Shenton v. Abbott

• Decision Date: 31 October 1940
• Docket Number: 17.
• Citation: 15 A.2d 906,178 Md. 526
• Parties: SHENTON v. Abbott
• Court: Maryland Court of Appeals

15 A.2d 906

178 Md. 526

SHENTON v. Abbott

No. 17.

Court of Appeals of Maryland

October 31, 1940

Appeal from Orphans' Court of Baltimore City; Philip L. Sykes Leo J. Cummings, and Samuel Lasch, Judges.

Proceeding by S. Reese Abbott to revoke probate of will of James Edward Abott, deceased, and the letters testamentary of Harry W Shenton, executor of James Edward Abbott, deceased. From an order revoking the probate of the will and the letters testamentary, Harry W. Shenton, executor of James Edward Abbott, deceased, appeals.

Affirmed.

William D. Macmillan, of Baltimore (William J. McWilliams, of Annapolis, and William A. Fisher, Jr., and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellant.

George B. Woelfel, of Annapolis, for appellee.

Argued before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

DELAPLAINE Judge.

This appeal is from an order of the Orphans' Court of Baltimore City revoking the probate of the will of James Edward Abbott, deceased, and also the letters testamentary of Harry W. Shenton, appellant, on the ground of lack of jurisdiction. The issue is whether the testator had abandoned his domicil of origin in Anne Arundel County and acquired domicil of choice in Baltimore City.

The record shows that the testator was born in Annapolis. He became a colonel in the United States Army, but after he retired from the service he returned to his home in Annapolis. For eleven years he served by appointment of Governor Ritchie as a member of the Maryland Veterans' Commission; and when he was personally in charge of its office in Baltimore from 1932 to the middle of 1935, he was there 'practically every day, passing on applications for relief.' In 1934, then at the age of 68, he gave up his apartment in Annapolis, and took a furnished apartment in the Latrobe Apartments in Baltimore under a lease for the year 1935. For about a month of that year he was a patient in the Fort Howard Hospital. He later gave up his business office in Annapolis. Among the places where he stayed from 1936 to 1939 were the Latrobe, the Army and Navy Hospital at Hot Springs, Arkansas, the Naval Hospital in Annapolis, Walter Reed Hospital in Washington, the University Club of Baltimore, the Johns Hopkins Hospital, a boarding house in Annapolis, a brother's home on the Severn River a sister's home in Washington, the Army and Navy Club in Annapolis, a summer resort on the Eastern Shore, the Hopkins Apartments in Baltimore, the Jefferson Apartments in Baltimore, the Army and Navy Club in Washington, and the Washington Sanitarium.

On July 22, 1939, while a patient at the Washington Sanitarium, Colonel Abbott disclosed to the appellant his plans for matrimony and outlined the provisions for his will. On the following day he returned to Baltimore and lodged in the Hotel Rennert. On July 26 he was married in a room of the hotel. On July 27 he executed his will, calling himself 'James Edward Abbott, of the State of Maryland.' The couple stayed at the Rennert until October, when they left for Florida. On December 3, after being away from Anne Arundel County for about five years except on visits, Colonel Abbott died in Florida, and was buried in Arlington National Cemetery.

According to the requirement of the Maryland statute, whenever any person shall die intestate, leaving personal property in this State, letters of administration shall be granted in the county where he had his 'mansion house or residence.' Code, art. 93, sec. 15. The statute also provides that any will may be proved in any county wherein letters testamentary or of administration may be granted. Code, art. 93, sec. 356. In the present case the Register of Wills for Baltimore City took the probate of the will and granted the letters in the recess of the Orphans' Court. Code, art. 93, sec. 353. The word 'residence' in the testamentary statute denotes more than a place of abode; we interpret it to mean the domicil of the deceased. Whiting v. Shipley, 127 Md. 113, 96 A. 285; Pattison v. Firor, 146 Md. 243, 126 A. 109. A person's domicil is the place with which he has a settled connection for legal purposes, either because his home is there or because that place is assigned to him by the law. It is well defined as that place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning. While a person may have several residences, he can have only one domicil at a time. Croop v. Walton, 199 Ind. 262, 157 N.E. 275, 53 A.L.R. 1386, 1391; Restatement of Conflict of Laws, §§ 9, 11. This Court holds that the Orphans' Court of one county has no authority to probate the will of a testator who had his domicil in another county. Shultz v. Houck, 29 Md. 24, 27; Brafman v. Brafman, 144 Md. 413, 415, 125 A. 161.

It is a fundamental rule that in order to effect a change of domicil there must be an actual removal to another habitation, coupled with an intention of remaining there permanently or at least for an unlimited time. But a change of residence to enable a person to perform the duties of a civil office, whether elective or appointive, does not of itself constitute a change of domicil. No temporary residence, whether for the purposes of business, health or pleasure, occasions a change of domicil. Even though a person may be absent from his domicil for many years and may return only at long intervals, nevertheless he retains his domicil if he does not acquire a domicil elsewhere. Wagner v. Scurlock, 166 Md. 284, 170 A. 539; Mitchell v. United States, 21 Wall. 350, 22 L.Ed. 584, 588; 1 Beale, Conflict of Laws, 142, 163, 167, 171; 17 Am.Jur., Domicil, §§ 16, 18. In an opinion in the United States Supreme Court Justice Holmes declared: 'The essential fact that raises a change of abode to a change of domicil is the absence of any intention to live elsewhere. * * * The very meaning of domicil is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.' Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 443, 58 L.Ed. 758.

Colonel Abbott, according to the records of the Supervisors of Elections, was a qualified voter in Anne Arundel County until the time of his death, and voted there in the primary and the general election of 1938. The official records of Supervisors of Elections showing where a person registered or voted are admissible in evidence on the question of his place of domicil. Wagner v. Scurlock, 166 Md. 284, 170 A 539; Town of Enfield v. Town of Ellington, 67 Conn. 459, 34 A. 818. The Constitution of Maryland prescribes that a qualified voter shall be entitled to vote at elections held in this State 'in the ward or election district in which he resides.' Md.Const. art. 1, sec. 1. The object of the framers of the Constitution in prescribing residence as a qualification for the exercise of the elective franchise was not only to identify the voters and to prevent fraud but also to assure that each voter would become in fact a member of his community and take an interest in its government. Shaeffer v. Gilbert, 73 Md. 66, 70, 20 A. 434. The legislature has added strength to such evidence by enacting a statute providing for the imprisonment of any person who shall vote in any election precinct without having a legal right to vote therein. Code, art. 33, sec. 134; 17 Am.Jur., Domicil, § 93. While evidence of the exercise of the right of suffrage in a certain place is not conclusive, as a general rule, in determining the question of domicil, and may sometimes be of slight importance when overbalanced by other circumstances, such evidence should ordinarily have considerable weight because it is very strong evidence of intention. Wagner v. Scurlock, 166 Md. 284, 170...