Wheeler v. Burgess

• Decision Date: 24 January 1936
• Parties: WHEELER, County Tax Com'r, et al. v. BURGESS.
• Court: Kentucky Court of Appeals

93 S.W.2d 351

263 Ky. 693

WHEELER, County Tax Com'r, et al. v. BURGESS.

Court of Appeals of Kentucky

January 24, 1936

As Modified on Denial of Rehearing March 27, 1936.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by Pauline Ahrens Burgess against Charles C. Wheeler, County Tax Commissioner, and others. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Lawrence S. Grauman and Stuart E. Lampe, both of Louisville, for appellants.

Selligman Goldsmith, Everhart & Greenebaum, of Louisville, for appellee.

DRURY Commissioner.

Mrs Pauline Ahrens Burgess sought to enjoin Charles C. Wheeler the tax commissioner, H. Watson Lindsey, the sheriff, and John P. Grieb, the clerk of the county court, all of Jefferson county, Ky. from certifying or reporting certain assessments of intangible personal property made against her as of July 1, 1933, for taxation in 1934. By amendment the taxes for 1935 based on assessment of July 1, 1934, were included, and upon hearing she was awarded the relief she asked, and Wheeler et al. have appealed. This action was begun on May 9, 1934. Mrs. Burgess was then living in Paris, France, but while it was pending she returned to America to live on November 29, 1934.

Basis of This Action.

The property, the assessment of which caused this litigation, is intangible personal property, the taxable situs of which is at the domicile of the owner, and Mrs. Burgess claims it is exempt from taxation in Jefferson county for the following reasons set forth in her petition. "Pauline Ahrens Burgess is now, and at all times hereinafter mentioned was, the wife of Robert Burgess, who is employed by and associated in business with the American Radiator-Standard Sanitary Corporation. Before July 1, 1929, said Robert Burgess, together with his wife, the plaintiff, Pauline Ahrens Burgess, and their only child, with the bona fide intention of continuing actually to abide permanently without this State, moved from Louisville, Jefferson County, Kentucky, to the City of Paris, Republic of France, at which place said Robert Burgess and this plaintiff since before July 1, 1929, have resided and been domiciled, and where said Robert Burgess has been, and now is, permanently associated with the business of said American Radiator-Standard Sanitary Corporation, and since said time has been employed at and connected with the Paris office of said Company. At the time of said Robert Burgess' removal to Paris, France, said plaintiff, Pauline Ahrens Burgess, together with her daughter and only child, hereinabove mentioned, accompanied said Robert Burgess to Paris, France, where since said time all of said persons have actually lived, maintained a home and place of abode, and where said child of said plaintiff since said time has been, and now is, receiving its education. Said actual residence of said plaintiff, Pauline Ahrens Burgess, and her family has at all times been maintained in good faith in Paris, France, and said members of said family of plaintiff, Pauline Ahrens Burgess, have not left said actual residence except for casual business trips about the continent of Europe, and except for holiday visits with acquaintances in the United States of America."

The trial court, having found these allegations of the petition were established by the proof, found the domicile of Mrs. Burgess to be in Paris, France, and hence awarded her the relief asked.

Where Was the Domicile of Mrs. Burgess?

Since we have recently discussed the legal phases of this question, we will simply refer to the discussion in Johnson v. Harvey, 261 Ky. 522, 88 S.W.2d 42, and pass on to the facts in this case.

The testimony of Mrs. Burgess was heard, and the substance of it is that she is the wife of Robert Burgess, and that both she and her husband were born in Louisville. Mr. Burgess was in 1928 sent to Europe by the Standard Sanitary Manufacturing Company in charge of its European operations. His first work was to take charge of the construction of a plant in Dusseldorf, Germany, carry it to completion, and put it in operation. How long he should stay was not determined, but it was definitely determined he should stay at least four years. Mr. Burgess took his family with him, and soon leased a house and established a home for them in Dusseldorf, expecting to remain there until he got the plant established and everything working smoothly. In a few months his company merged with the American Radiator Company, and Mr. Burgess was put in charge of the European operations of the merged companies.

