, for the alleged reason that his wife's health required it, she has always lived, since the marriage, at Council Bluffs, Iowa. Walker has large landed possessions here, and much business. He has sojourned since his marriage, principally, with his wife at Council Bluffs, where, however, he has boarded himself and family, not keeping house.

Many witnesses were examined in the Circuit Court. Warren, deputy county treasurer of Pottawattamie county, Iowa, testified that he knew Walker; that he had resided at Council Bluffs, Iowa, for the last six months (deposition taken May, 1873); that his family resided there, and that common report made him a resident of Iowa. Thomas Bowman testified that he was city assessor for Council Bluffs; that he knew Thomas A. Walker; that, as assessor, he called on Walker, who gave him his name and the number of persons in his family; he also gave in his real and personal property for taxation; that a county poll-tax was assessed on him; and that he was registered as a voter at Council Bluffs. This last was done by witness of his own motion, and not at Walker's request. It is witness' custom to register the names of all whom he considers entitled to vote. The property of Walker assessed was “one county poll and $500 in money and credits.” Witness did not know that Walker was aware that he was assessed for a poll-tax.

A. Spier, examined in New York, October 28, 1873, testified that in 1871 Walker told him, in New York city, that he resided at Council Bluffs, and would not live in St. Louis; and that, in reply to a question from Mr. Shepley, he said that Council Bluffs was his residence. Witness' knowledge was drawn wholly from statements made to him by Walker and his wife.

William M. Gawtry, examined October 28, 1873, in New York, testified that he was brother-in-law of Thomas A. Walker, and had known him for twenty years and more. In 1868 witness was in St. Louis, and Walker told him that he intended to remove to Council Bluffs. In January, 1873, Walker said he was living in Council Bluffs; heard him then, in conversation with Mr. Shepley, say he resided at Council Bluffs, Iowa. Witness had written letters to him at Council Bluffs, and received answers dated from that place.

W. N. Nevins, of New York city, testified that he had been employed by Walker, in St. Louis, prior to October, 1871; had heard him say that he considered Council Bluffs, Iowa, his place of residence; that he had voted in Iowa, and could not vote in St. Louis. He was absent from St. Louis ten months in all between July, 1870, and October, 1871. On three or four different occasions he spent his absences at Council Bluffs, so he told witness. He told witness, in 1871, that he considered Council Bluffs his residence; that he had bought a house there, and his wife was living in it.

On cross-examination he said that, as far as witness' knowledge went, Walker's mode of life while in St. Louis, in 1871, was what it had formerly been. He retained his lodging-rooms, his office, and his boarding-place. First heard him say that he considered Council Bluffs his residence in the fall of 1870. He had owned property there since 1867. Inferred that he resided at Council Bluffs from his having a house there partly furnished, and his wife living in it.

John S. Dorkey testified that he had been in Walker's employment since 1868. He married in 1871. His wife never resided here. When in St. Louis he lives at his old place on St. Charles street. When he has been here since 1871 he has lived as he always did before. Since his marriage he has been back and forth from St. Louis to Council Bluffs. Recently he has spoken of the bad health of his wife. In 1871 and 1872 he was absent, at Council Bluffs, two or three months of each year. His clothing was kept in a wardrobe in his sleeping room on St. Charles street, St. Louis. There has been no difference in his way of living since his marriage from what it was before.

This was the evidence on the part of those asking for the removal of Walker.

On the part of Walker was examined Mrs. Williams, who testified that she was his mother-in-law; that his permanent place of residence was St. Louis; that he had been temporarily and occasionally at Council Bluffs since and before his marriage. Witness occupies a house belonging to Walker's wife, and boards him and his family while he is at Council Bluffs. On account of his wife's bad health witness urged her to remain at Council Bluffs, when she would talk of going to St. Louis to live. Witness said nothing on the subject to Walker himself. His wife's health has prevented her going there, so far. Heard Walker, in the spring of 1872, say that the unsettled business of his father's estate prevented his removal from St. Louis. Since his marriage he has been fully half his time in St. Louis.

On cross-examination she said that his wife had always lived at Council Bluffs since her marriage. Walker has divided his time between Council Bluffs and St. Louis. Witness boards him and his wife in a house rented by witness from Mrs. Walker. He has kept a horse and carriage at Council Bluffs for his wife and family.

E. S. Williams testified that he was the husband of the last witness; that he had known Walker since 1855; that Walker resided then at St. Louis, and still resides there. He has not changed his residence. Witness knows this from an agreement made with Walker in regard to the place occupied by witness. The agreement is that witness and his wife take charge of the place and board him (Walker) and his wife until the affairs of his father's estate are so far settled that he can make Council Bluffs his home. He has at least temporarily abandoned the idea of removing to Council Bluffs, and intends removing his wife to St. Louis as soon as her health will permit. He has never claimed Council Bluffs as his residence. He has spoken of it as a probable future place of residence. Witness has often conferred with him on this subject during the last half-dozen years. At witness' persuasion he bought the Test place. He intended laying it out, in connection with other property, into lots. Things are so dull here that this design is suspended. He has said that the settlement of his father's estate keeps him in St. Louis. He was asked: “Does he not now intend to move to Council Bluffs as soon as said estate is settled?” He answered: “I think it is extremely doubtful.” He was asked if, before his marriage, he did not promise to remove to Council Bluffs, and replied that he gave no such promise to witness, or to any one, to witness' knowledge. Walker abandoned the idea of making Council Bluffs his home eighteen months or two years ago (this deposition was taken May 26, 1873), long before this controversy started. Walker's name is borne in the...