Holmes v. Holmes

• Citation: 212 Ala. 597,103 So. 884
• Decision Date: 09 April 1925
• Docket Number: 7 Div. 512
• Parties: HOLMES v. HOLMES.
• Court: Supreme Court of Alabama

103 So. 884

212 Ala. 597

HOLMES v. HOLMES.

7 Div. 512

Supreme Court of Alabama

April 9, 1925

Appeal from Probate Court, Clay County; E.J. Garrison, Judge.

A.I Holmes having been appointed administrator of the estate of J.E. Holmes, deceased, T.J. Holmes petitioned for annulment of his appointment. From a decree denying the petition petitioner appeals. Reversed and remanded.

See also, 210 Ala. 227, 97 So. 628.

James J. Mayfield, of Montgomery, and John A. Darden, of Goodwater, for appellant.

Riddle & Riddle, of Talladega, for appellee.

SAYRE J.

Appellee Holmes was appointed by the probate court of Clay county to administer upon the estate of his father, J.E. Holmes, deceased. Appellant, another son of deceased, petitioned the court to vacate the order appointing appellee alleging that deceased, at and before the time of his death, "was a resident and an inhabitant of Coosa county, Ala., and had been for some time previous to his demise; and at the time of his death he owned and possessed assets in Coosa county, Ala., the county of his residence when he died, and that said assets are still in Coosa county, Ala., and belong to his estate." In the probate court appellant's petition was denied, after which this appeal was taken.

No question is raised as to the fitness of appellee for his office of administrator. We think it may be assumed on the evidence that decedent left property in both Clay and Coosa. So then the only issue involved relates to the domicile of decedent, or, to use the phraseology of the statute, section 5741 of the Code of 1923, the issue is whether intestate, at the time of his death, was an "inhabitant" of Clay or Coosa county.

It is not necessary to undertake an elaborate statement of the principles of law governing the courts in the prosecution of such inquiries. They have been clearly stated by this court in Merrill v. Morrissett, 76 Ala. 433, and in the cases to which we shall hereafter refer. It will not be denied that prior to August 26, 1922, for more than 50 years, decedent had lived and had his domicile in Clay county, was an inhabitant of that county within the purview of the statute. In 1916 his wife, the mother of these parties, had died, and thereafter, until the date first mentioned, decedent had lived with another son, D.C. Holmes, in Clay county. In August, 1922, D.C. Holmes, who was a school teacher, was about to move to South Alabama to fill an engagement he had to teach a school in that section. Probably his future movements from year to year were undetermined; but the evidence points very conclusively to the fact he retained his home place in Clay and had at least a floating intention of returning to that county. Decedent was then quite old and needed constant care. He moved, or was moved, to the residence of petitioner at Goodwater in Coosa county, where he remained until his death some weeks later, viz., October 10, 1922. His domicile during this last period and at the time of his death must be determined as a mixed question of law and fact, and depends upon the intention, if any, with which he went to Goodwater and the intention, if any, with which he remained there. A domicile once acquired is presumed to continue until a change, facto et animo, is shown. Bragg v. State, 69 Ala. 204. If there was a change, there must have been both an abandonment of his former domicile with no present intention to return, and the establishment of another place of residence with intention to remain permanently, or, at least, for an unlimited time; the former may be inferred from the latter. Allgood v. Williams, 92 Ala. 551, 8 So. 722; Caldwell v. Pollak, 91 Ala. 353, 8 So. 546; Young v. Pollak, 85 Ala. 439, 5 So. 279; Merrill v. Morrissett, supra. In the probate court the finding was that decedent had not changed his domicile. This finding is not assigned for error. Alleged errors are based entirely upon the admission and exclusion of evidence. The foregoing summary of the facts and statement of well-settled principles of pertinent law have been made in order that the questions of evidence involved may be adjudged with due regard for them.

By the statute, section 5741, supra, "Courts of probate, within their respective counties, have authority to grant letters of administration on the estates of persons dying intestate, as follows: (1) Where the intestate, at the time of his death, was an inhabitant of the county," and in other cases about which this appeal is not concerned. Where the fact of inhabitancy does not exist, the grant of administration is not void, but may be avoided by a direct proceeding for that purpose. Coltart v. Allen, 40 Ala. 155, 88 Am.Dec. 757; Barclift v. Treece, 77 Ala. 531. The court had, therefore, jurisdiction of the issue presented by appellant's petition.

We see no reversible error in the first ruling assigned. Petitioner asked:

"How long has it been since he [decedent] lived in Clay county? Did he have any home there?"

Defendant's objection was sustained, we suppose, because the question seemed to assume that decedent had abandoned his residence in Clay. In this the court was right. As for the information which it is presumed petitioner sought by the second branch of the question, he had that when the witness answered a moment later that decedent had lived in Clay county with petitioner's bro...