Pattison v. Firor

• Decision Date: 21 June 1924
• Docket Number: 45.
• Citation: 126 A. 109,146 Md. 243
• Parties: PATTISON v. FIROR.
• Court: Maryland Court of Appeals

126 A. 109

146 Md. 243

PATTISON v. FIROR.

No. 45.

Court of Appeals of Maryland

June 21, 1924

Appeal from Orphans' Court of Baltimore City.

"To be officially reported."

Petition by Thomas F. Pattison to prevent granting letters testamentary or of administration on the estate of Maria F Pattison, deceased, opposed by Howard O. Firor, executor. From an order dismissing the petition, plaintiff appeals. Motion to dismiss appeal overruled, and order affirmed.

Argued before PATTISON, URNER, ADKINS, OFFUTT, and BOND, JJ.

W Conwell Smith, of Baltimore, and Joseph L. Donovan, of Ellicott City, for appellant.

George E. Robinson, of Baltimore, for appellee.

OFFUTT J.

This appeal is from an order of the orphans' court of Baltimore city, dismissing a petition filed by the appellant in that court in which he asked that no letters testamentary or of administration on the estate of Maria F. Pattison be granted in that court, for the reason that the decedent at the time of her death was a resident of Howard county, Md. The order appealed from was passed after testimony had been taken and after a hearing had been had on the issue of the decedent's residence, and the only question presented by the appeal is whether the lower court was justified by the evidence in the case in deciding that she was a resident of Baltimore city. Many of the facts relating to that issue are uncontradicted, while the evidence as to others is vague and confused rather than contradictory.

The facts as shown by a fair valuation of the evidence are that Mrs. Pattison lived most of a long life with her husband on a farm at Guilford, in Howard county, and that after his death which occurred in 1915, she continued to live there for at least a year and a half, and perhaps as long as three or four years. At some time between 1917 and 1920 she sold the furniture she had in the dwelling house on the farm and moved out of that house, never to return. After that the house was rented to various tenants, and at the time the decedent died was occupied by a colored family. On leaving the farmhouse, Mrs. Pattison went for a time to visit her daughter, Mrs. Dixon, who lived in Baltimore, and she then went to another daughter, Mrs. Thompson, who lived in Towson, and stayed there for a while, and from there she returned for a time to Mrs. Dixon, and finally she went to the home of her son-in-law, Howard O. Firor, and she continued to live there with her daughter and her son-in-law, except for occasional visits, of varying duration, to her other children until her death, and during that period, except for one year prior to 1920, Mr. Firor resided in Baltimore. She had a room in Mrs. Firor's home, such personal belongings as she had she kept there, she received her mail there, she spoke of it as her home to her daughter Mrs. Thompson, and her granddaughter Mrs. Munson, and in the paper offered as her last will and testament she described herself as "of Baltimore."

In 1920 she registered and voted at the election held in that year in Howard county. At the same time her son-in-law, with whom she lived, and her daughter, also voted there. Firor at that time was also legally a resident of Howard county, and rented from Mrs. Pattison the farm on which she had lived. Later he had his registration transferred to Baltimore city, but Mrs. Pattison, after voting in 1920, apparently took no further interest in elections of any kind, and neither voted nor took any steps to change her registration. Her interest in the election of 1920, it may be inferred from the testimony, was due to her admiration for Mr. James L. Hobbs, a candidate at that election for the office of sheriff of Howard county. Shortly after she first went to live with Mr. Firor, he removed to Washington, D. C., in 1918, and she spent that autumn and the following winter with him there. When he left Washington, he moved to a bungalow which he had built on the farm in Howard county, in which she had a life estate, and she lived there in the summer of 1919, and in the fall of 1920 she went to live with him at his home, No. 3508 Liberty Heights avenue, in Baltimore, and remained there, except for visits during the summer months to her other children, until her death. On these visits, one of which was to her son, the appellant in this case, she would stay for varying periods, but only during the summer months.

This is in substance the testimony upon which the orphans' court acted in deciding that at the time of her death Mrs. Pattison was a resident of Baltimore city, and, while the question may not be altogether free from doubt, nevertheless we feel that the evidence was sufficient to justify that conclusion. As said in Harrison v. Harrison, 117 Md. 613, 84 A. 58:

"For a valid change of domicile there are two requisites, namely, an act and an intent," and "the presumption of the law is that where a person actually lives is his domicile, though this is a rebuttable presumption."

Section 14, art. 93, C. P. G. L. of Md., provides:

"Whenever any person shall die intestate, leaving in this state personal estate, letters of administration may forthwith be granted by the orphans' court of the county wherein was the party's mansion house or residence; or in case he had no mansion or residence within the state, letters shall be granted in the county where the party died; and in case the party neither had mansion or residence nor died within this state, letters may be granted in the county wherein lies or is supposed to lie a considerable part of the party's personal estate. Nevertheless, whenever any person shall die, leaving in this state property subject to administration, the said letters of administration shall be granted in the county wherein was the mansion house or residence of the deceased; provided, he had such property lying in said county."

And in Brafman v. Brafman, 144 Md. 414, 125 A. 161, this court, in construing the word "residence" as used in that section, speaking through Judge Pattison, said:

"The word 'residence,' as here used, means the fixed or permanent home or domicile of the deceased, as distinguished from a temporary abode. Whiting v. Shipley, 127 Md. 117, 96 A. 285. A domicile, as said by the Supreme Court in Mitchell v. United States, 21 Wall. 352, 22 L.Ed. 584, is 'a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.' And this court said, in Thomas v. Warner, 83 Md. 20, 34 A. 831: 'The idea of residence is compounded

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