Guilfoil v. Hayes

• Citation: 169 Va. 548
• Parties: MARY HAYES GUILFOIL v. ADELAIDE M. GRADY HAYES, ETC.
• Decision Date: 13 January 1938
• Court: Supreme Court of Virginia

Page 548

169 Va. 548

MARY HAYES GUILFOIL v. ADELAIDE M. GRADY HAYES, ETC.

Supreme Court of Virginia, Richmond.

January 13, 1938.

Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.

1. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Change of Domicile — Elements Required. — No lapse of time is necessary in order to effect a change of domicile and only two elements are required — the fact of personal presence in the new place, coupled with the intention to make that new place a home.

2. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Change of Domicile — Necessity for Concurrence of Presence and Intention. — Neither presence alone, nor intention alone, will suffice to create a domicile of choice. Both must concur, and at the very moment they do concur the domicile is created. Thereafter no change of locality alone or, vice versa, no change of intention alone, will effect an alteration of the domicile.

3. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Change of Domicile — Character of Intention Required. — The essential fact that raises a change of abode to a change of domicile is the absence of any intention to live elsewhere or the absence of any present intention of not residing permanently or indefinitely in the new abode.

4. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Change of Domicile — Evidence of Intent. — Intent with respect to a change of domicile is to be inferred from declarations and from conduct, and evidence of expressed intent has no controlling weight if such an intent is inconsistent with the acts and general conduct of the person. In such a case, acts and conduct showing intent outweigh his declarations or expressions of intent.

5. CONFLICT OF LAWS, DOMICILE AND RESIDENCE — Change of Domicile — Sufficiency of Evidence to Establish — Case at Bar. — In the instant case, a suit attacking a will, the sole question was whether decedent had changed his domicile from New York to Virginia, in which event appellee, his wife, inherited his entire estate if he died intestate, such estate consisting of personal property only, and appellant was not such a "person interested" under section 5259 of the Code of 1936, as might maintain the suit. The evidence in support of appellee's contention showed that decedent was a Catholic priest who had retired from active service and, contrary to the laws of his church, had married and for the greater part of nearly two years had lived with his wife in Virginia; that he had stated to numerous persons that he liked Virginia and intended to make it his home; that he purchased a building site and immediately began the erection of an expensive, private residence designed for year-round occupancy; that he had disposed of his home in New York, removed his securities from New York to Virginia, and had closed his bank account in New York and opened one in Virginia. On the other hand, evidence for appellant showed that decedent told friends in New York that he was spending the winters in Virginia for his health but that New York would always be his home; that he stated in an application for an automobile license filed in New York that that State was his residence; and that New York was stated as his residence in a liability policy.

Held: That decedent had abandoned his domicile in New York and established a new domicile in Virginia.

Appeal from a decree of the Circuit Court of Princess Anne county. Hon. B. D. White, judge presiding. Decree for defendant. Complainant appeals.

The opinion states the case.

James E. Heath, for the appellant.

W. L. Parker, for the appellee.

EGGLESTON, J., delivered the opinion of the court.

Mary Hayes Guilfoil filed her bill in the court below attacking the validity of the will of William R. Hayes, which had been admitted to probate in the clerk's office of said court within the preceding two years. The bill alleged that the decedent was at the time of his death domiciled in the State of New York, and had been for many years prior thereto; that the complainant was his sole heir at law and distributee under the laws of that State; that the said William R. Hayes was mentally incompetent to make the said will; and that it had been procured through the undue influence of the defendant, Adelaide M. Grady Hayes, who was therein named as the executrix and principal beneficiary.

The defendant, Adelaide M. Grady Hayes, filed a plea to the said bill of complaint, in which she averred that the said William R. Hayes was at the date of his death domiciled in the State of Virginia; that she was his lawful wife; that there were no children born of this or of any former marriage of the said decedent, nor had the decedent ever adopted a child; that the said decedent, at the time of his death, owned no real estate, or any interest therein, but that his estate consisted wholly of personal property; that if the said decedent died intestate (as alleged in the bill), the whole of his estate descended to her, the said defendant, under the laws of the State of Virginia; and that the complainant was not a "person interested" in the said will, or in the order admitting the same to probate, as had the right, under Code, section 5259, to institute a suit to impeach the said will.

