In the Matter of the Appraisal under the Transfer Tax Law of the Estate of Charles F. Wise, Deceased. Lester D. Wise, Executor and Legatee, etc., Appellant; William Sohmer, as Comptroller of the State of New York, Respondent.
(Supreme Court, App. Div., First Department,
December 31, 1914.)
Decedent's Estate — Residence of Decedent — Change of Domicile.
Evidence that a person after buying a plot of landl in an adjoining State* went there taking his personal belongings with him', and, resided with his son while his house was nearing completion until the date of his death, and repeatedly stated that he intended to make it his residence* and that he had come there to establish a voting residence, is sufficient to establish a change of residence.
Ingraham, P. J., and McLaughlin, J., dissented, with memorandum.
Appeal by Lester D. Wise, executor and legatee* .etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on or about the 4th day of May, 1914, adjudging that decedent died a resident of the State of New York.
George H. Fletcher, for the appellant.
Theodore du Moulin, for the respondent.
Scott, J.
— This proceeding was initiated by a petition of the State Comptroller alleging inter alia that decedent at the time of his death resided without the State of New York. Notwithstanding this allegation the appraiser found that he was a resident.
The evidence upon which he arrived at this conclusion was the affidavit and oral testimony of decedent’s son. This evi*190dence was to the effect that decedent had resided in the city of Hew York for many years and was engaged in business there; that he had always voted there when he did vote; that for between three and five years he had resided in an apartment hotel in the city of Hew York, the furniture of the apartment belonging to his wife; that in the year 1910 he bought a plot of land at Long Branch, H. J., and in April, 1911, went down to Long Branch, taking his personal belongings with him; from that time until the date of his death on September 5, 1911, he resided at Long Branch with his son who lived there; that his house was nearing completion; that he repeatedly stated that he intended to make Long Branch his residence, and said that he had come down there to establish a voting residence. There is no evidence that he ever stayed for a night in Hew York after April, 1911, or even that he retained the lease of his apartment.
I think that there was sufficient to establish both the factum of a change of residence and an animus. If decedent moved down to Long Branch and actually lived there, even for a short time, with the intention of making that his permanent residency it is immaterial that he lived in his son’s house instead of his own.
The order appealed from is reversed, with ten dollars costs and disbursements, and the appeal of this executor allowed.
Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., and .McLaughlin, J., dissented.
Ingraham, P. J. (dissenting).
— I do not think that upon the facts as they appear in this, record the deceased ever acquired a new domicile in Hew Jersey. He had been a resident of this State for many years, had voted here, and that domicile continued until he had acquired a new domicile. He clearly did not intend to acquire a new domicile at the house, of his.son, *191where his stay was merely temporary pending the completion of the house which he was then building in ¡New Jersey. He never could have acquired a new domicile in the new house, as it was not completed before his death.
I think he, therefore, remained a resident of ¡New York until the time of his death, and that the court below correctly so decided.
McLaughliy, J., concurred.
Order reversed, with- ten dollars costs and disbursements, and the appeal of the executor allowed. Order to be settled on notice.