Schoof's Estate v. Schoof

• Decision Date: 07 November 1964
• Docket Number: No. 43784,43784
• Parties: The ESTATE OF Ralph T. SCHOOF, Deceased, Appellant, v. Robert Lester SCHOOF, Appellee.
• Court: Kansas Supreme Court

Page 329

396 P.2d 329

193 Kan. 611

The ESTATE OF Ralph T. SCHOOF, Deceased, Appellant, v. Robert Lester SCHOOF, Appellee.

No. 43784.

Supreme Court of Kansas.

Nov. 7, 1964.

Syllabus by the Court

1. Although there may be a distinction between residence and domicile for many legal purposes, the terms are substantial equivalents where jurisdiction of a court is involved.

2. The establishment of residence requires the concurrence of two factors: physical presence in a location and the intention to remain there either permanently or for an indefinite period of time.

3. To effect a change of residence, there must be a transfer of bodily presence to the new location coupled with intention to abide therein either permanently or indefinitely.

4. No stated period of time or length of stay is necessary for the establishment of a new residence. It may be effected on the first day of arrival in the new location, provided the requisite intent to remain permanently or for an indefinite period be present.

5. The record is examined and it is held that the undisputed evidence establishes that the decedent was a nonresident of Kansas, and that the venue for the probate of his will and the administration of his estate properly lies in Norton county, Kansas, wherein he left property at his death.

George P. Nellans, Norton, argues the cause, and was on the briefs for appellant.

William J. Ryan, Norton, was on the briefs for appellee.

FONTRON, Justice.

The matter to be decided in this appela is whether venue for the probation of the will of Ralph T. Schoof and the administration of his estate is in Ford or Norton county. The petition to probate decedent's last will and testament was filed in the Norton county probate court, where written defenses to said petition were interposed by Robert Lester Schoof, a nephew of the decedent, who was bequeathed the sum of One Dollar ($1.00) by his uncle.

After a hearing, the probate court decided that venue was in Norton county and admitted the will to probate. The protesting nephew appealed and the matter was tried anew by the district court which determined the venue to be in Ford county and directed that the files be transmitted to the probate court of Ford county. This appeal by the executor of the Schoof estate is from the latter judgment.

The answer to our question lies in residence. The applicable statute, G.S.1949, 59-2203, provides in pertinent part as follows:

'Venue. Proceedings for the probate of a will or for administration shall be had in the county of the residence of the decedent at the time of his death; if the decedent was not a resident of this state, proceedings may be had in any county wherein he left any estate to be administered. * * *'

It is the executor's contention that the decedent, on the date of his death, was a nonresident of Kansas with property in Norton county, while Robert, the dissident kinsman, maintains that his uncle resided in Ford county. The latter's claim was credited by the district court which found that at the time of his death, Ralph T. Schoof was a resident of Ford county. The appellee, nephew Robert, states in his brief that the sole question to be determined in this appeal is whether there is substantial competent evidence to support the district court's finding, and in this we believe him correct.

The evidence, which includes certain stipulated facts, is undisputed. In about December, 1961, the decedent (sometimes called Schoof herein) who then resided in Ford county, entered the State Sanatorium for Tuberculosis patients at Norton. Here on December 7, 1962, his will was executed and in it Schoof was described as a resident of Ford county. On December 21, 1962, Schoof and a fellow patient, Elmer Van Ness, took French leave from the sanatorium and traveled, in decedent's car, to the great southwest, there to spend their last days. This journey, according to Van Ness, was 'the end of Kansas.' The first stop in the enchanted lands of sun and sand was made at Yuma, Arizona, where the two men stayed ten or twelve days and Schoof bought a trailer house. From Yuma they moved on to Winterhaven in the California desert, where they lived in Schoof's trailer. While at Winterhaven, Schoof registered his car and obtained California license plates for it and his trailer house, giving Winterhaven as his address, and Van Ness applied for a California driver's license. Schoof's mailing address for social security and railroad retirement checks was changed first to Yuma and then to Winterhaven and Westminister, California.

Although urged by friends to return to the sanatorium, Schoof refused because of personal feelings toward certain hospital personnel, and he refused to go back to Dodge City because he felt that his sister-in-law and friends 'had not done him right.' Van Ness testified that he and Schoof established their residence in California and that both of them considered that state as their residence while they were there. This was corroborated by Marybelle Rowley, a friend of the decedent, who testified that Schoof had told her over the 'phone that he had taken up residence in California. Sometime in February, Schoof and Van Ness visited the latter's mother in Oklahoma City and here Schoof passed away on March 26, 1963. At the time of Schoof's death, Van Ness was in Arkansas looking for a small place which the two might buy and move into.

Before leaving the sanatorium, Schoof had given his lawyer, Nellans, a number of bonds for safekeeping, and most of these remained in Norton county at Schoof's death. The decedent's car was turned over to Nellans subsequent to decedent's death and it also was within Norton county when proceedings were there commenced to probate his estate.

At Yuma, Schoof had executed a Power of Attorney dated January 14, 1963, appointing Nellans to sell his Dodge City real estate. In this document, Schoof was described as 'a resident of Norton and Ford Counties in the State of Kansas, and most recently a resident of Norton, Norton County, Kansas.' In a letter of transmittal, Schoof wrote that he would inform Nellans of his permanent address in a few days. Although the record does not clearly disclose whether the Dodge City real estate was sold, Van Ness testified he was quite sure that it had been, and we were advised to such effect by appellant's counsel on oral argument.

Turning to the legal points involved, we first note that for purposes of statutory construction, G.S.1949, 77-201, Twenty-third, defines residence as follows:

'The term 'residence' shall be construed to mean the place adopted by a person as his place of habitation, and to...