Tax Collector of Lowell v. Hanchett

• Citation: 240 Mass. 557
• Parties: TAX COLLECTOR OF LOWELL v. FRANK HANCHETT.
• Decision Date: 03 March 1922
• Court: United States State Supreme Judicial Court of Massachusetts

240 Mass. 557

TAX COLLECTOR OF LOWELL v. FRANK HANCHETT.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1922

November 15, 1921.

Present: RUGG, C.

J., BRALEY, CROSBY CARROLL, & JENNEY, JJ.

Domicil. Tax Assessment.

Evidence Presumptions and burden of proof, Admission. Agency. Municipal Corporations.

Upon the hearing by a judge without a jury of an action by the collector of taxes of a city against one alleged to have been domiciled in that city on April 1, 1916, for personal property taxes assessed for that year, where the defendant contended that certain acts of his as to residence in a nearby town resulted in his being domiciled in the town and not in the city on that date the judge found "that as to the intent of the defendant . . . in March, 1916, when he hired half of [a certain house in the town] . . . he intended to live in the manner in which he has actually lived since that time, and that, so far as consistent with so living, he intended to be an inhabitant of the town . . . and to acquire a domicil there, but that to live in the manner in which he has lived does not seem to me to amount in a real and just sense, to making [the town] . . . the defendant's home," and found for the plaintiff. Upon a report of the action to this court for determination, it was held, that in the circumstances the determination of the domicil of the defendant on April 1, 1916, was a question of fact; that the finding of the trial judge was warranted by the evidence and therefore that it should not be disturbed.

At the hearing of the action above described, evidence offered by the defendant that no assessment on his personal property was levied by the city on April 1, 1917, and on April 1, 1918, and that the assessors altered the sworn statement of the cashier of a bank as to the defendant's residence in 1916 and sent a copy of the altered statement to the tax commissioner, was excluded rightly, acts of the assessors, who were public officers, not binding the municipality as admissions and the evidence not being relevant as tending to show the defendant's intention to change his domicil or that his actual place of abode had been changed at the date of the assessment in question.

CONTRACT by the collector of taxes of the city of Lowell to recover a personal property tax alleged to be due from the defendant for the year 1916. Writ dated March 30, 1918.

In the Superior Court, the action was heard by Hammond, J., without a jury. Material evidence and the substance of requests for rulings are described in the opinion. The judge found "that as to the intent of the defendant in March, 1916, when he hired half of the Parker house [in Dunstable], he intended to live in the manner in which he has actually lived since that time, and that, so far as consistent with so living, he intended to be an inhabitant of the town of Dunstable and to acquire a domicil there, but that to live in the manner in which he has lived did not seem to me to amount in a real and just sense to making Dunstable the defendant's home." The judge found for the plaintiff in the sum of $9,283.17 with interest from the date of the writ and reported the action to this court for determination.

R. O. Harris, for the defendant. W. D. Regan, for the plaintiff.

BRALEY, J. This is an action of contract by the collector of taxes of the city of Lowell to recover "$8,537.24, the amount of a tax . upon intangible personal estate . . . and $2 . . . poll tax assessed upon the defendant" for the fiscal year beginning "April 1, 1916." St. 1909, c. 490, Part II, Section 33. St. 1914, c. 198, Section 1. The judge found for the plaintiff and at the defendant's request reported the case with all the material evidence, his conclusions of fact, and rulings, "for determination by the full court of the questions of law raised."

The material contention of the defendant appears in his seventh request, "That as matter of law upon all the evidence . . . the defendant was a legal resident of the town of Dunstable, Mass., on the first day of April, 1916." It was possible for him to have more than one home, or to be homeless if he so preferred, yet he could have only one domicil, for "Every person must have a domicil somewhere." Abington v. North Bridgewater, 23 Pick. 170, 177. Borland v. Boston, 132 Mass. 89 , 99. His domicil of origin having been in Lowell, it continued there for the exercise of political privileges and for purposes of taxation, "until both the intent and fact of change of actual residence to another place have concurred to establish a new domicil there." Shaw v. Shaw, 98 Mass. 158 , 160. Borland v. Boston, 132 Mass. 89 , 95. Babcock v. Slater, 212 Mass. 434 , 436. The plaintiff's second request, that "The defendant's domicil having been in Lowell . . . for years prior to 1916 his domicil continued in Lowell until a new one was acquired," which the judge gave, correctly stated the law.

The judge on all the evidence was warranted in finding that the defendant in 1915 had formed an intention to leave Lowell, and accompanied by his wife visited several places, none of which were found to be acceptable. But, his attention having been called to Dunstable, a town about ten or twelve miles distant from Lowell where the rate of taxation was much less, he rented on March 1, 1916, half of a house in that town, and notified the assessors that he had taken up his residence in Dunstable where he desired to be assessed and have his name placed upon the voting list. On the same day he wrote to the assessors of Lowell what had taken place, and also requested a national bank in which he was a stockholder to change his legal residence on its books from Lowell to Dunstable. Between March 10 and March 20 he was at this house twice, as well as on March 23, 24 and 25, when he stayed over night. From March 27 to April 2 or 3 he remained there nights and had his meals. His wife and daughter, who composed his family, were visiting his son engaged in business in Akron, Ohio. Mrs Hanchett on her return about April 10 or 20 ". . . visited the Dunstable house with the defendant, and selected some wall-papers, and did some work about the house, sweeping and preparing meals." The ceilings also were repaired, some papering and painting done in the spring of 1916, and electric lights were installed. The defendant...