In disagreeing with the majority opinion, which I do reluctantly, it is only because a careful consideration of the entire record convinces me that the Commonwealth has not met the burden of proof imposed by the circumstances of this case. It also demonstrates to my mind the efficacy of the rule that the findings and conclusions of the trial court should be accepted unless they are unsupported *Page 180 by evidence or are at direct variance with established law.
It is my opinion that the decision of the majority is opposed to the established law, and unsettles it as related to domicile. It makes the determination of that question more concerned with the length of time one may spend in the places claimed as residences or domiciles than with the intent to establish a domicile or retain a status already acquired.
It is admitted that Dr. Dorrance was domiciled in Cinnaminson prior to 1925. The burden then rested on the Commonwealth to show that this domicile had been abandoned. While section 17 of the American Law Institute, Restatement, "Conflict of Laws," states, "To acquire a domicile of choice, a person must establish a dwelling-place with the intention of making it his home," and "The fact of physical presence at a dwelling-place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicile takes place," yet the converse of this proposition is true in relation to losing a domicile once established. To retain it the intention must persist to make it a home, and physical presence even for a moment concurring with that intent will be sufficient to preserve that status. Measured by such a rule the estate of Dr. Dorrance easily sustains its case.
The Commonwealth, being required to show that his domicile at Cinnaminson had been abandoned, and that he intended to make Radnor his permanent home or "preëminent headquarters," cannot assume that because he built a fine residence at Radnor with a more expensive maintenance cost he intended such abandonment or to acquire a domicile at Radnor. Neither the size of the building, the number of servants nor the expenses connected therewith are persuasive as showing abandonment of a domicile long acquired and retained through acts which show a positive intention to hold such domicile. Nor may the fact that much of the family's social *Page 181 life centered about the new residence be so considered. All such acts are consistent with and not hostile to the retention of domicile in New Jersey. During the summer and winter his residence was at Bar Harbor, Jamestown, Palm Beach, or abroad; the Radnor residence was closed when the family went away in the summer, but Cinnaminson was kept open the year round to receive him and his family. How much of the balance of the time he spent at either of these places does not definitely appear. It is certain, however, that much of that time was spent at Radnor, but the length of time spent at any particular place does not determine domicile. Concurrent with physical presence in a place for any time, there must be the intent to make the place a home. Intention is a state of mind, evidenced, it is true, by acts, but it may be shown by words as well.
The majority opinion speaks rather censuringly of Dr. Dorrance because he desired to retain New Jersey as his residence rather than Pennsylvania. His efforts in that direction are styled as "a claimed sentimental attachment," "to give color to his assertion," "to bolster his assertion that he retained domicile in New Jersey." His church affiliation is described as being "to avoid the appearance of identifying himself with the community in which he resided with his family." He wished to retain New Jersey citizenship because in that state his taxes would not be as heavy as in this State. I cannot see any good reason why a man should be censured when he wishes to avoid a heavy tax rate such as we have in this State, even if it is necessary for him to live in another state. It is not contrary to law to reside in New Jersey rather than Pennsylvania, even if the real purpose is to avoid taxes. "If one has the legal right to do a particular thing, the law will not inquire into his motive for doing it": Beirne v. Continental-Equitable Title Trust Co., 307 Pa. 570; Vetter's Est., 308 Pa. 447. Moreover, even these criticisms emphasize the deliberate intention to retain his domicile in New Jersey. He had *Page 182 his domicile there, wished to retain it, and while he wished to have a residence in Pennsylvania, surely the fact of his acquiring this residence should not impose on him the obligation of our citizenship with the resultant liability for our taxes.
Dr. Dorrance had other reasons for wishing to remain a resident of New Jersey. Our laws as to the devolution of property are different from theirs, as are also our laws with regard to the execution of trusts.
I cannot see Dr. Dorrance's residence in Pennsylvania as other than a "show place," as Mr. Justice SCHAFFER has stated. It was an additional place of abode where he and his family might entertain on a larger scale than was possible at the New Jersey home, and where they might be nearer the social life of Pennsylvania. If the penalty for such acts in Pennsylvania is to be assessed with our death taxes, it seems to me that Pennsylvania is assuming a very difficult rôle in the sisterhood of states. Radnor was not the home of Dr. Dorrance, nor was it his domicile, and whatever his wife or his children might have thought proper or convenient in this respect, and whatever they did, should not be visited on Dr. Dorrance; nor should that be held conclusive in preference to acts in which he did everything in his power to retain his residence in New Jersey. See Mr. Justice SCHAFFER's dissenting opinion on the facts. He not only voted there, he had his church residence there, he was assessed there for personal property taxes, he was appointed by the governor of that state on a commission, and all his documents on which his address was necessary named New Jersey as his residence.
While the case might seem difficult in some of its aspects, it seems to me that the majority opinion has lost sight of what Dr. Dorrance himself did, and has stressed too heavily what his family did.
I would affirm the judgment of the court below. *Page 183