Pickering v. Winch

• Citation: 87 P. 763,48 Or. 500
• Parties: PICKERING et al. v. WINCH et al. (State report title: Reed's Will).
• Decision Date: 04 December 1906
• Court: Supreme Court of Oregon

87 P. 763

48 Or. 500

PICKERING et al. v. WINCH et al. (State report title: Reed's Will).

Supreme Court of Oregon

December 4, 1906

Appeal from Circuit Court, Multnomah County; A.L. Frazer, J.B Cleland, and M.C. George, Judges.

Contest by Emily Pickering and others of the will of Amanda W. Reed against Martin Winch, executor and proponent of the will, and T.L. Eliot and others, contestees. From a judgment in favor of contestees, contestants appeal. Affirmed.

This is a contest over the probate in an Oregon court of the will of Amanda W. Reed, who died at Pasadena, Cal., in May, 1904. Mrs. Reed was the widow of S.G. Reed, deceased, and died without children. Her will was executed September 4, 1901, in this state, and recited that she resided at Portland. It disposes of real and personal property of more than $1,250,000 in value, almost all of which is in Oregon. Its probate is contested on the ground, as claimed, that the court of primary jurisdiction is the superior court of Los Angeles county, Cal., in which state the contestants allege that the testatrix was domiciled at the time of her death. Mr. and Mrs. Reed came to Oregon in 1854, and remained here until 1892, during which time they accumulated the fortune now in controversy. Mr. Reed's health failed in 1891, and at the instance and upon the advice of his physician, he went to California to spend the winter, hoping the change would benefit him. His health not improving, he returned to Oregon in the spring of 1892, and then went to Europe to consult a specialist. He returned from Europe in the fall, and shortly thereafter he and his wife went to Pasadena, Cal., where the climate was considered better suited to his health and comfort than that of Oregon. They boarded a while at a hotel and then purchased residence property, and removed their household effects and personal belongings from Portland to Pasadena. Mr. Reed's health growing worse, he died in Pasadena in 1895, and Mrs. Reed brought the body to Portland where it was buried in Riverview Cemetery. During his absence from Portland, Mr. Reed made no material change in his business affairs, retained his residence property and large holdings in lands and city property and his investments and securities in this state, kept his bank account and deposits his office and agent here to attend to his business. He also retained his connection as a director in several Oregon corporations, and his position as a member of the water committee of Portland and his fraternal affiliations. He never voted in California, nor assumed any of the duties and obligations of its citizenship. The taxes on his personal property, except, perhaps, such as he used for his immediate comfort and convenience, were paid in Portland and not in California. Save and except his bare residence in Pasadena Portland was the center of his affairs, and they remained unchanged as to his business connection and civic obligations and duties. Mr. Reed left a will devising and bequeathing all his property, except some real estate in Massachusetts, to his wife, and suggested therein that "feeling as I do a deep interest in the future welfare and prosperity of the city of Portland, Oregon, where I have spent my business life and accumulated the property I possess, I would suggest to my wife that she devote some portion of my estate to benevolent objects or to the cultivation, illustration or development of the fine arts of said city of Portland, or to some other suitable purpose, which shall be of permanent value and contribute to the beauty of the city and to the intelligence, prosperity and happiness of its inhabitants."

