Mellon Nat. Bank & Trust Co. v. Commissioner of Corporations and Taxation

• Decision Date: 13 July 1951
• Citation: 100 N.E.2d 370,327 Mass. 631
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MELLON NAT. BANK & TRUST CO. v. COMMISSIONER OF CORPORATIONS AND TAXATION.

Page 370

100 N.E.2d 370

327 Mass. 631

MELLON NAT. BANK & TRUST CO. v. COMMISSIONER OF CORPORATIONS AND TAXATION.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued May 8, 195s.

Decided July 13, 1951.

F. M. Myers, Pittsfield (F. M. Myers, Jr., Pittsfield, with him), for the petitioner.

H. W. Radovsky, Asst. Atty. Gen. (G. Luftman, Boston, with him), for the Commissioner of Corporations and Taxation.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and WILLIAMS, JJ.

WILKINS, Justice.

This is a petition for a binding declaration as to domicil of Annie-May Hegeman at the time of her death. The petition, purporting to be brought under G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1, also conforms to the provisions of G.L. (Ter.Ed.) c. 65, § 30. The probate judge entered a decree that she was domiciled in Lenox in this Commonwealth, rejecting the petitioner's contention that her domicil was in Pittsburgh in the Commonwealth of Pennsylvania. The petitioner appealed.

This appeal presents no question of conflict in oral testimony. Not only does none appear in the reported evidence, but the arguments addressed to us on both sides do not assail the correctness of the findings contained in the judge's report of the material facts found by him. See G.L. (Ter.Ed.) c. 215, § 11. Indeed, the appealing party expressly disclaims doing so. The present issue is the correctness of the ultimate conclusion as to domicil, the ascertainment of which is mainly a question of fact. Feehan v. Tax Commissioner, 237 Mass. 169, 171, 129 N.E. 292; Levanosky v. Levanosky, 311 Mass. 638, 642, 42 N.E.2d 561; Hopkins v. Commissioner of Corporations and Taxation, 320 Mass. 168, 173, 68 N.E.2d 659. Here domicil has been ascertained as a conclusion recited in the decree and drawn from primary findings stated in a full and complete report of material facts. Hence, there is no occasion to inquire whether any findings are plainly wrong when the sole dispute is confined to an inference by which we are not bound. Poland v. Beal, 192 Mass. 559, 561-562, 78 N.E. 728; Old Corner Book Store v. Upham, 194 Mass. 101, 106, 80 N.E. 228; Mansfield v. Wiles, 221 Mass. 75, 84, 108 N.E. 901; Bankers Trust Co. v. Dockham, 279 Mass. 199, 200, 181 N.E. 174; Newburyport Society for Relief of Aged Women v. Noyes, 287 Mass. 530, 532-533, 192 N.E. 54; Bratt v. Cox, 290 Mass. 553, 557-558, 195 N.E. 787; Veazie v. Staples, 309 Mass. 123, 127, 33 N.E.2d 262; First National Stores, Inc., v. First National Liquor Co., 316 Mass. 538, 540, 55 N.E.2d 940; MacLennan v. MacLennan, 316 Mass. 593, 595, 55 N.E.2d 928. See Hurd v. General Electric Co., 215 Mass. 358, 360, 102 N.E. 444; Malone v. Walsh, 315 Mass. 484, 490, 53 N.E.2d 126.

Annie-May Hegeman was born in New York City on May 9, 1859, and spent her minority there except when in Connecticut either at school or at the home of a grandmother. Her father died, and when the decedent was about twnety-two years of age, her mother married Henry Kirke Porter of Pittsburgh, Pennsylvania. Thereafter the three occupied as a home a large residence, known as Oak Manor, owned by Porter in the Oakland district of Pittsburgh. Porter had accumulated a substantial fortune through the H. K. Porter Company, which he had established in Pittsburgh, for the manufacture of narrow gauge locomotives. He was a civic leader and philanthropist. The decedent and her mother joined the Calvary Episcopal Church in Pittsburgh, and became very active in its affairs, the former teaching Sunday School for several years. Porter attended another church.

In 1903 Porter was elected to Congress. He, his wife, and stepdaughter took up their residence in Washington, living after the first year in a mansion purchased by him and partly furnished with furniture from Oak Manor. He served only one term in Congress, but the three continued to live in Washington and never resumed occupancy of Oak Manor. They entered into the social life of Washington. The decedent and her mother became regular attendants at St. John's Episcopal Church, where they had a pew, but they did not take their letters from Calvary Church, although urged by the Bishop of St. John's. The decedent became interested in a Washington orphanage, eventually becoming a member of the board of trustees. She was active in the work of the Smithsonian Institution and the Library of Congress. The Porters and the decedent did not usually spend more than four or five months a year in Washington. They travelled much both abroad and in this country. When not ravelling they passed the summer months at a summer residence which 'they' owned at Southampton, Long Island, New York. There were vacations in Georgia, New York, Maine, or Lenox, and periods of time at a New York City hotel. They moved around a great deal, but spent far more days in Washington than in any other one place.

