Staiar's Adm'r v. Commonwealth

• Decision Date: 24 March 1922
• Citation: 194 Ky. 316,239 S.W. 40
• Parties: STAIAR'S ADM'R ET AL. v. COMMONWEALTH, BY MAYS, REVENUE AGENT.
• Court: Kentucky Court of Appeals

239 S.W. 40

194 Ky. 316

STAIAR'S ADM'R ET AL. v. COMMONWEALTH, BY MAYS, REVENUE AGENT.

Court of Appeals of Kentucky.

March 24, 1922

Appeal from Circuit Court, Owen County.

Suit by the Commonwealth of Kentucky by W. O. Mays, its Revenue Agent, against Lee Kemper, as administrator of the estate of Tobias Staiar, deceased, and others, to collect an inheritance tax. Judgment for the plaintiffs, and the defendants appeal. Reversed and remanded, with directions.

S.D Rouse, of Covington, W. A. Price, of Owenton, C. H. Syme, of Washington, D. C., and J. G. Vallandingham, of Owenton, for appellants.

Cammack & Baker and H. W. Alexander, all of Owenton, for appellee.

SETTLE J.

After a residence of more than 80 years in Owenton, Ky. Tobias Staiar died, intestate, January 8, 1918, at the home of his daughter and only heir at law, Mrs. Kate Rousseau, wife of Lovell G Rousseau in the city of Washington, District of Columbia where they had resided many years. Mary Staiar, wife of Tobias Staiar, died December 7, 1917, at about 84 years of age; and at the time of his death he lacked but a few months of being 102 years of age. He had accumulated and left at his death an estate amounting to about $226,000, consisting of $220,000, in United States government bonds, a house and lot in Owenton worth $5,000, two or three diamonds, furniture, and other effects of the value of $1,000. After the decedent's death his daughter, Mrs. Rousseau, by an order of the probate court of the District of Columbia, was appointed and duly qualified as administratrix of his estate; and by a like order of the Owen county court of this state, Lee Kemper, a resident of the latter county and state, was appointed and duly qualified as the administrator of the decedent's estate. The daughter by virtue of her appointment as administratrix took charge of the decedent's personal estate in the District of Columbia, and Kemper, under his appointment as administrator, of his personal estate in Owen county, Ky.

This proceeding was later instituted in the Owen county court in the name of the commonwealth by its revenue agent, W. O. Mays, under Kentucky Statutes, § 4281a1, against Lee Kemper, as administrator of Tobias Staiar's estate, Kate Rousseau, the latter's daughter and only heir at law, and L. G. Rousseau, her husband, to collect of Staiar's estate an inheritance tax, or taxes, claimed to be due therefrom, upon the assumption that he was a resident of and domiciled in Owen county when he died. The defendants filed a general demurrer to the statement, setting forth the plaintiffs' claims, which the county court overruled. The defendants then filed joint and several answer, which traversed the averments of the statement, and, in addition, substantially alleged that the decedent, Tobias Staiar, died a resident of the city of Washington, District of Columbia, where he had previously removed and in good faith permanently established his domicile; and that the whole of his estate, except the house and lot in Owenton, Ky. and furniture of the house, was at the time of his death, and continuously since the happening of that event, situated in the city of Washington, District of Columbia, and for these reasons is not subject under the laws of Kentucky to an inheritance tax or taxes in that state. The affirmative matter of the answer was controverted by reply, and with the issues thus completed the case went to trial in the county court, which resulted in a judgment sustaining the plaintiffs' contention and awarding them in behalf of the commonwealth of Kentucky $6,962.20, as the total amount of inheritance tax, including interest and penalty, recoverable out of the estate of the decedent, Tobias Staiar.

From that judgment the defendants duly prosecuted an appeal to the Owen circuit court, and on the trial in the latter court the plaintiffs again obtained judgment; the amount of inheritance tax thereby recovered, including interest and penalty, being $7,300. The defendants filed motion and grounds for a new trial, but the motion was overruled by the circuit court, excepting to which, they prayed and were granted an appeal from its judgment to this court.

There appears to be no disagreement between the parties as to the correctness of the amount of the inheritance tax, interest, and penalty, imposed by the judgment of the circuit court, if such tax is legally collectable. The controversy is as to whether the estate of Tobias Staiar, deceased, is subject to such tax. If at the time of his death his legal residence was in this state, the tax should be paid out of the entire estate left by him, subject to such exemptions as may be allowed by the statute imposing the tax.

