J. P. KIRBY v. BRADFORD COUNTY.
APPEAL BY PLAINTIEE EROM THE COURT OE COMMON PLEAS OE BRADFORD COUNTY.
Argued March 19, 1890
Decided April 7, 1890.
A bill having been filed to set aside an assessment and to restrain the collection of taxes upon personalty, on the ground that the plaintiff was a non-resident of the state, the master’s finding, approved by the court below and based upon sufficient evidencé, that the plaintiff’s domicile was in the township where and when the assessment was made, would not be reversed.
Before Paxson, C. J., Sterrett, Williams, McCollum and Mitchell, JJ.
No. 232 January Term 1890, Sup. Ct.; court below, No. 1 September Term 1887, C. P. in Equity.
On May 4,1887, J. P. Kirby filed a bill in equity against G. H. Vandyke and others, county commissioners, L. M. Bowman, assessor of Towanda township, and A. W. Dimmock, tax collector of said township, in which the plaintiff averred:
That he was a resident of California; that on December 6, 1886, the assessor of said township had furnished him with a blank upon which to make a return of matters made taxable for state purposes under the act of June 30, 1885, P. L. 193 ; that plaintiff, without making such return, made and subscribed an affidavit stating therein that his residence was in California, and thereupon the said assessor made a return that plaintiff, under the head of “money owing by solvent debtors,” had due him and taxable under said act the sum of $129,654.42, and that the said commissioners added fifty per cent thereto, making the aggregate sum of $194,481.33; and that upon the hearing of appeals before the commissioners, the latter refused to strike off the assessment; praying: 1. That the assessment be vacated and set aside. 2. That the collection of tax thereon be restrained by injunction. 3. For general relief.
The respondents having answered, denying the averment of the plaintiff as to his residence in California, the cause was put *110at issue and referred to Mr. S. W. Williams, as examiner and master.
On November 2,1889, tbe master filed a report finding, inter alia, as follows:
In December, 1885,- tbe plaintiff was living with his family-in a dwelling or residence situated' in Towanda township, Bradford county, and had lived therein, and had been the owner of the dwelling for several years prior thereto, furnishing the house, supporting the family, and paying all bills therefor. In December, 1885, he was a widower, and had been for some years, and his family consisted of his children. He was twenty-three years of age when he came to Towanda, and sixty-eight years of age in 1885. He continued the owner of the residence or dwelling in Towanda township, until the taking of the testimony in this case in March, 1889.
The master found further, that from about December 1, 1884, the plaintiff made visits to his married daughters in Iowa and California, and spent the winters in the latter state; that he returned to Towanda township each spring of the year and did, business there, as usual, his business being the lending of money, buying notes, etc.; that he frequently stated that his health was improved in California and he intended to make his residence at Almeda, in that state; that in his absence from Pennsylvania his family was left in his dwelling in Towanda township, he paying the family expenses; that in the spring of 1887 he voted in California, but paid no taxes there except upon a mortgage he held upon property owned by his son-in-law.
Upon the foregoing, facts, and others of like character, the master, considering Guler’s Case, 1 Binn. 349; Fry’s Case, 71 Pa. 302; Hindman’s App., 85 Pa. 466; Pfoutz v. Comford, 36 Pa. 420; Carey’s App., 75 Pa. 201; Hood’s Est., 21 Pa. 106, found and held “ that under all the evidence and circumstances of this case, the plaintiff’s residence or domicile was in Towanda township, Bradford county, on and prior to January 3, 1887,” and recommended a decree dismissing the plaintiff’s bill, with costs.
Exceptions filed chiefly to his findings of facts, were overruled by the master and filed with his report. After argument thereof before Moeectw, P. J., the exceptions were dismissed *111without opinion filed, the master’s report confirmed, and a decree entered as recommended by the master. Thereupon the plaintiff took this appeal, specifying the dismissal of the plaintiff’s exceptions for error.
Mr. If A. Overton (with him Mr. B. M. Pee/c), for the appellant.
As to the weight due to a master’s report, when the fact found is a deduction from other facts, counsel cited: Phillips’s App., 68 Pa. 180; Kutz’s App., 100 Pa. 75.
Mr. I. A. Oaliff, for the appellees, was not heard.
In the brief filed, as to the conclusiveness of a master’s report, counsel cited: Sproull’s App., 71 Pa. 137; Burton’s App., 93 Pa. 214; Bedell’s App., 87 Pa. 510. That the intent to change a domicile and the act of change must concur: Lyman v. Fiske, 124 Mass. 132; 2 Pars, on Cont., *580; Hindman’s App., 85 Pa. 469.