In re Lassin's Estate

• Decision Date: 11 April 1949
• Docket Number: 30723.
• Citation: In re Lassin's Estate, 204 P.2d 1071, 33 Wn.2d 163 (Wash. 1949)
• Court: Washington Supreme Court
• Parties: In re LASSIN'S ESTATE.

204 P.2d 1071

33 Wn.2d 163

In re LASSIN'S ESTATE.

No. 30723.

Supreme Court of Washington

April 11, 1949

Department 2

In the matter of the estate of Ernest C. Lassin, deceased. From an order denying a motion by deceased's brothers to revoke letters of administration issued to R. A. Noyes on the petition of Ruth Lassin, deceased's widow, the brothers appeal.

Affirmed.

Appeal from Superior Court, Kitsap County; Frank W. Ryan, judge.

Ralph Purvis, of Bremerton, for appellants.

Marion Garland, Sr., and Helen Graham, both of Bremerton, for respondent.

ROBINSON Justice.

Ernest C. Lassin died in Adak, Alaska, on October 29, 1946. This proceeding involves an attack upon the appointment of the administrator of his estate, in a probate initiated in Kitsap county by Ruth Lassin, as his surviving spouse, the attack being made by his three brothers residing in Wisconsin. The lower court denied the motion of the brothers to revoke the letters of administration, and it is from this order that they have taken this appeal.

In 1944, Mr. and Mrs. Lassin came from Wisconsin to Bremerton to live. Lassin secured employment in the Bremerton Navy Yard and remained there until July, 1946, when he was transferred to Alaska. Prior to this transfer, he was given a thirty-day leave. He and his wife withdrew their cash and postal savings from their bank in Bremerton and drove in their automobile to Green Bay, Wisconsin. The cash and postal savings were deposited in a bank there. Mrs. Lassin remained with her family in Green Bay, while Lassin returned to Bremerton and went from there to Alaska.

Mrs Lassin did not return to Bremerton until February, 1947 subsequent to Lassin's death. On July 1, 1947, she signed a petition for the appointment of R. A. Noyes as administrator of his estate. In this petition, she described Lassin as a resident of Green Bay, Wisconsin. However, on October 20, she filed a 'Motion and Affidavit for Correction of Petition for Letters of Administration,' alleging that she had been in error in stating that her husband's residence was Green Bay, and that, in fact, it was Bremerton. The court directed that the petition be amended to so state.

While in Alaska and prior to his death, Lassin had been granted a final decree of divorce by the Kitsap county superior court, but, in December, in an action brought by Mrs. Lassin against R. A. Noyes as administrator, this decree was vacated by the court which had granted it, by reason of Lassin's fraud in obtaining it. Subsequently, the three brothers introduced their motion, alleging that, at the time of his death, decedent was a resident of Green Bay, Wisconsin, and that he left no property whatsoever in Kitsap county or in the state of Washington; challenging the jurisdiction of the Kitsap county court; and praying that the letters of administration which had been issued to R. A. Noyes be revoked and canceled.

The applicable provisions of the Washington probate code are located in Rem.Rev.Stat. § 1376, and read as follows:

'Wills shall be proved and letters testamentary or of administration shall be granted:

'(1) In the county of which deceased was a resident or had his place of abode at the time of his death.

'(2) In the county in which he may have died, or in which any part of his estate may be, he not being a resident of the state.

'(3) In the county in which any part of his estate may be, he having died out of the state, and not having been a resident thereof at the time of his death.'

As it is admitted that decedent died in Alaska and that he left no property in the state of Washington, the only question involved in this case is, as respondent has stated it: Was Ernest C. Lassin a resident of Kitsap county, Washington, at the time of his death? If the answer be in the affirmative, the lower court was correct in dismissing the brothers' motion.

It is well established that the word 'residence,' as used in the abovequoted statute, should be construed to mean 'domicile.' Buchholz v. Buchholz, 63 Wash. 213, 115 P. 88, Ann.Cas.1912D, 395; State ex rel. Brisbin v. Frater, 1 Wash.2d 13, 95 P.2d 27, and cases there cited. Every person has a domicile, and, in general, no person can have more than one domicile. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758; Hite's Adm'r v. Hite's Ex'r, 265 Ky. 786, 97 S.W.2d 811; Restatement, Conflict of Laws, p. 23, § 11. A domicile once established continues until it is superseded by a new domicile. Polk v. Polk, 158 Wash. 242, 290 P. 861; Kankelborg v. Kankelborg, 199 Wash. 259, 90 P.2d 1018; In re Eaton's Will, 186 Wis. 124, 202 N.W. 309; Restatement, Conflict of Laws, p. 47, § 23. Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile, State of Texas v. State of Florida, 306 U.S. 398, 59 S.Ct. 563, 830, 83 L.Ed. 817, 121 A.L.R. 1179; and in every case of change of domicile, these two things are indispensable and must be shown. Sun Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027; In re Estate of Grant, 34 Haw. 559; In re Mullins, 26 Wash.2d 419, 174 P.2d 790.

In the present case, there seems to be no contention that Mr. and Mrs. Lassin did not intend to establish a residence, or domicile, in Bremerton when they moved there in 1944. Mrs. Lassin was allowed, without objection, to testify as follows:

'Q. Mrs. Lassin, you lived in the State of Washington how long? A. Since July of 1944.

'Q. Since July, 1944? A. That is right.

'Q. And your husband lived here all that time? A. That is right.

'Q. You established your residence, here? A. Yes.'

Further, appellants seem to take for granted that the Lassins had established their domicile in Bremerton when, in their brief, they state one of the questions involved in the case to be as follows:

'1. Upon a petition to revoke letters of administration for lock of jurisdiction, where the decedent was a resident of Bremerton, Washington, and left there to take employment in Alaska, in which place he subsequently died, leaving no property in the State of Washington, was there sufficient proof of change of residence to warrant the granting of the petition to revoke letters of administration?' (Italics ours.)

If Lassin had established a residence, or domicile, in Bremerton in 1944, then, in order to have terminated it, he must have acquired a new residence, or domicile, elsewhere. It is here that the fatal defect in appellants' case appears, a defect that they have apparently recognized, since, in their motion, they contend that Lassin's residence at the time of his death was Green Bay, and, in their brief, they appear to argue that it was Alaska. The evidence, however, does not support the conclusion that it was Lassin's purpose to make either place his home. As for Green Bay, the testimony indicates that he went there on a thirty-day leave, for the purpose of a visit, and to leave his wife with her family during his stay in Alaska. He did not rent a home or buy any property there. It was shown that he transferred his savings to the bank in Green Bay, but, as...