Glassford's Estate, In re

• Decision Date: 12 November 1952
• Citation: 34 A.L.R.2d 1259,249 P.2d 908,114 Cal.App.2d 181
• Parties: , 34 A.L.R.2d 1259 In re GLASSFORD'S ESTATE. DIBBLE et al. v. BROWN. Civ. 19154.
• Court: California Court of Appeals Court of Appeals

Page 908

249 P.2d 908

114 Cal.App.2d 181, 34 A.L.R.2d 1259

In re GLASSFORD'S ESTATE DIBBLE et al. v. BROWN.

Civ. 19154.

District Court of Appeal, Second District, Division 2, California.

Nov. 12, 1952.

Harold W. Kennedy, County Counsel, and Baldo M. Kristovich, Deputy County Counsel, Los Angeles, for appellant Public Administrator.

Gibson, Dunn & Crutcher, Richard E. Davis and Frank L. Mallory, Frank J. Kashare, and Millard M. Mier, Los Angeles, for respondents.

FOX, Justice.

The Public Administrator appeals from a judgment dismissing his petition for probate of decedent's will and codicil and for letters of administration with-will-annexed.

The decedent, Grace Glassford, a widow, was for many years a resident of and domiciled in New York City. In October 1948, she came west 'thinking,' as she later stated, that she would remain a year. She arrived in Denver, Colorado, the latter part of October, living there at a hotel until the middle of January, 1949, when she came to Los Angeles. She stayed two weeks at the Biltmore Hotel; a month at the Wm. Penn Hotel; and slightly less than two months at the DuBarry Apartment Hotel. In registering at each hotel she gave her address as the Gramarcy Park Hotel, New York, and at each she took her room on a day-rate basis. During her stay at the DuBarry she spent ten days at the California Lutheran Hospital. Finally, she spent 22 days at the Shatto Sanitarium, where she died on May 21, 1949.

Upon her arrival here decedent opened a checking account at a bank near her hotel. When she moved to the DuBarry she closed that account and opened another at a branch of the same bank in the vicinity of the DuBarry, giving the latter as her address. She also gave the DuBarry as her address when she entered the hospital.

On February 9, 1949, the decedent wrote a letter to the manager of the Tuscany Hotel in New York in which she stated: 'I am a New Yorker but came West the last of October thinking I would remain a year. However, the urge to return is pretty strong and strangely enough I feel better in New York than I do here.' She then asked whether the Tuscany would have room for her soon and what its rates would be, adding that she would need time to secure a room reservation on the train for four nights and to pack her trunk. On March 14, 1949, while Mrs. Glassford was in the hospital, her income tax return for 1948 was filed with the Collector of Internal Revenue at Los Angeles, and her address given as the DuBarry.

Shortly before she left the hospital on March 22, 1949, her physician advised her that she was suffering from an inoperable, far-advanced cancer and had only a few weeks to live. On that occasion her doctor said to her, 'Your home is in New York, and your folks live in New York, and I think you ought to go back to them because you are not going to live long, and it would be pleasanter for you to be with your relatives and friends when you die than to be here among strangers.' After leaving the hospital Mrs. Glassford told one of the clerks at the DuBarry that the doctor had told her she was going to die and should return to her relatives in New York, but it didn't make sense to her to go home just to die; that she did not want to be a burden to her sister since she had plenty to do without worrying about her; and that she intended to stay here and die. In a conference with her attorney regarding a codicil to her will, at the sanitarium shortly before her passing in May, Mrs. Glassford said she did not intend to go back east; that there was no reason for her to do so; and that she did not think her condition would permit the trip.

On April 1, 1949, Mrs. Glassford made application for ten $1,000 U. S. Government bonds. On April 12 she rented a safe deposit box at the bank where she carried her checking account, and on April 23 she stored her fur coat at Bullock's Wilshire. On each of these occasions she gave the DuBarry as her address.

At the time of Mrs. Glassford's death there were in her safe deposit box in Los Angeles U. S. Government bonds of the approximate value of $58,000 and $3,000 in her checking account. Her fur coat, valued at $1,000, was in storage.

Decedent's will was admitted to probate in New York in October, 1949, but a purported codicil was denied probate in September, 1950. All the interested parties in the will and purported codicil appeared in the New York proceedings.

