Phillips' Estate, In re

• Decision Date: 14 February 1969
• Citation: 269 Cal.App.2d 656,75 Cal.Rptr. 301
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Charles P. PHILLIPS, also known as Charles Phillips, Deceased. COUNTY BANK OF SANTA CRUZ, as Executor of the Will of Charles P. Phillips, Petitioner and Respondent, v. Laura VERVERS, Individually and as Conservator of the Person and Estate of Charles P. Phillips and as Administratrix of said Estate by Appointment of the Circuit Court of Cook County, Illinois, Objector and Appellant. Civ. 25064.

Page 301

75 Cal.Rptr. 301

269 Cal.App.2d 656

In re ESTATE of Charles P. PHILLIPS, also known as Charles Phillips, Deceased.

COUNTY BANK OF SANTA CRUZ, as Executor of the Will of Charles P. Phillips, Petitioner and Respondent, v. Laura VERVERS, Individually and as Conservator of the Person and Estate of Charles P. Phillips and as Administratrix of said Estate by Appointment of the Circuit Court of Cook County, Illinois, Objector and Appellant.

Civ. 25064.

Court of Appeal, First District, Division 1, California.

Feb. 14, 1969.

Adams & Levin, Santa Cruz, for appellant.

Robert G. Fife, Aptos, Lucas, Wyckoff, Miller, Stanley & Scott, Thomas L. Prosser, Santa Cruz, for respondent.

MOLINARI, Presiding Justice.

This is an appeal from an order admitting decedent's will to probate, overruling objections and granting letters testamentary. Appellant is a niece of decedent and the conservator of his person and estate by appointment of the Circuit Court of Cook County, Illinois. Respondent is executor of the will of decedent admitted to probate in this proceeding. The primary question on appeal is whether or not decedent, who had been adjudicated an incompetent in Illinois, had the legal capacity to voluntarily change his residence from Illinois to Santa Cruz, California. ¹

Charles P. Phillips, the decedent, was adjudicated an incompetent in the Circuit Court of Cook County, Illinois on June 19, 1964, and appellant, Laura Ververs, was appointed conservator of his estate and his person at that time. The action of the Illinois court was taken as the result of a petition filed by appellant in which she alleged that decedent was 'incompetent and incapable of managing his estate (and person, in that (sic) is mentally deficient, physically incapacitated and mentally deteriorated and in addition is 74 years of age and has attempted on various occasions (sic) to take his own life.'

In November 1965 decedent visited his brother John in Aptos, California, and during his one-month stay he mentioned that he thought he would like to come and live in California. The two brothers then investigated available retirement accommodations in Santa Cruz. Decedent returned to Illinois without having reached a decision concerning his residence; but in May 1966 he contacted his brother John and requested that he find accommodations in Santa Cruz and subsequently appropriate arrangements were made with a retirement hotel. After disposing of an automobile in Illinois and giving up his apartment in that state, decedent arrived in California on May 16, 1966, bringing with him his clothes and other personal effects. Shortly after his arrival in California, decedent opened a bank account in a Santa Cruz bank, making an initial deposit of $1,001.47. On several occasions decedent informed his brother John that he liked California and expected to stay here for the remainder of his life. He also told his attorney that he considered himself a resident of California and that he would prefer not to return to Illinois for any purpose. The brother, as well as both the physician and attorney consulted by decedent, found him to be alert and well oriented at all times.

On March 24, 1967, decedent executed a formal will which included a statement that although he was at one time a resident of Illinois 'I have now changed my domicile and residence to the State of California.' ² The terms of the will specifically revoked a will made in July 1964 and named the respondent bank as executor. On April 12, 1967, decedent died in a Santa Cruz hospital at the age of 76 and thereafter on April 17, 1967, respondent offered the 1967 will for probate in the Superior Court of Santa Cruz, County. Through her attorneys appellant appeared specially on May 5, 1967, and filed objections to the petition for probate of the wil. In her objections appellant claimed that the court had no jurisdiction because decedent left no property in the County of Santa Cruz and was not at any time a resident of that county. Appellant contended that decedent as an incompetent did not have the capacity to change his place of residence and additionally stated that the July 1964 will naming appellant as executrix had been filed for probate in Illinois. In her affidavit in support of the objections, appellant stated that decedent's trip to California in 1966 was for a temporary visit for therapeutic purposes because decedent was in an extremely depressed mental state; and that it was the intent of appellant that decedent would return to Illinois whenever his mental and physical condition had sufficiently improved.

The superior court overruled the objections of appellant and found that decedent was in fact a resident of the County of Santa Cruz, State of California and admitted the will dated March 24, 1967 to probate and appointed respondent as executor.

