Kerby v. Town of Charlestown

• Decision Date: 08 November 1916
• Docket Number: No. 1377.,1377.
• Citation: 99 A. 835,78 N.H. 301
• Parties: KERBY et al. v. TOWN OF CHARLESTOWN. SAME v. STATE.
• Court: New Hampshire Supreme Court

99 A. 835

78 N.H. 301

KERBY et al.

v. TOWN OF CHARLESTOWN.

SAME

v. STATE.

No. 1377.

Supreme Court of New Hampshire. Sullivan.

Nov. 8, 1916.

Transferred from Superior Court, Sullivan County; Chamberlain, Judge.

Petition by Margaret Kerby and others against the Town of Charlestown for an abatement of a tax assessed against plaintiff's testatrix, and petition for leave to file copy of will of testatrix. From a decree of the probate court dismissing petition for leave to file a copy of the will, Margaret Kerby and others appeal. The town excepted to finding that certain of testatrix's property was not taxable. Transferred to Supreme Court. Exception of town sustained in part, state's exception sustained, plaintiff's appeal dismissed, and decree of the probate court affirmed.

Petition for an abatement of the tax assessed against Mrs. Paris, the plaintiff's testatrix, by the town of Charlestown in 1914, and an appeal from a decree of the probate court dismissing the plaintiff's petition for leave to file a copy of Mrs. Paris' will. The court found that Mrs. Paris, who had resided in Charlestown for many years, neglected to comply with the provisions of P. S. c. 57, in 1912, and was doomed. The same thing happened in 1913, and she decided to acquire a residence in New York City, where she resided before coming to Charlestown. In pursuance of this determination she went to New York some time in September, 1913, and stopped at the Manhattan Hotel, where she was accustomed to stay when in that city. Some time about October 31st she consulted an attorney, and in pursuance of his advice did the various things on which the plaintiffs rely to sustain the court's findings that she was a resident of New York on April 1 and May 2, 1914. After doing these things she stayed at the hotel for a few days, and then went to Stockbridge and then to Boston, where she stayed until about the 1st of December. She then returned to New York, where she remained a few days, and then returned to Charlestown, and stayed until some time in April, when she again went to New York, where she stayed for some three weeks. She was then taken sick, and started to return to Charlestown but died in Boston on May 2, 1914. The court found that Mrs. Paris' money at interest was of the value of $157,394.30, but that it was not taxable in Charlestown, and the town excepted. The court sustained the plaintiff's appeal from the decree of the probate court, and the State excepted.

Streeter, Demond, Woodworth & Sulloway, of Concord, for plaintiffs. Jones, Warren, Wilson & Manning, of Manchester, for defendant Town of Charlestown. James P. Tuttle, Atty. Gen., and Joseph S. Matthews, Asst. Atty. Gen., for the State.

YOUNG, J. Whether the plaintiffs should be permitted to file a copy of Mrs. Paris' will depends on where she resided at the time of her death. P. S., c. 187, § 13. The court has found that she resided in New York. Consequently the only question raised by the state's exception is whether the evidence warrants that finding. The plaintiffs rely on the fact Mrs. Paris went to New York in the fall of 1913 to acquire a domicile in that city, and, after consulting an attorney as to what she must do to effectuate her purpose, registered at the Manhattan Hotel as of New York City, hired a room by the year, changed the address on her trunk from Charlestown, N. H., to New York City, removed her securities from Manchester, N. H., to New York, made a will in which she set herself up as of New York City, and from that time on claimed to be a resident of that city. This evidence sustains the court's finding that Mrs. Paris honestly believed she was a resident of New York; but it will be necessary to consider it in connection with the other findings to determine whether it is sufficient to sustain the finding that she was such a resident on either April 1 or May 2, 1914.

A person does not acquire a new residence by merely going to another town with the intention of making it his domicile. He must not only go there with that intention, but also with the intention of residing there for a more or less definite time and making it his home. Leach v. Pillsbury, 15 N. H. 137, 138; Hart v. Lindsey, 17 N. H. 237, 243, 43 Am. Dec. 597; Concord v. Rumney, 45 N. H. 423, 427; Foss v. Foss, 58 N. H. 283; Bartlett v. New Boston, 77 N. H. 476, 93 Atl. 796. By "home" as that word is used in the law of domicile is intended what every one has in mind when he thinks of home; his principal residence; the place to which he always intends to return, or the one place he thinks of "as home. Hart v. Lindsey, 17 N. H. 235, 243. While it is common knowledge, as the plaintiffs contend, that many persons reside in different places parts of each year, that is not this case, for in so far as actual residence is concerned, the evidence shows that Mrs. Paris actually resided in Charlestown for the last 30 or 40 years of her life. In other words, the evidence shows that the only house, or, for that matter, room, Mrs. Paris actually occupied for more than a few weeks at a time during the last years of her life was in Charlestown. The question, therefore, is not which of two places in which she actually resided parts of the year was her home, but whether it can be found that she intended when she went to New York in the fall of 1913 to reside in that city and make it her home. Consequently the evidence as to what she said and did while she was in New York in the fall of 1913 must be considered in connection with the evidence as to how and where she in fact resided both before and after that visit to New York. The question, therefore, of whether it can be found that Mrs. Paris was a resident of New York in 1914 resolves itself into one of whether it can he found that when she went to New York in 1913 she intended actually to reside there and make that city her home within the meaning of home as that term is used in the law of domicile.

The fact she hired a habitable room at the Manhattan Hotel would have some tendency to sustain the court's conclusion if it. Were not for the further finding that she never intended to occupy it; for the right to occupy this room carried with it all the rights incident to living in a first-class hotel. That is rights in the parlors, toilet rooms, dining rooms, and elevators and to the services of the employés of the hotel. The inference favorable to the plaintiffs that might be drawn from the finding that the room Mrs. Paris hired was in every way habitable is, however, negatived by the findings that she never occupied this room, never even saw it, that it was not such a room as she ever had occupied or ever intended to occupy, that it was located in a part of the hotel usually occupied by man, or that "she knew she could always have other and more elegantly furnished and more...