They made occasional visits to Pittsburgh, where most of their closest friends lived. Porter was not active in the management of the locomotive works, but was a member of the board of directors and a substantial stockholder. His counsel continued to be the same Pittsburgh law firm. The Union Trust Company of Pittsburgh, his bankers for many years, continued in that capacity. In addition to business interests, social and philanthropic interests drew Mr. and Mrs. Porter and the decedent back to Pittsburgh from time to time. They continued to be affiliated with, and to contribute to, their Pittsburgh churches and never removed their letters. They contributed annually to other Pittsburth charities. On their visits, which were not of long duration, they always stayed at the Schenley Hotel and not at Oak Manor. They liked Pittsburgh people and Pittsburgh institutions, but they did not like living in Pittsburgh. The fog and smoke did not agree with them. During World War I they turned Oak Manor over to the Red Cross, and after the war it remained unoccupied.

Porter died at Washington on April 10, 1921, at the age of eighty-four. He was buried at Pittsburgh, and his will was probated there. Thereafter Mrs. Porter and the decedent lived in the Washington house. Shortly after his death Mrs. Porter disposed of Oak Manor by gift to the University of Pittsburgh. The following summer they were at Southampton and the next two at Lenox. On February 12, 1925, Mrs. Porter died at Washington at the age of ninety. She was buried in Pittsburgh, and her will was probated there.

After her mother's death the decedent lived in Washington, except for trips to Europe and temporary sojourns in resort areas. She kept up the practice of her mother and herself of spending the summer and autumn at Lenox, where she usually stayed at a hotel, but once or twice leased a place for the season. Occasionally she would interrupt her stay at Lenox to spend two weeks at some Maine resort. In 1932 she sold the Southampton house.

In May, 1934, the decedent purchased a house in Lenox, for $27,500. It was a substantial residence of fifteen rooms, built for year round occupancy, and surrounded by extensive grounds. There was a two car garage. She called the place 'Anne's Acres.'

She continued to hold the Washington house, in the charge of a caretaker, until 1938, when she conveyed it as a gift to the Library of Congress Trust Fund Board. She had taken much of its furniture and furnishings to use in the Lenox house, and completed its dismantling in 1937. The Lenox house was also furnished with articles from the Southampton house which had been in storage in New York and with new articles purchased in New York.

After purchasing the Lenox property, the decedent used to go there annually around the middle or latter part of May and to remain about six months. The house was opened and made ready for occupancy on May 15, and she arrived shortly thereafter. She usually stayed until the latter part of November, and on several occasions remained until after Thanksgiving. Her winters were spent in New York City, where for several years she leased an apartment the year round. It was furnished with her own things, some of which had been brought from the Washington house. In 1942 she gave up this apartment, and thereafter spent her winters at the Mayfair Hotel, where she retained a suite continuously until she died. That suite was partially furnished by her.

In 1946 because of the servant problem the decedent could not open the house. She spent the summer at a Lenox Hotel, but went daily to the house and received her mail there. She resumed occupancy of the house during the summer of 1947. In 1948 she came to Lenox in the spring and had the house opened. She went back to New York City, where she had to remain, unable to return to Lenox because of failing health. Her death occurred at the Mayfair Hotel on November 7, 1948.

A few weeks earlier she gave instructions relative to her funeral to an officer of her Pittsburgh bank who visited her at her New York apartment. She wanted the services to be held at Calvary Church, and none to be held in New York. Nevertheless a short service was held in New York which was attended by nine people. The principal service at the Pittsburgh church was attended by between one hundred fifty and two hundred, mostly friends of hers in that city. She was buried at Pittsburgh with her mother and stepfather.

'During all these years' the decedent made occasional trips to Pittsburgh, averaging two a year. She always stayed at a suite in the Schenley Hotel, but had no lease and did not always occupy the same suite. Her visits, lasting from two days to two weeks, were usually to consult with her lawyers or bankers. All through the years the law firm of her stepfather had continued to do most of her legal work. Her will was drawn and probated in Pittsburgh by that firm. The will was executed by her at their Pittsburgh law office on April 25, 1946. A codicil, dated March 3, 1948, was drawn by a member of that firm, but was executed in New...