Slater v. Munroe

• Decision Date: 01 April 1943
• Citation: 48 N.E.2d 149,313 Mass. 538
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOHN S. SLATER & another v. GRACE J. MUNROE & others.

313 Mass. 538

48 N.E.2d 149

JOHN S. SLATER & another v. GRACE J. MUNROE & others.

Supreme Judicial Court of Massachusetts, Barnstable.

April 1, 1943

November 13, 1942.

Present: FIELD, C.

J., DONAHUE, QUA & RONAN, JJ.

Domicil.

The acquisition of a new domicil is established by proof of residence there with the intent of remaining for an indefinite period and without any fixed or definite purpose to return to a former home.

Upon the evidence in a voluminous record a finding was not plainly wrong of domicil in Harwich in this Commonwealth at the time of her death of a widow, who formerly had been domiciled with her husband in the State of Illinois and after his death and until she died ten years later generally had resided in the summers at a summer hotel in

Harwich which had been closely associated with her family history and before her marriage had been her home and of which she was a coowner, although she resided at other places in other seasons.

PETITION, filed in the Probate Court for the county of Barnstable on October 29 1941, for proof of the will of Susan J. Ulm.

Proceedings in the Probate Court before Campbell, J., are described in the opinion. The record before this court comprised nine hundred sixty-six printed pages.

F. H. Stewart, (J.

B. Ford with him,) for the respondents.

E. O. Proctor, (C.

M. Goldman with him,) for the petitioners.

RONAN, J. This is an appeal from a decree of the Probate Court for the county of Barnstable adjudging, after a hearing, that Susan J. Ulm deceased, was domiciled in Harwich in said county, and denying a motion to dismiss a petition for the probate of an instrument purporting to be the will of the said decedent. The motion to dismiss challenged the jurisdiction of the Probate Court on the ground that Mrs. Ulm at the time of her death was domiciled in Chicago.

The Probate Court for the county of Barnstable had the power to hear and decide the petition if the decedent was at the time of her death domiciled in that county. G. L. (Ter. Ed.) c. 215, Section 3. Harvard College v. Gore, 5 Pick. 370. Hutchins v Browne, 253 Mass. 55 . Connolly v. Phipps, 283 Mass. 584 . Kennedy v. Simmons, 308 Mass. 431 . The decree denying the motion to dismiss did no more than settle one of the issues presented by the petition and raised specially by the motion. It did not finally dispose of the petition, which stood in that court for further proceedings on a motion for jury issues or for a trial upon the merits excepting only the question of domicil. The decree was interlocutory in nature and was not a final decree. Forbes v. Tuckerman, 115 Mass. 115 , 119. Emery v. Emery, 218 Mass. 227. McCracken's Case, 251 Mass. 347 . Malden Trust Co. v. Brooks, 276 Mass. 464 . Cummings v. Tolman, 292 Mass. 58 , 60.

Appeals from the Probate Courts conform to the practice in equity in so far as that is practicable and applicable. School Committee of Winchendon v. Selectmen of Winchendon, 300 Mass. 266 . Wiley v. Fuller, 310 Mass. 597 . The general practice in equity is that an appeal from an interlocutory decree, in the absence of a report by the trial judge, should not be entered in this court until after a final decree in the trial court. Barnes v. Barnes, 291 Mass. 383 . Leffler v. Todd, 308 Mass. 243 . Orth v. Paramount Pictures, Inc. 311 Mass. 580 . Since considerable expense has been incurred in the printing of a voluminous record and as the case has been fully argued by the parties, who desire a decision upon the merits, and since an examination of the testimony contained in the transcript of evidence indicates the conclusion which ought to be reached, we deem it appropriate, but without intending to establish a precedent, to express an opinion upon the question presented. See Atlantic Maritime Co. v. Gloucester, 228 Mass. 519; Commonwealth v. McNary, 246 Mass. 46; Moore v. Election Commissioners of Cambridge, 309 Mass. 303 . The judge did not make a report of the material facts. We have, however, a full report of the evidence. The entry of the decree implies a finding of every fact, permissible on the evidence, necessary to support the conclusion of the trial judge. Glazier v. Everett, 224 Mass. 184 . Berry v. Kyes, 304 Mass. 56 . Marshall v. Landau, 308 Mass. 239. The question now presented for decision is whether the finding appearing in the decree, that the decedent was domiciled in Harwich, was plainly wrong. Tuells v. Flint, 283 Mass. 106 . Kennedy v. Simmons, 308 Mass. 431.