This necessitated his removal to Paris, France, and in a few weeks he had leased a large house and established a home with his family in Croissy, a suburb of Paris, and there he remained for six years, spending the winters in a Paris apartment house. In the meantime, and in preparation for this sojourn, Mr. and Mrs. Burgess had sold some of the furniture they had had in their home on the Upper River road in Jefferson county, had stored some, had taken with them their silverware, linens, personal and bed clothing, and some other small articles, and had leased out their home in a semifurnished condition. Mr. and Mrs. Burgess had a definitely established abode or home in Croissy, a suburb of Paris, with the usual furnishings, servants, etc., but was it their domicile?

In her testimony Mrs. Burgess says this about her sojourn in Europe and about keeping her house on the Upper River road: "We did not know how long it would last over there, and I wanted to go abroad, I thought it would be an interesting experience, and I did not know when we would come back. We kept the Louisville property because we always thought that if we wanted to come back it would be well to have a place to come to, but we did not know when that would be."

Mrs. Burgess came back to Louisville on a visit or two, stopped either with relatives or at a hotel and always with the definite intention of returning to Paris; her home there being in the meantime kept open and ready for her reception. When she had occasion to stop at a hotel, she registered as from Paris, France. She regarded herself as an American citizen residing in Paris, France, which she was, but was she domiciled there?

A person must have a domicile somewhere. See Johnson v. Harvey, 261 Ky. 522, 88 S.W.2d 42. A person may have many residences, but can have but one domicile; for example, President Roosevelt has a residence in Warm Springs, Ga., a residence in the White House in Washington, a summer residence at Campobello in the Canadian province of New Brunswick, and a residence at Hyde Park, N. Y., and this last one is his domicile. Mrs. Burgess was born and reared in Louisville, and thus it was her domicile of origin. Her husband was born and reared in Louisville, and thus it was his domicile of origin. Upon the marriage of these two, Mrs. Burgess acquired his domicile by operation of law, which in this case was the same as her domicile of origin. That is still their domicile, unless they acquired a domicile of choice in Paris, France, by their removal to and residence there.

Did They Acquire a Domicile in France?

The answer to this question depends entirely upon their intention. Were they definitely intending to abandon their domicile in Louisville and to acquire one elsewhere, in Germany, in France, or any other place? If so, they lost their Louisville domicile the moment they reached Germany and established themselves there to stay; that is, with the intention of remaining there during the remainder of their lives, so far as they then knew.

If they ever had that intention, they acquired eo instante a domicile in Germany, and their domicile in Louisville was lost, and in a like manner they lost that German domicile the moment they established themselves in France expecting there to stay.

The intention to stay, to make the new establishment their home for good, is what makes it their domicile. This is what our fathers called animus manendi, the intention of remaining. A person in his lifetime may have many domiciles, one after another, if at each time he relocates himself he does so with the intention of making the new location his permanent home, but he can have but one domicile at a time, and one he must have.

There is nothing in this record to indicate Mr. and Mrs. Burgess ever had any intention of abandoning their Louisville domicile. The evidence indicates they had a definite intention to return after an indefinite stay abroad. Story in his Conflict of Laws, § 43, says: "The essential fact that raises a change of abode to a change of domicil is the absence of any intention to live elsewhere." Dicey on Conflict of Laws (2d Ed.) 3 is to same effect.

We must gather their intent from the dominant facts, or as the United States Supreme Court said in National City Bank v. Hotchkiss, 231 U.S. 50, 34 S.Ct. 20, 21, 58 L.Ed. 115:

"Apart from possible exceptions, a man cannot retain a domicil in one place when he has moved to another, and intends to reside there for the rest of his life, by any wish, declaration, or intent inconsistent with the dominant facts of where he actually lives and what he actually means to do." The converse of this is equally true and is applicable here.

Other cases dealing with question of intent are: Kerby v. Town of Charlestown, 78 N.H. 301, 99 A. 835, L.R.A.1917D 785; Dupuy v. Wurtz, 53 N.Y. 556; In re Winsor's Estate, 264 Pa. 552, 107 A. 888; Blaine v. Murphy (D.C.) 265 F. 324; Thayer v. City of Boston, 124 Mass. 132, 26 Am.Rep. 650; Follweiler & Wife v. Lutz, 112 Pa. 107, 2 A. 721; Lyman v. Fiske, 17 Pick. (Mass.) 231, 28 Am.Dec. 293; Marks v. Marks (C.C.) 75 F. 321; Inhabitants of Wilbraham v. Inhabitants of Ludlow, 99...