In Re Michelsohn's Will., 6901.

• Decision Date: 28 April 1944
• Docket Number: No. 6901.,6901.
• Parties: In re MICHELSOHN'S WILL.
• Court: New Jersey Prerogative Court

37 A.2d 118

In re MICHELSOHN'S WILL.

No. 6901.

Prerogative Court of New Jersey.

April 28, 1944.

Proceeding in the matter of the appeal from the decree of the Orphans' Court of the County of Monmouth, admitting to probate a certain paper writing as the last will and testament of Solomon Michelsohn, deceased, and decree awarding counsel fees. On petition of appeal.

Decree admitting will to probate affirmed, and decree awarding costs and counsel fees reversed.

1. A person may have several residences at the same time, but only one domicile.

2. Domicile once established continues until another is acquired. A new domicile cannot be acquired without abandonment of the old.

3. The burden of proof of a change of domicile is upon him who asserts it.

4. A change of residence for a special purpose, such as taxation benefits, or a period of seasonal residence in obedience to the demands of health, does not necessarily amount to a change of domicile. Nor are declarations as to the place of domicile controlling where they are in conflict with the fact, or were prompted by a desire to avoid taxation.

5. Where the issue in a will contest concerns only the court's jurisdiction, the validity of the will not being challenged, R.S.3:2-51, N.J.S.A., does not authorize the allowance of counsel fees and costs to an unsuccessful caveator. Nor are such allowances warranted under the provisions of R.S.2:31-86 OR R.S.2:29-132, N.J.S.A. James S. Kline, of Trenton, and David Goldstein, of Asbury Park, for appellant-appellee Harold Love.

Bertram S. Grand, of Newark, and Joseph Silverstein, of Asbury Park, for appellants-appellees David Michelsohn and Alice Kohn, executors, etc., and others.

Parsons, Labrecque & Borden, of Red Bank, for appellants Sylvia M. Drover and Adele M. Becker.

BERRY, Vice Ordinary.

This controversy involves two appeals from two orders or decrees of the Monmouth County Orphans' Court.

The first is an appeal of Harold Love, executor of the will of Mamie Michelsohn, deceased, who was the widow of testator and the caveatrix in this proceeding, from a decree of the Monmouth County Orphans' Court admitting to probate the last will and testament of Solomon Michelsohn, deceased. During the course of the proceedings in the Orphans' Court, the caveatrix died and this appellant was substituted as caveator.

The second is an appeal by the executors of the testator from that part of an order or decree of the Monmouth County Orphans' Court awarding costs and counsel fees to proctors of the caveatrix. The two appeals have been consolidated.

In the Orphans' Court objection to the probate of the will was upon two grounds: first, lack of jurisdiction in the Monmouth County Orphans' Court because, as it was alleged, the testator, at the time of his death, was domiciled in the State of Florida; and second, that testator had executed a later will. The second ground was abandoned at the hearing before the master to whom the cause was referred. The master found that the testator was domiciled in New Jersey, and the report of his finding was confirmed by the Orphans' Court. The sole question to be determined on this branch of the case is that of domicile.

The facts touching this question are as follows: Solomon Michelsohn died in Orlando, Florida, on March 9, 1942, at the age of ninety-four. In 1896, or thereabouts, he established a home in and became a resident of the Borough of Belmar, Monmouth County, New Jersey, where he became active in business and civic affairs, and the owner of considerable property in that vicinity. His family was reared in Belmar and he was actively identified with the community until the date of his death. He was a co-founder of the Jewish Synagogue of Belmar and continued as a member thereof until he died. He was not a member of any synagogue in Florida. He owned a cemetery plot located near Belmar and his body was brought from Florida and interred therein. For upwards of thirty years prior to his death it had been his custom to spend a portion of the year, particularly the winter months, in Florida, and as his age advanced and his health failed the periods of his sojourn in Florida were increased until in the latter years of his life he spent more time in Florida than in New Jersey. More than twenty years ago he purchased a cottage in Orlando, Florida, where he resided during the winter months, but he disposed of it shortly before his death. Until about five or six years before his death he had been a registered voter of Belmar, but in 1936 he registered and voted in the State of Florida and applied for and received a homestead exemption of taxes. In numerous legal documents which he executed, and also in his last will and testament, he is mentioned as being ‘of the Borough of Belmar, County of Monmouth and State of New Jersey’. There are also many legal documents executed by him in which he is referred to as residing in Orlando, Florida. In applying for his homestead tax exemption in Florida, he signed and swore to a statement that he was a bona fide resident of the State of Florida, and this statement was subsequently repeated at various times on the renewal of his application for the tax exemption. His 1939, 1940 and 1941 income tax returns were filed in Florida, and his address given therein as Orlando, Florida. The 1939 return recites that his income tax return for the previous year was filed in New Jersey. However, in that same year, 1939, he had remodeled his Belmar home, installed a new heating system therein because ‘there is a time coming when I am going to be too old to travel and I want a home. I am tired of moving around’. (He was then over ninety years of age.)

