Givernaud v. Variel

• Decision Date: 05 February 1916
• Docket Number: No. 32/592.,32/592.
• Citation: 86 N.J.Eq. 8,97 A. 49
• Parties: GIVERNAUD et al. v. VARIEL et al.
• Court: New Jersey Court of Chancery

97 A. 49

86 N.J.Eq. 8

GIVERNAUD et al.

v. VARIEL et al.

No. 32/592.

Court of Chancery of New Jersey.

Feb. 5, 1916.

(Syllabus by the Court.)

Bill in equity by Jeanne Marie Josephine Givernaud and others against Anita Variel and others. Decree for defendants.

Besson, Alexander & Stevens, of Hoboken, and Maurice Leon, of New York City, for complainants. John S. Mabon, of Hoboken, and Collins & Corbin, of Jersey City, for defendants.

LEWIS, V. C. The only question which the court considers it necessary to decide in this case is whether Barthelemy Louis Givernaud had his domicile in the state of New Jersey at the time of his death, which occurred on January 2, 1908, at Los Angeles, Cal.

For a clear understanding I will set forth at this time the facts bearing on the case: The testator, Barthelemy Louis Givernaud, was born in Lyon, France, on April 21, 1835. On April 5, 1860, he married, in France, Josephine Haour; both of them being French citizens. Two children were born of that marriage, viz., the complainants Joseph Givernaud and Noemi Josephine Marie Genin, née Givernaud, both born at Lyon, Joseph being born June 5, 1861, and Noemi on August 30, 1862. By judgments rendered February 7, 1866, and August 1, 1866, in the Civil Tribunal of Lyon, Madame Josephine Givernaud obtained a separation from her husband, dissolving the community existing between them as to their property, and giving her leave to live separate and apart from him, and the custody of their children, on the ground of "abuse and injuries" and "abandonment." He came to the United States of America in 1866, established himself in West Hoboken, obtained in 1871 a divorce in this court upon service by publication on the ground of "desertion," and thereafter contracted another marriage with Palmyre Elizabeth Lida Corriveau on the 30th day of May, 1872, and as the fruit of this second marriage a son, Charles L. Givernaud, was born to them. All three children are alive at the present time. In the course of time the testator became a very prosperous man, having factories at West Hoboken, Hackensack, and Homestead, N, J., with an office in Green street, New York City. The bill was filed by the first wife of the testator and her two children born of their marriage, but she, the first wife, died during the taking of testimony, but by stipulation the testimony stands. In the year 1873 the testator became a citizen of the United States, and from the time of his second marriage until 1896 he lived with his wife at Spring and High streets, in West Hoboken. The second wife is also deceased. The testator died on January 2, 1908, at Los Angeles, Cal., having, on or about the 4th day of November, 1907, executed a last will and testament in writing, which was admitted to probate by the surrogate of the county of Hudson on the 14th day of January, 1908.

The trust scheme contained in articles 9, 10, and 11 of the will is claimed by the complainants to be void under the New York law against perpetuities, found in Laws 1897, c. 417, § 2.

It is admitted that, if the testator was domiciled in New Jersey at the time of his death, the said trust is a legal one, and the only doubt of its legality would arise in case the court found that he was not domiciled in New Jersey at the time of his death. My own opinion is that, if the testator were domiciled in New York at the time of his death, the New York courts would have to pass on the legality of this trust scheme, and not the courts of New Jersey. However, as I have concluded that the testator was domiciled in New Jersey when he died, I find it unnecessary to decide as to whether this court would have jurisdiction to decide on the legality of the trust if he had been domiciled in New York or elsewhere than in New Jersey at the time of his death.

The testimony shows that for many years the testator devoted himself to building up his business, and after he had become successful he devoted himself more and more to theaters, concerts and other amusements. He loved to travel and visit distant countries. He became acquainted with a dentist named Torillhon, and Dr. Torillhon became his companion, the testator being willing to pay the expenses of the companionship, and they used to go together to theaters and other entertainments in New York about five times a week, coming back to West Hoboken each night. That continued until the year 1896, when the testator decided to take apartments in New York. In the winter of 1895-96, when caught in a snowstorm while returning from New York to West Hoboken, the testator said to Dr. Torillhon:

"I cannot stand these rough nights any more. I like my theater, so I think that next winter I will take a room in a hotel or somewhere in New York, so that I can enjoy my theater."

And the next fall he asked Dr. Bertini and Dr. Torillhon to rent an apartment for him in New York, which they did. His wife con tinued to live in West Hoboken until 1898 when they sold the house, and she removed to New York, but not to live with her husband, the testator. They were uncongenial, and the testator never lived with Madame Givernaud after she left Hoboken in 1898, although he used to take meals with her occasionally. His brother lived in Homestead, N. J., and a room was set apart for him there which was called "Mr. Louis' room." He had changes of clothing there and the use of a bedroom, but the defendants do not claim that he was domiciled anywhere else than in West Hoboken. Their claim is that he never changed his domicile from West Hoboken.

At all times when the question was broached the testator insisted strenuously that his domicile was New Jersey, and he went there to have his will drawn up in accordance with the laws of the state of New Jersey. The witness Joseph Braubach, however, testified that he overheard him saying to two gentlemen in New York, in his apartment, that he was glad he was through with West Hoboken. That might mean, "I am glad I don't have to go back there nights," and, in view of all his other statements, I must conclude that that is what he did mean; he certainly was not through with West Hoboken, as his factories remained there. He lived in many different apartments in New York, and he was away from New York much more than he was in New York. At the time of his death, shortly after he made the will in suit, he had no property in New Jersey, but kept his fortune, consisting of personal property, amounting to about $300,000, in a safe deposit vault in New York. In 1898 he made an extended trip to the West with Dr. Torillhon, and then returned to New York, staying there two weeks, and then took several short trips before going to Europe. In 1899 they went to California, to Hot Springs, to Glenwood Spa, and then came back to New York. The summer was spent at Atlantic City. Early in 1900 Mr. Givernaud again went to California. A few weeks after his return from California he went to Europe, accompanied by his son Charles and the wife of Charles, returning in the fall to New York. They then went to Atlantic City, and came back to stay in New York, making short trips. These returns were all to his son's apartments, with the exception of the return from California, when he went to the Von Hoffman Flats. In 1901 the testator, his son Charles and wife, and Dr. Torillhon returned from Los Angeles and Honolulu to the New York apartment in Sixty-Eighth street. He spent the summer of 1901 at Atlantic City, and returned in the fall, making short trips...