In May, 1950, the Public Administrator of Los Angeles County was appointed Special Administrator of decedent's estate and in the following October he was appointed Special Administrator with general powers. He took possession of the property, published notice to creditors, and filed inventory and appraisement. Bullock's filed a claim for $105, and the County of Los Angeles has a claim for 1949-50 personal property and solvent credits taxes amounting to approximately $62. Meanwhile, on August 31, 1950, the Public Administrator had filed a petition for probate of the will and codicil and for letters of administration with-will-annexed. On October 9, 1950, decedent's sister and nieces, individually, and her sister and brother-in-law, as executors of her will, filed grounds of opposition to the probate of the will and purported codicil, alleging that the decedent was a resident of New York at the time of her death, that her will had already been admitted to probate in New York, and that the probate court here had no jurisdiction to admit the will and codicil to probate and grant letters of administration. Following a trial of the issues raised by the petition for probate and the opposition thereto, a judgment was entered dismissing the petition of the Public Administrator.

The court found Mrs. Glassford was not a resident of Los Angeles County at the time of her death but that she was a resident of New York. The Public Administrator challenges the sufficiency of the evidence to support this finding. The challenge, however, is not well founded. While residence has different meanings for different purposes, Restatement, Conflict of Laws, sec. 9(e), it is plain that residence as used in section 301, Probate Code, is synonymous with domicile. The concept of domicile involves the concurrence of physical presence in a particular place with the intention to make that place one's home. 'The acquisition of a new domicile is generally understood to require an actual change of residence accompanied by the intention to remain either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode.' DeYoung v. DeYoung, 27 Cal.2d 521, 524, 165 P.2d 457, 458. The judicial concept of domicile is essentially equivalent to the lay idea of home. Restatement, Conflict of Laws, sec. 12; 61 Harv.L.Rev. 1234. It embodies a disposition towards permanence, an attitude of attachment. See Texas v. Florida, 306 U.S. 398, 425-426, 59 S.Ct. 563, 830, 83 L.Ed. 817; District of Columbia v. Murphy, 314 U.S. 441, 455, 62 S.Ct. 303, 86 L.Ed. 329. Also, domicile has a continuing quality because a person always has a domicile and does not lose one until another is acquired. Restatement, Conflict of Laws, sec. 23; Gov't Code, sec. 244(c).

It is clear that up to February 9, 1949, when Mrs. Glassford wrote the manager of the Tuscany Hotel in New York regarding a room and their rates, she was still domiciled in New York. It is claimed, however, by the Public Administrator, that her acts and attitude thereafter demonstrate an unmistakable intention to change her domicile to California. The significance of these matters must be determined in the light of Mrs. Glassford's current situation and condition.

The first event to which our attention is directed is that on March 7th Mrs. Glassford transferred her checking account to a branch of her bank which was in the immediate vicinity of the DuBarry, to which she had moved three days previously, and that she gave the DuBarry as her address. The transfer of her account was simply a matter of convenience, and, of course, she would naturally give the bank the address of the place where she was staying so as to facilitate communication. This was a normal course of conduct and without significance on the question of an intention to change her domicile to California. In this connection it should be noted that she was living at the DuBarry on a day-rate basis. On March 13 she entered the hospital. Her income tax return was filed for her on the following day with the Collector of Internal Revenue at Los Angeles, and it gave the DuBarry as her address. In view of the approaching deadline for filing the return, the distance between Los Angeles and New York, and Mrs. Glassford's physical condition, it is entirely likely that the return was filed here as a matter of convenience and without any thought that it would have any effect upon her domicile.

It was shortly before decedent left the hospital on March 22nd that she was advised by her doctor that she had only a few weeks to live. He suggested that she return to her home and relatives in New York. The critical nature of her illness is emphasized by the fact that she passed away two months later, on May 21st. She was apparently resigned to the prognosis of her doctor and realized her physical inability to travel across the country. It was in this state of desperation and helplessness that she expressed the thought that she would remain here and die. 'But knowledge that one will never again be able, on account of illness, to return home does not necessarily establish a change of domicile.' Beale on Conflict of Laws, Vol. 1, p. 173. It is also pointed out by Professor Beale, page 175, supra, that 'The mere fact that an invalid has given up the hope of returning to his old home, so long as he retains his feeling for it, is not tantamount to an intent to make a new home.' Under these circumstances the trial court could reasonably conclude that decedent's determination to...