Issue was joined and the matter proceeded to trial on this plea.

The precise question submitted to the lower court was clarified and restricted by the agreement between the parties as to the following pertinent matters, both of law and fact:

The testator and the appellee (defendant below) were lawfully married and so continued until his death. His estate consisted of personal property only, the distribution of which is determined by the law of his domicile at the date of his death. If the decedent died intestate and domiciled in Virginia, his wife (the defendant below) inherited the entire estate involved in this litigation, and the contestant is not such a "person interested" under Code, section 5259, as may maintain this suit.

The defendant below admitted that prior to the latter part of the year 1933 her husband was domiciled in New York. She also conceded that the burden of establishing a change of domicile was on her as the party alleging it.

The sole question, therefore, presented to the court below was whether the preponderance of the evidence showed that there was a change of domicile from New York to Virginia.

Upon a consideration of the whole evidence, taken partly in open court and partly by depositions, the trial court decided the issue in favor of the Virginia domicile, and entered a decree dismissing the bill. Hence this appeal.

The evidence shows these facts: The testator was a Catholic priest. For many years prior to 1932 he had been pastor of a church in the city of Newburgh, New York. He was a man of means, living in a valuable residence, which he owned. In 1931 and 1932 he underwent several operations, which left his health impaired. Consequently, in 1932, he retired from active duty, became pastor emeritus of his church, and thereafter received a monthly salary of $100. He was then sixty-six years of age.

In July, 1932, the will in controversy was drawn and executed at Newburgh. The appellee, to whom he was not then married, was named as the principal beneficiary and executrix.

In September, 1932, Father Hayes and the appellee went to Norfolk and thence to Elizabeth City, North Carolina. At the latter place they were married in a civil ceremony by a justice of the peace on September 12, 1932. They returned at once to Norfolk and from there went to Virginia Beach, stopping at a hotel.

After a brief stay at the hotel Father Hayes rented a cottage at Virginia Beach, where he lived with his wife until the spring of 1933, when he returned to Newburgh. At that time his wife returned to New York City, where she had previously resided.

Upon his return to Newburgh, after having first tried in vain to sell his residence, he converted it into an apartment house and leased it for a term of five years. This property he subsequently conveyed to Mrs. Hayes. He removed his household furniture to New York City, where he stored it, telling the warehouseman that he intended to move it to Virginia Beach at a later date.

In the fall of 1933 the couple returned to Virginia Beach and occupied the Stickney cottage. Father Hayes closed his bank account at Newburgh and opened one at the Virginia Beach branch of The National Bank of Commerce at Norfolk. This was the only bank account thereafter maintained by him.

He rented a safe-deposit box in the Norfolk office of that bank and transferred all of his securities thereto from the Newburgh bank. When making this transfer he told Mr. Coleman, the custodian of the vault, that thereafter he intended to make Virginia Beach his home.

Father Hayes had considerable dealings with Mr. W. H. Terry, Jr., who was engaged in the real estate and rental business at Virginia Beach. Through Mr. Terry he rented a cottage in the fall of 1932, and the Stickney cottage in the fall of 1933. He frequently discussed with Mr. Terry his hopes and plans for a permanent home at Virginia Beach. He stated to Mr. Terry (as well as to others) that his health had been much improved by the climate there.

In the latter part of 1933 he told Mr. Terry that Mrs. Hayes had finally consented to make her permanent home at Virginia Beach, and he requested Mr. Terry to obtain for him a building site in order that he might erect a residence thereon. A satisfactory lot was acquired through Mr. Terry, and the title thereto was taken in the name of Mrs. Hayes. After the lot had been purchased Mr. Terry drew the plans for the house and conferred with the contractor. In discussing the character of the residence to be constructed Father Hayes impressed on Mr. Terry and the contractor that he intended the house as his permanent home.

The building site selected by Father Hayes and his wife was purchased from one W. F. Crockett, after protracted negotiations....