Pettit's Extrx. v. City of Lexington
| Citation | 193 Ky. 679 |
| Parties | Pettit's Executrix v. City of Lexington, et al. |
| Decision Date | 10 February 1922 |
| Court | Court of Appeals of Kentucky |
Appeal from Fayette Circuit Court.
HUNT, NORTHCUTT & BUSH and FALCONER & FALCONER for appellant.
FORMAN & FORMAN and D. C. HUNTER for appellees.
This is an appeal from a judgment of the Fayette circuit court assessing personal property for city taxes against William Pettit, for the years 1911, 1912, 1913 and 1914, and assessing similar property for city taxes against Annie V. Pettit, executrix of William Pettit, for the years 1915 and 1916. A cross appeal is prosecuted from the order entered in that court, dismissing the petition as to "other notes" alleged to have belonged to William Pettit and sought to be assessed for taxes for the years 1911 and 1912. There is also a motion to be allowed a cross appeal from the order dismissing so much of the petition as sought to assess personal property against William Pettit for city taxes, for the years 1908, 1909 and 1910. This motion is opposed by appellant.
The pleadings and motions relating to this controversy are voluminous. Reference to their contents is unnecessary for the reason that on the original appeal there is involved the single question of whether William Pettit was legally domiciled in Lexington on the assessing dates for the taxing years of 1911 to 1914 inclusive; in addition to which there is to be determined the place of his legal residence at the time of his death, which is decisive of whether his executrix, Annie V. Pettit, is liable for taxes for the years 1915 and 1916, inasmuch as it is conceded that if he was legally domiciled in Lexington at his death, occurring July 22, 1914, his property for the years 1915 and 1916 is subject to assessment for city taxes as against his executrix.
Counsel for the parties on this appeal have elaborately discussed the authorities considered applicable to the question of legal residence. Boyd's Exor. v. Commonwealth, 149 Ky. 764; Graves' Admr. v. City of Georgetown, 154 Ky. 207; City of Winchester v. VanMeter, 158 Ky. 31; Saunders v. City of Flemingsburg, 163 Ky. 680; Hurst v. City of Flemingsburg, 172 Ky. 127; City of Covington v. Shinkle, 175 Ky. 530; Millett's Exor. v. Commonwealth, 184 Ky. 193, and many other earlier decisions are cited as applying to the questions of fact to be determined here, which are whether or not William Pettit was, on the assessing dates for the years in question and at the time of his death, legally domiciled in Lexington, Kentucky.
The principle announced in all of these cases is the same, and whatever discrepancies may seem to exist, arise, not because of a departure from the principle of law, but, on account of the different facts to which it is applied. It is apparent, therefore, that a comparative analysis of the cases relied on could offer no controlling analogy. Undoubtedly, there is a broad distinction between a legal residence and an actual residence, and it is equally well settled that the motives for establishing and maintaining the former are not subject to inquiry in a proceeding of this kind, as the location is fixed without regard to the motives inducing the selection. The question of legal residence is one of fact and intention. The foundational fact of residence conjoined with the intention fixes the legal residence. But the fact is more powerful than the intention, for intention may be inferred from the fact alone, whereas the fact cannot be shown by or inferred from intention. The residence need not be continuous or for the greater part of the time, but there must be an abiding place joined with an intention of constituting a legal residence before it can be fixed as such. It is also true that every person must have such a residence, and that he can have but one, and that when once established it continues until he renounces it and acquires another.
A discursive examination of the evidence here would not elucidate the conclusions reached. Briefly stated the record shows that William Pettit, who had previously been married and was without living children, was married to Annette VanMeter, his surviving wife, in 1895. In March of 1896 he purchased and caused to be conveyed to his wife a two story brick residence referred to in the record as 801 East Main street.
In 1897 Mr. Pettit purchased a farm on the Richmond pike, known as the Tod Hunter place, but he and his family continued to reside at 801 East Main street. In the summer of 1906 the limits of the city of Lexington were extended to include the place where he resided, and that autumn he purchased and moved to a cottage on a small farm outside the city limits. In January, 1907, he returned to 801 East Main street, where he and his family resided the major part of the remainder of his life. Mrs. Pettit says that it was not their intention to make the cottage to which they moved in 1906 their permanent residence. The question then is whether the legal residence of William Pettit was at 801 East Main street or, as appellant's evidence tended to show, at the Tod Hunter place.
The Tod Hunter farm was acquired some time after the purchase of the Main street property, and it appears that Mr. Pettit purchased other property adjoining the Main street property; that he and his family spent the greater part of each year in that property; that he maintained his valuable household furniture there; that the family were members of and attended churches at Lexington; that he had a garden at 801 East Main street and cultivated it; that his children were born there; he kept his carriage and automobile at that place; there was a cottage on the place for servants; and that Mrs. Pettit has lived there almost continuously since her husband's death.
On the other hand, it is shown in the evidence that in leasing the Tod Hunter place about March 1, 1907, Pettit reserved a part of the farm and two rooms in the brick residence on it, and that subsequent leases contained similar reservations in the house. The rooms were rather scantily furnished but it is shown that he spent part of every summer thereafter at the place, and that usually his family or some of them accompanied him; that he generally, if not always, took his meals while there with the man occupying the residence, and while he rented the farm for some of those years at other times he had an interest in the crops. It is also shown that he never registered as a voter in Lexington; that he frequently stated that he resided in the county; and that he paid $25.00 a year for part of the time as tuition to the city of Lexington for his sons who attended the city schools. While he never registered as a voter in Lexington, there was some testimony tending to show that he voted in a school election. On this point, however, there is conflict as to the time, it being stated by one witness that the election was held previously to the extension of the city limits in 1906. There was also testimony to the effect that after 1907 he voted on one or two occasions in the country, in the precinct in which the Tod Hunter place was located.
Copies of deeds and other documents were placed in evidence, in some of which Mr. Pettit referred to himself as a resident of Fayette county and in others he was referred to as a resident of Lexington.
The location of one's legal residence is, as we have seen, a question of fact and intention, and the fact as exhibited and the intention as inferred...
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