Gilmartin v. Emery

• Decision Date: 04 June 1932
• Citation: 160 A. 874
• Parties: GILMARTIN, Collector of Taxes v. EMERY.
• Court: Maine Supreme Court

160 A. 874

GILMARTIN, Collector of Taxes

v. EMERY.

Supreme Judicial Court of Maine.

June 4, 1932.

Report from Superior Court.

Action by John R. Gilmartin, as Collector of Taxes for the City of Portland, 1930, against Constance Emery. On report.

Judgment for plaintiff.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

H. C. Wilbur, of Portland, for plaintiff.

Verrill, Hale, Booth & Ives, of Portland, for defendant.

BARNES, J.

The case comes up on report in an action of debt for the taxes on personal property.

By stipulation of counsel the sole issue is whether defendant's domicile on April 1, 1930, was in Portland; and, if this be decided in the affirmative, judgment shall be for plaintiff in the sum of $6,461.76, with interest from the date of the writ; otherwise judgment to be for defendant.

Defendant was born in Portland and her domicile was without interruption, the same as her father's, in Portland, until his death, in April, 1929.

For more than twenty years before his death, defendant's father, with his family, lived during the winter seasons in Portland, and for the summer months in a house in the town of Cumberland.

In May, following the death of her father, defendant opened the Cumberland house, and lived in it through the summer.

In September of that year, she and her sister, the surviving heirs of the father, sold the Portland residence, dividing the furniture therein, and defendant bought the sister's interest in the Cumberland property. She then moved to the Cumberland house a few pieces of her share of the furniture formerly in the Portland house. The remainder "the bulk of It," she placed in storage.

She lived in the Cumberland house through the summer of 1929, and on October 1st departed for travel In Europe, returning to her Cumberland house on June 7 or 8, 1930.

She testified that, at the time of sale of the Portland house, she had an intention as to her future, permanent residence, namely, "to establish my residence at Cumberland Foreside."

To promote her business and property Interests she retained in her employ, while absent, a caretaker in Cumberland, a chauffeur, and an attorney at law.

From September, 1920, she had been a registered voter in Portland, and it was on July 28, 1930, that she caused her name to be stricken from such registration list.

For the maintenance of government, town, county, and state, municipal officers annually assess taxes.

As to personal property generally, the law is that it shall be assessed to the owner in the town where he is an inhabitant on the first day of each April. R. S. c. 13, § 14.

The relation of inhabitant is mainly a political relation.

To render a person liable to assessment for taxes on personal property, it is essential to demonstrate that he is an inhabitant of a definite town. And it is our understanding that the word, "domicile," as used in the stipulation herewith, expresses the combination of circumstances that establish a person as an inhabitant of a town for purposes of taxation on his personal property generally. We use the word here with that meaning, and the question before us is' whether defendant's domicile, before April 1, 1930, had been changed from Portland to Cumberland.

Decisions of this court on descent and distribution of estates turn upon the same conclusion, as do questions of pauper settlement, and of taxation.

All are matters regulated under statute law. Cases arising under the statutes generally applicable to either are analogous, and decisions in one case may be cited as governing in others of the classes named.

A person may have at one time several residences, meaning houses equipped for use as his dwellings; but for the purpose of fixing his status as subject to municipal taxation he shall be deemed to have but one domicile at a time.

This invariably has been held to be the law in this state where litigation has arisen in cases of the classes mentioned above.

It is also settled that the burden of proving change of domicile is upon the one who asserts such change, and the presumption of continuance of domicile is enough, until disproved. Holyoke v. Holyoke, 110 Me. 469, 87 A. 40.

Defendant admits that her domicile and established residence for purposes of municipal taxation in the spring of 1929 was in Portland.

To avoid payment of the taxes assessed upon certain of her personal property, the sum declared upon in this writ, it is incumbent upon her to prove that, prior to April 1, 1930, she abandoned her domicile and established such in Cumberland, with the intention of remaining there for an indefinite time.

"In order to establish a domicile of choice evidence of three important facts must appear: (1) Abandonment of domicile of origin; (2) selection of a new locus; (3) the animus manendi." Mather v. Cunningham, 105 Me. 326, 74 A. 809, 812, 29 L. R. A. (N. S.) 761, 18 Ann. Cas. 692.

Did defendant here change her domicile before April 1, 1930?

And, if she changed it, did she do so with the intention of making Cumberland the site of her domicile for an indefinite time?

We must find from the record before us, by direct proof, so far as proof may be found, and from inferences logically drawn, affirmative answers to both questions, or otherwise the tax was legally assessed and must be paid.

The act of change from a home is easily demonstrable.

To determine the intent of the actor is sometimes more difficult.

The purpose with which one changes his residence may be expressed in testimony by the party alleging change of residence. Parsons v. Bangor, 61 Me. 457; Knox v. Montville, 98 Me. 493, 57 A. 792.

So, too, oral declarations made by the party whose domicile is in dispute, as to the intent with which removal was accomplished, when part of the res gestae, are admissible in evidence in a contest to which he is a party. Gorham v. Canton, 5 Me. (5 Greenl.) 266, 17 Am. Dec. 231; Wayne v. Greene, 21 Me. 357; Corinth v. Lincoln, 34 Me. 310; Etna V. Brewer, 78 Me. 377, 5 A. 884; Knox v. Montville, supra.

"Residence, being a visible fact, is not usually in doubt. The intention to remain is not so easily proved. Both must concur in order to establish a domicile. * * *

"And, as both are known to be requisite in order to subject one to taxation, or to give him the right of suffrage, any resident who submits to the one, or claims the other, may be presumed to have such intention." Gilman v. Gilman, 52 Me....