In re Lankford's Estate

• Decision Date: 16 July 1917
• Docket Number: No. 18514.,18514.
• Parties: In re LANKFORD'S ESTATE.
• Court: Missouri Supreme Court

197 S.W. 147

272 Mo. 1

In re LANKFORD'S ESTATE.

No. 18514.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Motion to Modify Opinion Overruled July 27, 1917.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

In the matter of the assessment of a collateral inheritance tax against the estate of James D. Lankford, deceased. Appeal from judgment for the estate. Reversed and remanded for new trial.

This is a proceeding begun in the probate court of Saline county for the purpose of assessing collateral inheritance tax against the estate of James D. Lankford, deceased. The probate court held that the estate was subject to the tax, but upon an appeal to the circuit court of Saline county and a trial therein of the issues de novo, that court found that decedent was not at the time of his death a resident of Missouri, and therefore his estate was not liable to this tax, and judgment went in favor of the estate. From this judgment an appeal was taken.

The facts shown in evidence are few and simple. The movant for the assessment of this tax, whom for convenience we shall hereinafter designate as plaintiff, offered the will of James D. Lankford, called herein decedent, as containing a solemn admission of the fact of his residence in this state, and, after also offering the appraisement and other formal orders, rested. The apposite provisions of the will of decedent are the first and sixth clauses, which run in pertinent part thus:

"I, James D. Lankford, of Marshall, Saline county, Missouri, formerly of Pueblo, county of Pueblo and state of Colorado, being of sound and disposing mind, revoke all former wills by me made, and now make this, my last will and testament."

The will further provided in the sixth clause thereof that:

"In the event of the death of either of said legatees the said Belle Lankford, Paris M. Walker, Marian Garrard or Nancy Hagood leaving children or other descendants surviving them (direct descendants) as heirs, then it is my will that my said trustees shall thereupon and thereafter hold said share of such one so dying for the use and benefit of the children or direct descendants of such one who according to the laws of descent and distribution of the state of Missouri shall be entitled as heirs of such one to claim such estate."

It was further provided by other paragraphs of said will that certain trustees to administer further provisions of the will, which provisions are not here pertinent, should be appointed by the circuit court of Saline county, Mo., or by the judge thereof in vacation, and that the bonds required to be given by the trustees should be made by "some responsible corporation authorized to execute bonds in the state of Missouri as surety." It was further provided in the eighteenth paragraph of said will that in case it became necessary to administer the estate of decedent in the probate court that such administration should be had "in accordance with said trusts and the proper orders of the probate court and the laws of the state of Missouri." (Italics ours.)

On the part of the beneficiaries under said will, hereinafter for convenience called defendants, the testimony of but one witness was offered and defendants rested. The whole of the testimony for defendants, elicited from the one witness mentioned, is as follows:

"James D. Lankford was my uncle, and I was well and intimately acquainted with him during his lifetime. He was born in Saline county, Mo., and lived here until about 30 years ago, at which time he went to the state of Colorado, took up his residence there, went into business in partnership with his brother, Garrett Lankford, and made Colorado his home. This partnership continued until about 7 or 8 years ago, when it was dissolved. Since that time James D. Lankford, so far as I know, has maintained no permanent home, but has spent a portion of his time in Colorado, Oklahoma, Old Mexico, Kansas, and Missouri, probably spending more of his time in Missouri than any other one place. He had large property interests in Oklahoma, Old Mexico, Colorado, and Kansas, and would spend a portion of his time each year in these places, looking after his interests. He never voted in Missouri or asserted any of the rights of citizenship here since taking up his residence in the state of Colorado 30 years ago. He was never assessed on any property or paid any taxes on any property in Missouri since leaving here 30 years ago. At the time of his death, December 25, 1912, he had been in Marshall, Mo., with his niece since about the 1st of September, 1912, or about four months. On election day, in November, 1912, knowing that he was a great admirer of Woodrow Wilson, I asked him if he was not going to vote for his friend Wilson, and he said, `No; I have no vote here.' He said nothing further in regard to the matter. I did not know of his having any settled home after the dissolution of his partnership in Colorado."