Mrs. Ulm, hereafter called the decedent, lived in this Commonwealth up to the time of her marriage to John W. Ulm of Chicago, in 1913. She had previously, for nearly a score of years, assisted her father in conducting a large summer hotel known as the Hotel Belmont, hereafter called the Belmont, and located in Harwich in this Commonwealth. It was admitted during the hearing "that she was fond of the Belmont and had lived there more or less practically all her life. She loved Cape Cod and she loved Harwich and loved the Belmont." Upon her marriage she resided with her husband in Chicago, living in furnished hotel suites. He owned considerable real estate in Chicago and in the States of Indiana and California. They spent each summer, except two, during their married life at the Belmont, and travelled considerably during the winter. He died on January 27, 1931. It is undisputed that her domicil was then in Chicago. She left Chicago for Boston on April 1, 1931. It is undisputed that her domicil was then in Chicago. She left Chicago for Boston on April 1, 1931. Her sister, Mrs. Munroe, lived at a Boston hotel, and the decedent stayed at the hotel from April, 1931, to June 10, 1931, except for a ten-day trip to Bermuda, and on the last mentioned date she went to the Belmont where she remained until October 10, 1931. She then returned to this Boston hotel, where she leased an unfurnished suite which she furnished and occupied until April 1, 1933. During this period she and her nurse spent the summer at the Belmont, and in the winter of 1932 they made a trip to California, staying in Chicago a day or two en route each way. The decedent had another sister, Mrs. Frost, who lived at another Boston hotel and on April 1, 1933, the decedent moved to this hotel, where she lived until June, 1935. During this period she spent the summers of 1933 and 1934 at the Belmont and made a trip to California. From May 23 to June 6, 1934, and from June 4 to June 11, 1935, she was in Chicago. On her return from the Belmont in October, 1935, she leased an apartment in Brookline, where she resided until April 9, 1936. She gave up this apartment, put her furniture in storage and visited a friend in Milton until May 2, 1936, when she left for Chicago, where she stayed until June 29, 1936. She then left for a two and one half months tourist cruise to Europe. She then again visited her friend in Milton, where she stayed until December 1, 1936, when she went to California. On her way she stayed in Chicago until February 5, 1937, and on her way back she stayed in Chicago from May 1, 1937, to June 18, 1937. She came to the Belmont in June, 1937, where she lived until October, 1937. She occupied a furnished room at a Boston hotel until December 10, 1937, when she left for Chicago, where she occupied a suite in a hotel until June 20, 1938. She was again at the Belmont during the summer of 1938. From October, 1938, to February 1, 1939, she was at a Boston hotel. She spent four days in February, 1939, in a Chicago hotel. She returned to a Boston hotel, where she stayed until she went to the Belmont in June, 1939. She returned to the Boston hotel in October, 1939, and on February 7, 1940, she went to Chicago on a visit which lasted until February 24, 1940. She returned to the Boston hotel, where she stayed until she went to the Belmont in June, 1940. In October, 1940, she returned to Boston, staying in a hotel there until February 6, 1941, when she left for Chicago, returning on April 4, 1941, to the Boston hotel, where she stayed until she left in June, 1941, to spend the summer at the Belmont. At the close of the summer season she returned to the Boston hotel. She died at Harwich on October 21, 1941, a suicide by drowning a short distance from the Belmont.

The decedent left Chicago in April, 1931, sent her rugs to Boston, and put the few pieces of furniture she owned in storage in Chicago. She closed her Chicago bank accounts, gave up her safe deposit box there, and opened a new account and also hired a deposit box in a Boston bank. She unsuccessfully endeavored to sell her various parcels of land in Chicago, all of which were unimproved, and a part if not all of which had been forfeited in 1935 for the nonpayment of taxes, but to which she had according to the evidence a right of redemption. The proceeds from the sales of the California and Indiana realties were deposited in Massachusetts savings banks. All the furniture except a desk, which she stored in Chicago, was sold on December 2, 1934, to the warehouseman for $20. From the time the decedent left Chicago in the spring of 1931 she did not maintain any fixed place of abode in that city. She visited there for business and social purposes and had intended a short time before her death to visit there again. She always occupied a furnished hotel room on her visits there. After the death of her husband she continued her practice of depositing her money in savings banks located in this Commonwealth, and when she died she had over seventy accounts in these banks. In substantially all of the new accounts she gave her residence or address as Harwich and changed her residence and address on the old accounts to Harwich. Beginning in 1933 she gave this address to the transfer agents of all the...