Smith v. Stannard

• Decision Date: 27 July 1908
• Citation: 81 Vt. 319,70 A. 568
• Court: Vermont Supreme Court
• Parties: SMITH v. STANNARD et al.

70 A. 568

81 Vt. 319

SMITH

v. STANNARD et al.

Supreme Court of Vermont. Rutland.

July 27, 1908.

Exceptions from Rutland County Court; Loveland Munson, Judge.

Assumpsit by trustee process by William A. Smith for the collection of a tax assessed against Mary A. Stannard, in which action the First National Bank of Fair Haven and others were named as trustees. Judgment for plaintiff, and Mary A. Stannard excepts. Reversed and remanded.

The action is assumpsit by trustee process for the collection of a tax assessed against the defendant in the town of Fair Haven on the grand list of the year 1902. The plaintiff's evidence tended to show: That Herman Stannard, a brother of the defendant, deceased June 16, 1901; that prior to his decease he had spent a part of every year for seven or eight years in Fair Haven during the time from May or June until February or March following; that when he was there his sister, the defendant, a single woman about 80 years of age, was frequently seen there with him; and that after his decease she remained there till March 17, 1902, when she left Fair Haven and never returned. The exceptions state that "as to the tendency of the evidence concerning the character and continuance of her abode with her brother, and of his residence at Fair Haven, the reporter's transcript of the testimony of the following witnesses is referred to and shall control," giving the names of the particular witnesses. In addition to what has already been stated respecting the evidence, the testimony of these witnesses tended to show: That the brother, who was a widower, owned two dwelling houses concurrently till the fall of 1900, one at Hampton, N. Y., which he sold that fall, and one on River street in the village of Fair Haven, this state, which he deeded to his daughter, Mary E. Stannard, who lived with him, about two weeks before his death. That when owning both places he stayed at each a portion of every year for some years prior to his decease. That after selling the one at Hampton he stayed at the one in Fair Haven and was taken ill there in the fall of 1900, his illness continuing till his death. That previous to the year 1895, and ever after, the defendant's sister, Mrs. Kirkland, owned a house in Granville, N. Y., in which she resided. That in the spring of 1895 the defendant, having been living with her brother at Hampton, went from there to her sister's house in Granville, taking her trunk with her, from which time forward as long as the brother lived, and longer, she had two rooms there set apart, furnished either by herself or her sister, for her occupancy, and therein her trunk and things were continually kept. That during the same time these rooms were occupied by no one else, except that when she was away her niece, Miss Kirkland, slept in one of them sometimes, perhaps once or twice in a summer, when necessary because she had company and was short of room. That when there the defendant did not board, but did pay in part the expense of the household. She bought things for the family, and so did her sister, Mrs. Kirkland, each as she thought was right, and the defendant called that her home. That during the seven or eight years before mentioned, the defendant lived with her brother in the house on River street in Fair Haven as his house keeper whenever he was there. They closed the house and went away together each year in February or March and returned together in May or June following, except that in the spring of 1901 she went away and returned as usual, but he, being ill, did not go. That she was never in any of those years at Fair Haven on the 1st day of April. That when thus acting as housekeeper for him she sometimes bought milk tickets and paid for them, also groceries, but as to whose money was used by her for such purposes there was no evidence. That she assisted some of the time in caring for her brother during his illness. That the furniture in the house before and at the time of the brother's death belonged to his son, who predeceased his father. No part of it was owned by the defendant. And that after the brother's death the defendant remained there with her niece, Mary E., the owner of the house, without any arrangement therefor, until the 17th day of the next March, when she went to the house of her sister, Mrs. Kirkland, in Granville, N. Y., taking with her all the personal effects which she had there, being a valise and some things she needed to wear. The exceptions state that the defendant was at Mrs. Kirkland's in Granville at intervals when not at her brother's in Fair Haven, and she remained there continuously from and after the time she left Fair Haven, March 17, 1902, as before stated. The plaintiff also introduced evidence showing, and defendant conceded, that she testified, among other things, in giving her deposition to be used in this case: That her residence was in the town of Granville, N. Y., and had been since 1895; that she had had considerable property for several years during that time, mortgages and the like, since 1898; that at no time had she paid any taxes in the town of Granville or elsewhere since 1895, but had paid a tax every year they asked her. It was conceded that the population of Fair Haven April 1, 1902, exceeded 2,500, and did not exceed 3,000.

Argued before ROWELL, C. J., and TYLER and WATSON, JJ., and WATERMAN, Superior Court Judge.

E. D. Raymond, F. S. Piatt, and Butler & Moloney, for plaintiff.

John G. Sargent and Hunton & Stickney, for defendants.

WATSON, J. At the close of the evidence, the defendant moved that a verdict be directed in her favor on the grounds that: (1) There is no evidence on the part of the plaintiff tending to show such an appraisal of the defendant's taxable property as the law requires; (2) there is no evidence tending to show notice to the defendant that the listers in reference to her list have taken the stops which the law requires; (3) there is no evidence that a notice to the defendant, she having removed from Fair Haven and not being there, was given to her by the treasurer of the town within the time required by law, before he issued a warrant for the collection of the tax; (4) the evidence has no tendency to show that on the 1st day of April, 1902, the defendant was a resident of Fair Haven, so that the listers were justified in making up a list as they did; and (5) there is no evidence of a seasonable lodging in the town clerk's office of an abstract of individual lists, and that notices of the time and place of hearing persons aggrieved by an action of the listers were posted in the town clerk's office and other places required by law within the time the law required. The motion was overruled, to which the defendant excepted.

For the tendency of the evidence concerning the character and continuance of defendant's abode with her brother, and of his residence at Fair Haven, the reporter's transcript of the testimony of certain witnesses is referred to and is to control. The brother died June 16, 1901. Consequently, her abode with him, and his residence, wherever it was, ceased at that time, and our consideration of the testimony to which reference is thus made is limited accordingly. As the case stood on the evidence, whether the defendant's domicile was at Granville, N. Y., or at Fair Haven, this state, at the time of her brother's death, was clearly a question of fact for the jury. Jamaica v. Townshend, 19 Vt. 267; Mann v. Clark, 33 Vt. 55; Hurlbut v. Green, 42 Vt. 316; Anderson v. Est. of Anderson, 42 Vt. 350, 1 Am. Rep. 334; Fulham v. Howe, 60 Vt. 351, 14 Atl. 652. The verdict shows that the jury must have found it to be at Fair Haven, and the exceptions state that after her brother's decease the defendant remained there until March 17, 1902, a period of nine months, when she left there and never returned. It does not appear that all the evidence bearing on the question of her removal at that time is shown by the bill of exceptions, and, as before seen, no part of the transcript of the testimony is before us thereon. We cannot say therefore as matter of law, on the record before us, that she made such a removal from Fair Haven to Granville as to constitute a change of her domicile to the latter place before the 1st day of April following, and consequently in overruling the fourth ground of the motion error does not appear. It follows that the defendant's standing on the record is that of a resident taxpayer, and the other questions presented must be determined accordingly.

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