Mather v. Cunningham

• Decision Date: 17 April 1909
• Citation: 74 A. 809,105 Me. 326
• Parties: MATHER et al. v. CUNNINGHAM et al.
• Court: Maine Supreme Court

74 A. 809

105 Me. 326

MATHER et al.

v. CUNNINGHAM et al.

Supreme Judicial Court of Maine.

April 17, 1909.

(Official.)

Appeal from Supreme Judicial Court, Waldo County, at Law.

From an order of the probate court appointing Albert W. Cunningham administrator of the estate of Henry H. Cunningham, Augusta C. Mather and Helen E. Berry appeal. Case reported. Decree reversed.

The appeal was heard at the April term, 1908, of the Supreme Judicial Court, in said county, sitting as the Supreme Court of Probate.

At the conclusion of the evidence then presented some of which was in the form of admissions, the presiding justice made the following order: "This case having come on to be heard by me at the April term of the Supreme Judicial Court in Waldo county, I, the undersigned justice, being of opinion that questions of law are involved of sufficient importance and doubt to justify the same, and the parties agreeing thereto, the same is reported to the law court, and upon so much of the foregoing admissions and evidence as is legally admissible, together with the evidence to be taken by Lottie E. Lawry, commissioner appointed by the court for that purpose, the law court is to determine the rights of the parties."

The case is stated in the opinion.

The allegations in the petition for administration filed in the probate court, Waldo county, are as follows:

"Respectfully represents Edward R. Cunningham of Washington, D. C, and Albert W. Cunningham, of Rockland, in Knox county, that Henry H. Cunningham who last dwelt in Belfast, in said county of Waldo, died on the 10th day of June, A. D. 1905, in Shanghai, China, intestate; that he left estate to be administered, to wit, personal estate to the amount of at least §20; that your petitioners are interested in said estate as heirs at law and next of kin; that said deceased left no widow, whose name is——, and as his only heirs at law and next of kin, the persons whose names, residences, and relationship to the deceased are as follows:

Name. Residence.

Relationship.

Edward R. Cunningham, Washington D. C,

Brother.

Albert W. Cunningham, Rockland, Me.,

Brother.

Helen E. Berry, Rockland, Me.,

Sister.

Mrs. A. C. Mather, Rockland, Me.,

Sister."

The "Reasons of Appeal" are as follows

"(1) Because the probate court in and for the county of Waldo had no jurisdiction in the premises.

"(2) Because upon the allegations in the petition on which said degree was founded, that said Cunningham last dwelt in Belfast in said county, said probate court had no jurisdiction.

"(3) Because said probate court had no jurisdiction to appoint an administrator upon the estate of said Henry H. Cunningham, for the reason that said Cunningham was not at the time of his death either an inhabitant or a resident of the county of Waldo, did not leave personal estate to be administered in said county, did not leave debts to any amount, and did not own any real estate in said county, and none of his estate was afterwards found therein.

"(4) Because the facts set out in said petition upon which the jurisdiction and action of said court are predicated, viz., that the said Henry H. Cunningham last dwelt in said Belfast, and that there was at the time of filh;g said petition any estate of said Cunningham to be administered, are false and contrary to fact, and were well known by the petitioners asking for such decree so to be.

"(5) Because said Henry H. Cunningham was not at the time of his decease a resident or inhabitant of said Belfast, but was a resident and inhabitant of Shanghai, China.

"(6) Because there was no personal estate of said Henry H. Cunningham at the time of filing said petition to be administered.

"(7) Because the estate of said Henry H. Cunningham had, prior to the filing of said petition, been entirely settled and closed up, and the estate distributed, by a competent court having jurisdiction thereof under the Constitution and law of the United States, to wit, the Consular Court of said Shanghai, China, by the action of which court all parties interested therein were bound and concluded.

"(8) Because any jurisdiction assumed by said probate court or by the Supreme Court of Probate is in conflict with and in violation of the Constitution and laws of the United States, and draws in question the validity of the action and authority of the Consular Court of said Shanghai, exercised under and by virtue of the authority of the Constitution and laws of the United States, the last will and testament of said Cunningham having been duly proved, allowed, and settled, and his estate distributed thereunder by said Consular Court, by virtue of said authority by which acts all parties interested are bound and concluded.