Appellant argues that because decedent had been previously adjudicated an incompetent, he did not have the legal capacity to change his residence from Illinois to Santa Cruz County, California, and that consequently the court did not have jurisdiction to admit the will to probate. No California cases have been found which decide this precise question which is apparently a matter of first impression. The pertinent California statute governing jurisdiction is Probate Code section 301 which provides in part: 'Wills must be proved, and letters testamentary or of administration granted and administration of estates of decedents had, in the superior court: (1) Of the county of which the decedent was a resident at the time of his death * * *.' ³ Initially, we note that the word resident as used in this section connotes a 'residence' which is synonymous with 'domicile.' (Smith v. Smith, 45 Cal.2d 235, 239, 288 P.2d 497; In re Estate of Glassford, 114 Cal.App.2d 181, 186, 249 P.2d 908, 34 A.L.R.2d 1259; In re Estate of Brace, 180 Cal.App.2d 797, 802, 4 Cal.Rptr. 683.) Next we observe the well-established rules that 'The acquisition of a new domicile is generally understood to require an actual change of residence accompanied by the intention to remain either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode' (DeYoung v. DeYoung, 27 Cal.2d 521, 524, 165 P.2d 457, 458; In re Estate of Glassford, 114 Cal.App.2d, supra, at p. 186, 249 P.2d 908); and that in determining the fact of such intention, the acts and declarations of the party must be taken into consideration. (Guardianship of Mosier, 246 Cal.App.2d 164, 172, 54 Cal.Rptr. 447; Whitlow v. Durst, 20 Cal.2d 523, 524, 127 P.2d 530.) Further, we note that 'The question of residence or domicile is a mixed question of law and fact, and the determination of the trial court, upon conflicting evidence, is conclusive upon this court. (Citations.)' (In re Estate of Peters, 124 Cal.App. 75, 77, 12 P.2d 118, 119; Bradley v. Davis, 156 Cal. 267, 268, 104 P. 302.) In the instant case, there was ample evidence before the trial court that decedent intended to make Santa Cruz County his domicile, but appellant does not actually question this intent of decedent. Since appellant contends only that decedent had no capacity to change his domicile, she completely disregards the question of intent in her argument. ⁴

Adverting, then, to the crucial question presented, we note that there is a diversity of authority in this country as to whether a person who has been previously adjudicated to be incompetent has the capacity to change domicile. ⁵ The majority view appears to be that reflected in the principle which is stated in section 40 of the Restatement of the Law, Conflict of Laws, as follows: 'A person who is mentally deficient or of unsound mind can acquire a domicile as if he had normal mental capacity if he is able to choose a home.' ⁶ In comment a. to this section it is stated that 'It is in every case a question of fact whether a person who is mentally deficient or of unsound mind is able to choose a home'; and in comment g. the effect of the appointment of a guardian is discussed thusly: 'If a person of unsound mind becomes sane or becomes able to choose a home, he may if he is of full age, thereafter acquire a domicil of choice notwithstanding the fact that a guardian of his person has been appointed.' ⁷

In Goodrich, Conflict of Laws (4th ed. Scoles), at page 60, this eminent authority on Conflict of Laws states: 'It has been recognized that, while a person may not be capable of doing some acts, as making a contract, yet he may have a sufficient degree of understanding to change his domicile. There is reason in the distinction. In making a contract, the obligor must exercise capacity to assume a burden, * * * making himself liable. In changing domicile, the actor merely subjects himself to the operation of the legal system of the new jurisdiction--a system that must be presumed to guard rights and privileges and to operate equally upon all. The test is said to be whether the party had sufficient reason and understanding to choose his place of residence. He may do so even though a guardian has been appointed for him.' (See also Hsu v. Mt. Zion Hospital, 259 A.C.A. 583, 595, at fn. 5, 66 Cal.Rptr. 659.)

The rule espoused in the Restatement has been followed in Arizona (In re Sherrill's Estate, 92 Ariz. 39, 43, 373 P.2d 353, 356); Florida (Matthews v. Matthews, 141 So.2d 799, 801--802, 96 A.L.R.2d 1231; see also McNeill v. Harlow, 81 Fla. 401, 88 So. 127); Indiana (Hayward v. Hayward, 65 Ind.App. 440, 450, 115 N.E. 966, 969, 116 N.E. 746); Massachusetts (Talbot v. Chamberlain, 149 Mass. 57, 59, 20 N.E. 305, 306--307, 3 L.R.A. 254); Oklahoma (Groseclose v. Rice, 366 P.2d 465, 468); Texas (Ferguson v. Ferguson, Tex.Civ.App., 128 S.W. 632); Vermont (In re Hanrahan's Will, 109 Vt. 108, 127, 194 A. 471, 480--481), and in the federal courts (Coppedge v. Clinton, 10 Cir., 72 F.2d 531, 533; Foster v. Carlin, 4 Cir., 200 F.2d 943, 946. ⁸ ) Only cases...