The law of this state touching the question of domicile is well settled. A person may have several residences at the same time, but only one domicile. A domicile once established remains the domicile until another domicile is acquired, and a new domicile cannot be acquired without an abandonment of the old. The burden of proof to establish that a change of domicile has occurred rests upon the party asserting it. In Re Dorrance's Estate, 115 N.J.Eq. 268, 170 A. 601, affirmed Dorrance v. Thayer-Martin, 116 N.J.L. 362, 184 A. 743. See also Cadwalader v. Howell, 18 N.J.L. 138; Stout v. Leonard, 37 N.J.L. 492; Harral v. Harral, 39 N.J.Eq. 279, 51 Am.Rep. 17; Firth v. Firth, 50 N.J.Eq. 137, 24 A. 916; Watkinson v. Watkinson, 68 N.J.Eq. 632, 60 A. 931, 69 L.R.A. 397, 6 Ann.Cas. 326; Givernaud v. Variel, 86 N.J.Eq. 80, 97 A. 49, affirmed Plahn v. Variel, 87 N.J.Eq. 654, 103 A. 1054; Rinaldi v. Rinaldi, 94 N.J.Eq. 14, 118 A. 685; Schweitzer v. Buser, 190 A. 89, 15 N.J.Misc. 217; State of Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817, 121 A.L.R. 1179; Trust Company of New Jersey v. Spalding, 125 N.J.Eq. 66, 4 A.2d 401.

A change of residence for a special purpose, such as taxation benefits, or a period of seasonal residence in obedience to the demands of health, does not necessarily amount to a change of domicile. State of Texas v. Florida, supra. Nor are one's declarations as to the place of domicile controlling where they conflict with the fact, or were prompted by a desire to avoid taxation. Id.

It is strongly urged on behalf of the appellant that the application for a homestead exemption and his change in his voting residence from New Jersey to Florida are conclusive here on the question of domicile, and that they irrefutably prove a change of domicile in 1936. But in this connection it must be borne in mind that the testator, although apparently a man of considerable business acumen, who had acquired a substantial competence, could neither read nor write the English language, and his change of voting residence was solely for the purpose of obtaining a homestead tax exemption on his Florida property. It is hardly likely that when he signed the application for the homestead exemption he had any accurate knowledge of its contents, or purport, or any thought that it had any bearing upon the question of his domicile. The numerous legal documents which he signed, including the will here in controversy, in which he was described as ‘of Belmar, N. J.’, or ‘of Orlando, Florida’, dependent upon the scrivener's own idea, support this inference. While such recitals are evidential, they are not by any means controlling. In Re Benson's Will, 92 N.J.Eq. 618, 114 A. 456. And in this controversy they are of little value. There are as many on one side of the question as on the other.

The testator had a ‘special purpose’ (Harral v. Harral, supra) for registering and voting in Florida, viz., a homestead tax exemption. But at the time of his death that special purpose had ceased to exist and he no longer had any ‘homestead’ property or any physical ties in that state. He had then sold his Florida property, and it is highly significant that in that sale he also disposed of all of its furnishings.

It is conceded that from 1896 to 1936 the testator was not only a resident of, but was domiciled in New Jersey. Unless he abandoned that domicile, when he...