"(9) Because said Henry H. Cunningham, a citizen of the United States, but domiciled, residing, and being an inhabitant of Shanghai, China, died abroad, to wit, at said Shanghai, and by lawful testamentary disposition appointed one E. H. Dunning to take charge of and manage all of his property, and gave special directions in relation thereto, and all the property of said Cunningham was, by virtue of the laws of Congress applicable thereto, taken possession of, managed, and disposed of by the said Dunning in accordance with said directions, and there is, and was at the time of taking out of said administration, no property of the said Cunningham remaining, and over the property so disposed of by said Dunning under said directions this court has and can exercise no jurisdiction.

"(10) Because said Henry H. Cunningham left a last will and testament, and named an executor therein."

The will of the decedent is dated at "Shanghai, June 13, 1909," and was executed in the presence of two witnesses only, and begins as follows: "This is the last will of me Henry H. Cunningham, of Belfast, Maine, U. S. A. and residing in Shanghai, China."

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and BIRD, JJ.

Littlefield & Littlefield and Arthur S. Littlefield, for appellants. W. Henry White and Dunton & Morse, for appellees.

SPEAR, J. This is an appeal from the decree of the probate court for Waldo county, dated September 11, 1906, appointing Albert W. Cunningham administrator of the estate of Henry H. Cunningham, deceased, and comes here on report. The agreed facts show that Henry H. Cunningham was born in 1838, in Swanville, county of Waldo, Me., of pa rents who were citizens of the state of Maine and resident and domiciled in said county and state. His parents continued to reside in Waldo county, Me., until 1865, when they removed to Manassas, Va. He resided with his parents in Waldo. county in this state continuously from, his birth until May 3, 1853, the last three years at Belfast, Me. In May, 1853, at the age of 15 he went to sea. In 1854 he went to Australia. About 1857 he was for a time a pilot on the river at Shanghai, China. He was never married, and at the time of his death his only heirs and next of kin were two brothers and two sisters. He died at Shanghai June 10, 1905, leaving an estate of personal property valued at over $50,000. He left a will in which he undertook to dispose of his estate, executed in the presence of two witnesses. After his death proceedings were had before the United States Consul at Shanghai, China, for the settlement and distribution of his estate, and the various legatees have received their distributive shares, through the method usually observed there in the settlement and distribution of similar estates. The appellees, however, deny the right of the Consular Court at Shanghai to thus settle and distribute the estate of the decedent, upon the ground that he had never acquired a domicile in Shanghai; that his domicile continued, during all the years of his absence, to be in Waldo county; that his will was not executed in accordance with the laws of Maine, having but two witnesses; and that his estate should be administered here as intestate property. Consequently they applied to the probate court for the county of Waldo for the appointment of an administrator to settle the estate. The appointment was made, from the decree of which the appeal before us was taken.

It therefore appears that but two issues, one of fact and one of law, are involved in the determination of this case. Each presents the same question: Did the decedeut have a domicile in Shanghai at the date of his death (1) as a matter of fact; (2) as a matter of law? The burden is upon the appellants to establish the affirmative of both issues. In re Tootal's Trust, 23 Ch. Div. 532. We will first proceed to the issue of fact. Assuming, arguendo, that the decedent could acquire a legal domicile in Shanghai, do the necessary facts appear to support this conclusion? Domicile may be established in different ways, but two of which are involved in this case, domicile of origin and domicile of choice. It is conceded that the decedent had a domicile of origin in Waldo county. That domicile continued, whatever the wanderings of the decedent, until he acquired a new one in some other locality. In order to establish a domicile of choice evidence of three important facts must appear: (1) Abandonment of domicile of origin; (2) selection of a new locus; (3) the animus manendi. Technically, proof of (2) and (3) necessarily establishes (1). Putting these facts in the form of a definition, Gilman v. Gilman. 52 Me. 165, 83 Am. Dec. 502, says: "Domicile is said to be the habitation fixed in any place, without any present intention of removing therefrom." While the term "domicile" seems to possess more or less elasticity, there can be but one domicile of testacy or intestacy. It is the latter sense in which it will be here treated.

We deem it unnecessary to consume much time in discussing the questions of fact. The evidence shows that the decedent was in Waldo county but once from the time he left it to the time of his death. In 1866 he returned to visit his father and mother, only to...