State-planters Bank & Trust Co. Of Richmond v. Commonwealth

• Decision Date: 08 January 1940
• Citation: 6 S.E.2d 629
• Court: Virginia Supreme Court
• Parties: STATE-PLANTERS BANK & TRUST CO. OF RICHMOND. v. COMMONWEALTH.

6 S.E.2d 629

STATE-PLANTERS BANK & TRUST CO. OF RICHMOND.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 8, 1940.

Error to Circuit Court of City of Richmond; Julien Gunn, Judge.

Proceeding by the State-Planters Bank & Trust Company of Richmond, Va., as executor and trustee of the estate of Emilie Hanewinkle, against the Commonwealth of Virginia, to obtain relief from an assessment of inheritance taxes. Judgment for the Commonwealth, and the executor and trustee brings error.

Reversed and remanded, with direction.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

J. Vaughan Gary, of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., Asst. Atty. Gen., for defendant in error.

SPRATLEY, Justice.

The question presented in this case is whether or not Emilie Hanewinkle was a resident of this State, within the meaning of its tax laws, when she died in 1938. If her legal domicile was in Virginia, her estate was subject to an assessment for State inheritance taxes, --if not, the assessment was erroneous.

Miss Hanewinkle at one time resided in this State, with her domicile in the city of Richmond. She was a spinster lady of considerable means and without any family ties requiring her residence at any specific place. More than thirty years ago, perhaps forty, she left Virginia and went to Rome, Italy. During this period, she returned to America four times. She had no mansion house or fixed place of abode in Virginia. During her trips to America, she visited Richmond, staying at the Jefferson Hotel. On her last visit, she registered at that hotel on December 1, 1934, as "Miss E. Hanewinkle, Rome, Italy." She left the hotel on April 9, 1935, and returned to Italy. She died in Rome, on January 3, 1938, and was there buried.

The State-Planters Bank and Trust Company of Richmond, Virginia, acted as financial advisor of Miss Hanewinkle and represented her in handling the collection and remittances of the income from her securities. She carried on a correspondence with this bank and its officers, which correspondence dealt with her business affairs in America, her physical and financial condition, and her opinion of peoples and nations.

Evidence of her intentions with reference to her domicile is presented through this correspondence and her conversations with the officers of the above bank and with her relatives. The letters disclose that she stayed at the same hotel or apartment in Rome year after year; that she made occasional trips to Paris and to other parts of Europe; that she was much displeased with the political and economic system of this country; that she felt she could live much more cheaply in Italy than in this country; and that she was a woman of independent thought and firm views with both the courage and capacity to express them.

The several letters in evidence contain the following expressions: On November 8, 1927, she wrote: "The fact was I left Rd. on account of the high taxes (over 30 years ago) * * *."; on June 9, 1928: "I never expect to reside in Richmond (unless most unforeseen circumstances occur) so I think I will go back to Maryland before the year ends and remove my stocks, etc. back to Balto. * * * I planned to come over to U. S. for a few months this year, but I doubt if I ever cross the ocean again (unless I become miraculously better this summer--?)"; on April 26, 1932: "I am only thankful I can be in Europe, where nurses, doctors, and taxes, board, lodging and general expenses are so much less than in America."; on January 16, 1934: "As I wrote, I had intended coming to U. S., but, I am such an invalid still that I doubt exceedingly if I am ever able to cross the ocean. * * * I know living in U. S. would be impossible for me."; and January 24, 1934: "If I come to U. S. I could not possibly have a home there on $2,400, --per annum as I find it impossible even to live here, now on this sum. * * * If I were younger I'd give up American citizenship in order to live in some more honorable country than U. S. All I can do now honestly is to swear to support the 'Constitution' (when I get my passport here--) though in U. S. A. it is completely ignored and cast down!"

On one of her visits to America, in a conversation with the vice-president of the State-Planters Bank and Trust Company, she stated that she did not like the U. S.; that she preferred to live in Rome; that practically all of her close friends were abroad; and that she was anxious to get back to Italy to be near to the physicians of that country, who knew her medical needs better than any other doctors in the world.

She owned no real estate in Virginia. Her tangible personal property, consisting of household furniture, paintings, clothing, etc., was in Rome. She had approximately $125 worth of personal property, termed bric-a-brac, in storage in Richmond, but she had never been assessed there for taxation on any tangible or intangible property, nor for poll taxes.

Her Federal tax returns were filed with the United States Department of Internal Revenue in Baltimore, Maryland, a filing office for non-resident returns.

On January 5, 1935, while in Richmond, Virginia, Miss Hanewinkle made, executed and acknowledged her last will and testament. The preamble to the will reads: "I, Emilie Hanewinkle, (formerly Hanewinckel) of Richmond, Virginia, * * *." This will was probated on January 7, 1938, in the Chancery Court of the city of Richmond, as that of a non-resident of the State of Virginia having estate in the said city. The State-Planters Bank and Trust Company of Richmond, Virginia, duly qualified as executor and trustee of the estate:

The Department of Taxation of Virginia assessed the estate with state succession or inheritance taxes amounting to $1,505.24. The plaintiff in error as executor and trustee promptly applied to the Circuit Court of the city of Richmond for relief from the assessment on the ground that its testate was a nonresident of the State of Virginia and that the assessment was thereby erroneous, illegal and void.

The trial court, after consideration of the foregoing evidence introduced by the plaintiff in error, none having been offered by the Commonwealth, denied relief.

The Commonwealth contends that, even admitting Miss Hanewinkle attempted or desired to give up her residence and domicile in Virginia, the evidence is insufficient to show that she had acquired a domicile in Rome.

It is admitted that under the inheritance tax laws of Virginia the situs for the taxation of intangible personal property is the permanent residence or domicile of the owner. Virginia Tax Code, 1936, § 120, append. p. 2428. It should not be necessary here to enter into any extensive discussion as to what constitutes such residence as amounts to domicile. That question has been ably and exhaustively considered in numerous Virginia cases. Pendleton v. Com., 110 Va. 229, 65 S.E. 536; Cooper's Adm'r v. Com., 121 Va. 338, 93 S.E. 680; Bowen v. Com., 126 Va. 182, 101 S.E. 232; and Talley v. Com., 127 Va. 516, 103 S.E. 612. See, also, Long v. Ryan, 30 Grat. 718 71 Va. 718; Guilfoil v. Hayes, 169 Va. 548, 194 S.E. 804; and State of Texas v. State of Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817.

We do not understand that the parties disagree as to the following legal rules and principles enunciated in the foregoing cases, but that they do disagree as to...