Price v. Price

Opinion by

Mr. Chief Justice Stebbett,

In obedience to the precept of the orphans’ court, this feigned issue was formed for the purpose of determining the disputed question of fact, whether, at the time of his decease in August, 1890, Henry F. Price was a resident of and domiciled in Pennsylvania. The validity of the testamentary paper alleged to be his last will, as well as the jurisdiction of the register of wills in admitting the same to probate, depended upon the determination of that question. The proponent of said alleged will, the executor therein named, was made plaintiff in the issue, and decedent’s only child was made defendant. In his declaration, the plaintiff “ averred that said Henry F. Price, at the time of his decease, was a legal resident of Pennsylvania,” etc. Defendant in her plea distinctly traversed that averment, and issue was joined thereon. It therefore follows that the burden of proof was on the plaintiff; and he recognized that fact by proving in the outset that decedent was born in West Chester, Pa.; that, about the time he attained his majority, he embarked in business and acquired a domicile of choice in the city of Philadelphia, and, after residing there for eight or ten years, he removed to New York, many years ago, and there acquired and maintained his second domicile of choice. These facts were conceded ; but it was necessary for plaintiff to go further, and he accordingly introduced testimony tending to prove that said decedent, less than two months before his decease, abandoned his New York domicile and resumed his domicile of origin in West Chester, Pa., and resided there until he died. This latter allegation, that he abandoned his New York domicile, etc., was controverted by defendant, who introduced testimony tending to prove the contrary. It is not our purpose to review or discuss this conflicting testimony. It is sufficient to say that it bore directly on the issue formed by the pleadings and was clearly for the exclusive consideration of the jury, whose special province was to judge as to the credibility of the witnesses, weigh the evidence and determine for themselves whether it was true, as alleged by the plaintiff, that the decedent did abandon his New York residence and come to West Chester with the intention of thenceforth making his permanent home in this state. By their verdict in defendant’s favor, the jury have by necessary implication declared that he did not; and unless the learned trial judge erred in one or more of the particulars complained of, their verdict should not be disturbed.

The question at issue, and the different phases thereof, as presented by the testimony, together with the law applicable thereto, were all clearly and accurately stated in the general charge and answers to defendant’s points. In the language of her fourth, seventh and eighth points, which were affirmed and not excepted to, the following instructions were given : “ 4. If the jury find that the legal residence of Henry F. Price was, at the time of his decease, in the state of New York, the verdict must be for the defendant.” “ 7. Acts alone are not sufficient to constitute residence, but it requires acts and intentions combined.” “ 8. The ownership of real estate in Chester county, not coupled with residence therein, is of no value with reference to domicile or residence.” The first to seventh specifications, inclusive, are to the learned judge’s answers to her remaining points, and the eighth and ninth are to portions of his charge recited therein respectively. In affirming the first and second points, he, in the language thereof, instructed the jury : “ 1. Henry F. Price having been a resident of the city of Brooklyn, in the state of New York, for more than fifteen years prior to June 30, 1890, the burden of proof is on the plaintiff in this cause to satisfy you that, at the time of his death, August 26, 1890, his legal residence was other than in the city of Brooklyn, aforesaid : ” and “ 2. The plaintiffs having alleged that the legal residence of Henry F. Price, at the time of his decease, was in West Chester, said plaintiff must satisfy the jury of this fact, otherwise the verdict must be for the defendant.”

There was certainly no error in affirming these points. It was proved by plaintiff and conceded by defendant that Brooklyn, New York, was decedent’s chosen domicile for more than fifteen years prior to June 30,1890. In the absence of affirmative proof to the contrary, the presumption would be that Brooklyn continued to be the place of his legal residence until his decease. The defendant was certainly not required to prove a negative, especially in view of the pleadings, in which, as we have seen, the plaintiff assumed the burden of proving the affirmative fact upon which his whole case depended. Citation of authority for a proposition so self-evident as that is surely not required.

In view of the evidence, we think there is no error in either of the other answers to defendant’s points. Neither of them requires discussion. We find nothing in any of the instructions complained of that is not substantially in harmony with the settled principles of law, relating to the subject of domicile.

As generally defined, a person’s domicile is the place where he has his true, fixed and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Beginning life as an infant, every person is. at first necessarily dependent. When he becomes an independent person he will find himself in possession of a domicile, which in most cases wall be the place of his birth, or domicile of origin as it is termed. By his own act and will, he can then acquire for himself a legal home or domicile different from that of origin, termed a domicile of choice. This is acquired by actual residence coupled with the intention to reside in a given place or country, and cannot be acquired in any other way. For that purpose, residence need not be of long duration. If the intention of permanently residing in a particular place exists, a residence in pursuance of that intention, however short, will establish a domicile. The requisite animus is the present intention of permanent or indefinite residence in a given place or country, or, negatively expressed, the absence of any present intention of not residing there permanently or indefinitely. Domicile of origin must be presumed to continue until another sole domicile has been acquired by actual residence, coupled with the intention of abandoning the domicile of origin. This change must be' animo et facto, and the burden of proof is on the party who asserts the change : 5 Am. & Eng. Enc. of Law, 857, 861 to 865, and cases there cited: Hood’s Est., 21 Pa. 106 ; Pfoutz v. Crawford, 36 Pa. 421; Reed’s Ap., 71 Pa. 378, 383; Carey’s Ap., 75 Pa. 201; Hindman’s Ap., 85 Pa. 466, 469; Follweiler v. Lutz, 112 Pa. 107; Jacobs on Domicile, § 150; Story’s Confl. of Laws, § 55.

In those portions of the charge complained of in the last two specifications the jury were rightly instructed “to recollect all the evidence, to pass upon the credibility of the witnesses, and then, after considering all the evidence, say whether or not Mr. Price had changed his residence, prior to his death, from the city of Brooklyn to the borough of West Chester. He did not change it to any other place. You cannot go astray on that point, for he never went to any other place, no matter what his intention may have been. His intention may have been to go to Birchrunville or Philadelphia, but an intention not carried out, not consummated by actual removal, amounts to nothing. It does not change his residence. His residence would remain where it was previous to any such thought or the existence of any such intention..... If his residence was not changed to West Chester, it still remained in Brooklyn.”

Again: “ If the plaintiff has satisfied you that he changed his residence, in the way I have described to you, that the law requires it shall be changed, then your verdict will be for the plaintiff.”

The case appears to have been carefully tried. We find no error in the instructions given to the jury. If they erred in not finding according to the weight of the evidence, the remedy was in the court below on the motion for new trial. That was considered and denied, presumably because the trial judge was satisfied with the verdict. We cannot review his action in that regard.

Judgment affirmed.