The court made a special finding of facts upon the one question of whether decedent was or was not at the time of his death a resident of Missouri, and held that:

"James D. Lankford, at the time of his death, had not established his domicile in Saline county, Mo., and was not a resident of said county within the meaning of the statute in such cases made and provided"

— and thereupon rendered judgment that the estate of decedent was not liable for any tax whatever under the collateral inheritance tax law. It will be seen, therefore, that the question of the residence of decedent is the sole question in the case.

Orville M. Barnett, of Columbia, and A. B. Hoy, of Marshall, for appellant. Robert M. Reynolds and Albert R. James, both of Marshall, for respondents.

FARIS, J. (after stating the facts as above).

This is a case at law tried before the court sitting as a jury. No instructions were asked or given. The court found against the plaintiff upon the facts, holding that the evidence offered by plaintiff failed to show that decedent at his death was domiciled in Saline county. It is urged that this finding is against the evidence, and we are asked by plaintiff to reverse the case for this reason. Against this contention defendants' learned counsel urge that since the case is a law case, tried before the court without a jury, since no objections or exceptions (save to the overruling of the motion for a new trial) were taken upon the trial, and no instructions were asked, given or refused, the finding of the learned judge nisi is absolutely conclusive upon us here upon appeal.

If there is any substantial evidence to sustain the judgment below, we are required to sustain it. The finding of facts by the learned trial judge in a jury-waived case at law comes to us attended by all the presumptions of verity which clothe the verdict of a jury (38 Cyc. 1946; 2 R. C. L. 206; Woods v. Johnson, 264 Mo. loc. cit. 293, 174 S. W. 375; Hatton v. St. Louis, 264 Mo. 634, 175 S. W. 888), and in such case the finding of the trial judge will not be disturbed upon appeal if such finding be supported by any substantial evidence whatever. The rule to be followed in such cases is that, while we will not weigh the evidence, we will interfere when there is no evidence whereon to base the judgment, although no instructions are asked or given. State ex rel. v. Guinotte, 156 Mo. loc. cit. 521, 57 S. W. 281, 50 L. R. A. 787; Moore v. Hutchinson, 69 Mo. 429; Wilson v. Albert, 89 Mo. 544, 1 S. W. 209; May v. Crawford, 150 Mo. loc. cit. 528, 51 S. W. 693; Garrett v. Greenwell, 92 Mo. 125, 4 S. W. 441; Robbins v. Phillips, 68 Mo. 100; Whitsett v. Ransom, 79 Mo. 258; Hartt v. Leavenworth, 11 Mo. 629; Hubbard v. Fuchs, 164 Mo. 430, 64 S. W. 98. Applying this rule to the facts before us in the instant case, we think there was no substantial evidence contravening the case made by plaintiff's proof of decedent's solemn written admissions, and conclude that the judgment ought to have been for appellant.

Residence is largely a matter of intention. Lankford v. Gebhart, 130 Mo. 621, 32 S. W. 1127, 51 Am. St. Rep. 585. This intention is to be deduced from the acts and utterances of the person whose residence is in issue. Here by a most solemn written admission, made in the very will by which the property was devised to defendants, decedent said that his residence on the 12th day of April, 1912, was at "Marshall, Saline county, Missouri," and that his former residence had been "Pueblo, county of Pueblo and state of Colorado," which admission plainly indicated both an abandonment of a former or old residence and the acquisition of a new one. Johnson v. Smith, 43 Mo. 499. There is not a scintilla of proof that decedent ever had a residence in but two states. He was born in Missouri. He went to Colorado, remained there about 30 years, and then in April, 1912, before his death in the December following, came back to Saline county, Mo., where his relatives live, made his will, thereafter visited divers places where he had financial interests, till September, 1912, when he came back to Saline county and there remained at the house of his niece, till he suddenly died in December, 1912.

The only contention that is made whereon is bottomed any conflict in the evidence which would serve to make applicable here the rule of reliance upon the lower court's finding is upon the decedent's statement to his nephew Walker that he (decedent) "had no vote in Missouri." Clearly this is no contradiction, for manifestly decedent had never had a domicile in Missouri since he left it 30 years before, until he came back and made his will in April, 1912. He could not vote in November, 1912, for the very simple reason that he had not then been domiciled in Missouri for one whole year. So he could truthfully have made the statement attributed to him and yet have been at his death a resident and even a citizen of Missouri. In short, the statement made to the witness Walker by decedent proves nothing, and, since...