If his legal residence was not then in this state, only such part of the estate as may then have had a situs in this state, and would descend under its laws to his daughter as the only heir at law, would be subject to such tax, to the extent its value might exceed the exemptions allowed by the statute of this state imposing the tax. However, we do not understand that the feature of the case last mentioned is in dispute. The sole question here involved is as to the legal residence of Tobias Staiar at the time of his death; it being the contention of the appellants (defendants in the court below) that he was then a resident of Washington City, District of Columbia, and that of the appellees (plaintiffs in the court below) that he was a resident of Owenton, Owen county, Ky.

The law controlling the decision of this question is so universally recognized that no material diversity of opinion can arise regarding its meaning. In Gleason and Otis on Inheritance Taxation (2d Ed.) 213, it is said:

"The word 'residence,' as used in the inheritance tax statutes, is synonymous with 'domicile'; and, although the statutes use the word 'resident,' the residence is determined by applying the principle relating to domicile."

Before the enactment of inheritance tax statutes, both text-books and courts of last resort had proclaimed certain rules for determining domicile. Mention of these rules in detail is unnecessary, as they are given in epitomized form in the following statement of the law contained in Cooley on Taxation, vol. 1, p. 641:

"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. It is a maxim that every man must have a domicile somewhere; and also that he can have but one. Of course it follows that his existing domicile continues until he acquires another; and, vice versa, by acquiring a new domicile he relinquishes his former one. From this view it is manifest that very slight circumstances must often decide the question. It depends upon the preponderance of evidence in favor of two or more places; and it may often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive were it not for the existence of facts and circumstances of a still more conclusive and decisive character which fix it beyond question in another. So, on the contrary, very slight circumstances may fix one's domicile, if not controlled by more conclusive facts fixing it in another place."

Intention to change one's domicile must exist in order to effect the change; therefore the acquiring of a new domicile necessarily involves an exercise of volition or freedom of choice; hence the removal must be voluntary. Our meaning is concisely stated in the following excerpt from Dicey's Conflict of Laws, 106:

"The only principle which can be laid down as governing all questions of domicile is this: That where a party is alleged to have abandoned his domicile of origin, and to have acquired a new one, it is necessary to show that there was both the factum and the animus. There must be the act, and there must be the intention. A new domicile is not acquired until there is not only a fixed intention of establishing a permanent residence in some other county, but until also this intention has been carried out by actual residence there."

It will be found from an examination of the several cases decided by this court, cited below, that the rules for determining the question of domicile set forth above have been uniformly applied in this jurisdiction. Tipton v. Tipton, 87 Ky. 245, 8 S.W. 440, 10 Ky. Law Rep. 252; Boyd's Ex'r v. Comth., 149 Ky. 767, 149 S.W. 1022, 42 L. R. A. (N. S.) 580, Ann. Cas. 1914B, 481; Semple v. Comth., 181 Ky. 679, 205 S.W. 789; Saunders v. City of Flemingsburg, 163 Ky. 680, 174 S.W. 51; Hurst v. City of Flemingsburg, 172 Ky. 127, 188 S.W. 1085; Rudolph v. Wetherington's Adm'r, 180 Ky. 272, 202 S.W. 652; City of Covington v. Shinkle, 175 Ky. 530, 194 S.W. 766. It will also be found that the following additional authorities are of like effect: 19 C.J. 406, 407; Ennis v. Smith, etc., 14 How. 400, 14 L.Ed. 472; People v. Moir, 207 Ill. 180, 69 N.E. 905, 99 Am. St. Rep. 205; In re Newcomb, 192 N.Y. 238, 84 N.E. 950; Tally v. Comth., 127 Va. 516, 103 S.E. 612.

Following the consideration we have given the law by which our decision of the question of residence here involved must be controlled, it only remains to apply to the evidence the rules it prescribes for determining that issue, which, after all, is mainly one of fact. Before referring to the witnesses or discussing the evidence in detail, however, it will be proper to mention certain facts which appear to be admitted by the parties to the action. The considerable estate left by the decedent, Tobias Staiar, had been accumulated through a long and probably uneventful life...