On November 18, 1895, Mrs. Reed petitioned the probate court of Multnomah county for administration upon the estate of her husband, reciting and stating in such petition that she was a resident of Portland. She was appointed executrix, and thereafter settled up the estate. She returned to California, and for a time lived in the residence formerly occupied by herself and husband. Some two or three years later she built a dwelling at Carmelita, Pasadena, on property purchased by her husband, and on which he had contemplated building. She continued to reside there until her death, making frequent visits to Portland. She made no change in the management of the business or the property, real or personal, to which she succeeded, except to have her husband's name removed from the office door and hers placed thereon. She retained her church connection in Portland, and made regular contributions for its support and to its charities. She kept her office, agent, bank account, and deposits there, except a small amount from time to time to meet her current expenses. She made no investments in California out of her surplus proceeds, but retained her property interests and business of all kinds in Oregon as had been done by her husband. In numerous and sundry documents executed by her she declared herself to be a resident of Oregon temporarily residing in Pasadena, and in her will, which was several times changed and revised, she invariably made the same declaration of herself. By the terms of her will, after making bequests to divers persons amounting to $230,000 and disposing of several small articles of personal property, she devised and bequeathed the remainder of her property for some 17 different charitable and literary purposes, the recipients of her bounty all being Portland institutions except three, and only one of them was in Pasadena. The bulk of her property was devoted to the founding and maintenance at Portland "of an institution of learning, having for its object the increase and diffusion of practical knowledge among the citizens of said city of Portland, and for the promotion of literature, science, and art," to be known as the "Reed Institute," in memory of her husband. She appointed a resident of Portland executor of her will, and residents of that city trustees to carry out its objects. The court below held that the legal domicile of Mrs. Reed was in Oregon at the time of her death, and her will was entitled to probate here. From this decree the contestants appeal.

James A. Gibson and W.M. Gregory, for appellant.

Joseph Simon, Wm. P. Lord, and Martin L. Pipes, for respondent.

BEAN C.J. (after stating the facts).

This contest arises out of the desire of a number of the heirs of Mrs. Reed to divert and circumvent her manifest intention and desire as to the disposition of her property by availing themselves of the provisions of a statute of California which makes void any devise or bequest for charitable uses in excess of a certain proportionate share of the estate of the deceased. 2 Kerr, Cyc.Code, § 1313. To accomplish this purpose they assert that Mrs. Reed was domiciled in California, and the disposition of her property was subject to its laws. The case, therefore, depends upon the single fact whether Mrs. Reed's domicile at the time of her death was in Oregon or in California. To make out their case, the contestants are bound to establish, either (1) that Mr. Reed changed his domicile, and by virtue of the marital relation, the domicile of Mrs. Reed, from Portland to Pasadena; or (2) that, if his domicile remained at Portland unchanged, Mrs. Reed, after his death, and when she became competent to choose and acquire a new domicile, changed her domicile from Portland to Pasadena. Domicile is difficult of accurate definition and the opinion has been expressed by many judges and writers that the term cannot be successfully defined so as to embrace all its phases.

Mr. Justice Shaw says: "No exact definition can be given of domicile; it depends upon no one fact or combination of circumstances, but from the whole taken together it must be determined in each particular case." Thorndike v. Boston, 1 Metc. (Mass.) 242. Vice Chancellor Kindersley observes: "With respect to these questions of domicile, there is no precise definition of that word, or any formula laid down by the application of which to the facts of the case it is possible at once to say where the domicile may be." Cockrell v. Cockrell, 25 L.J.Ch. (N.S.) 730, 731; Id., 2 Jur. (N.S.) 727. Lord Chancellor Hatherley declined to "add to the many ineffectual attempts to define" the term. Udny v. Udny, L.R. 1 Sc. & Div.App. 441, 449. Mr. Jacobs and Mr. Dicey have both devoted many pages to a discussion of domicile and they each point out the variety of attempts to define it, and how futile have been the efforts. Jacobs, Domicile, § 56 et seq.; Dicey, Conflict of Laws, p. 79.

"Domicile," strictly speaking, is the relation the law creates between an individual and a particular place or country, and each case is dependent upon its own particular facts. It is not in a legal sense synonymous with "residence." A person may have more than one residence and more than one home, in the ordinary acceptance of those terms, but he can have only one domicile, and the law requires that for the purpose of the succession of his property he be domiciled somewhere. The word "home" is undoubtedly the fundamental idea of domicile though calling a place "home" as a matter of fact may not be and often is not entitled to much weight. Jacobs, Domicile, § 72. To constitute domicile there must be both the fact of a fixed habitation or abode in a particular place, and an intention to remain there permanently or indefinitely; or, as Mr. Wharton says: "There must be (1) residence, actual or inchoate; (2) the nonexistence of any intention to make a domicile elsewhere." Wharton, Conflict of Laws, § 21. Domicile, therefore, is made up of residence and intention. Neither, standing alone, is sufficient for the purpose. Residence is not enough, except as it is co-joined with intent, which determines whether its...