Fulham v. Howe
| Decision Date | 07 July 1890 |
| Citation | 20 A. 101,62 Vt. 386 |
| Parties | VOLNEY S. FULHAM v. LESTER C. HOWE |
| Court | Vermont Supreme Court |
FEBRUARY TERM, 1890
Judgment affirmed.
W E. Johnson, for the plaintiff.
Exceptions numbered 1-3 and 6-9, inclusive, relate to the exclusion of certain evidence offered on the trial by the plaintiff; numbers 4 and 5 to the admission of certain evidence offered by the defendant; and exceptions 10-13 to portions of the charge.
I. With regard to the evidence offered and excluded.
The offers all were to prove statements made by plaintiff bearing upon the subject of his residence. By the defendant plaintiff offered to prove declarations made by himself in conversation during the ten or twelve years subsequent to the time he came to Ludlow from New York City, in 1876, to care for his father and during the settlement of the father's estate. He offered to prove "declarations made by the plaintiff as to where his residence was, as to why he was in this particular town of Ludlow during these years before he was listed, what his business was there, and his declarations as tending to show where in fact he designed to have his residence and intended it to be."
By himself he offered to prove statements made by him to the listers of the town of Ludlow in relation to his residence at the time he was first called upon by them to return an inventory in the spring of 1884; also the inventories of his father's estate returned by him in the years 1882-6, as being declarations of the plaintiff accompanying an act tending to show his intention of retaining his residence in New York.
Also by the deposition of Mrs. Ketcham plaintiff offered to prove the understanding between himself and her as to his having a home at her house during the time he was in Ludlow, and statements made by him at any time during their acquaintanceship as to his home and place of residence. This evidence was all excluded.
No question is made as to what elements are necessary to constitute domicile. The fact of residence and the intent to make the place of residence the home of the party must concur. But continuous inhabitancy is not necessary. Mere absence, however long continued, so it be for a temporary purpose and with the intention of returning always in mind will not effectuate a change of domicile. Sto. Conf. Laws, s 44.
The question presented by the exceptions in this connection is, whether the declarations detailed therein and referred to above should have been admitted for the purpose of showing plaintiff's intention of retaining his residence in New York, and negativing any presumption that might arise from his conduct of an intention to change it from New York to Ludlow.
Declarations made by a party in his own favor are, as a general rule, in cases of domicile, the same as in all others, inadmissible. The exception to this rule is, that declarations made contemporaneously with and accompanying some act, which is itself admissible, and expressive of its character and motive, shall be received. Greenl. Ev. s. 108; Stark. Ev. (Sharswood Ed.) 51. In such cases they are commonly said to constitute a part of the res gestae. * * * Were the statements offered in proof by plaintiff made under such circumstances as to bring them within the exception defined above? * * * We think not.
The questions put to the defendant related generally to conversations between him and plaintiff at any time within the ten or twelve years during which plaintiff spent part of his time in Ludlow, and it was not attempted to connect them with any particular specific act. So of the portions of Mrs. Ketcham's deposition covered by the exceptions. The offer was to show an arrangement made with plaintiff to have his home with her in New York after his leaving there and declarations of his intention at various times, unconnected with any specific act material to the case. His mere continuous presence for a portion of each year in the town of Ludlow cannot be regarded as an act such as would render...
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