Chambers v. Hathaway

SHAW, J.

This is a proceeding by the state controller, under the Inheritance Tax Act, for the collection of inheritance tax alleged to be due upon the estate of Frederick N.

[105]

Finney, deceased. Julia A. Hathaway is interested in said estate as one of the executors of the will of said decedent under an appointment by the court of probate in the state of Wisconsin, and also as a beneficiary under his will. She alone has appealed from the decree of the court below in favor of the controller.

The complaint alleges that Finney died the owner of notes, bonds, and stocks of the value of one hundred and thirty-eight thousand three hundred dollars, and other property, and that at the time of his death he was a resident of Los Angeles County, California. The answer denied the allegations as to the residence of the decedent and averred that at the time of his death he was a resident of Milwaukee, Wisconsin. Upon this issue the court below decided in favor of the plaintiff. The sole point for consideration upon this appeal is the question whether the decision on that issue is supported by substantial evidence.

The rules for determining the place of residence of a person are thus stated in the Political Code (sec. 52) :

“Every person has, in law, a residence. In determining the place of residence the following rules are to be observed:

“1. It is the place where one remains when not called elsewhere for labor or other special temporary purpose, and to which he returns in seasons of repose;

“2. There can only be one residence;

“3. A residence cannot be lost until another is gained

• • '

9

“7. The residence can be changed only by the union of act and intent.”

Clauses 4, 5, and 6 of the above section have no application to the present case.

[1]

Where a person has two dwellings in different places and resides a part of his time in one place and a part of the time in another alternatively, the question which of the two places is his legal residence is almost altogether a question of his intent. “If a party has two residences, that will ’le esteemed his domicile which he himself selects or deems to be his home, or which appears to be the center of his affairs, or where he votes or exercises the rights and duties of a citizen.” (9 R. C. L. 558; see, also, 19 Corpus Juris, p. 401.)