Hegeman v. Fox

The Surrogate. — In this case the widow of the deceased has refused the provision made for her in the will of her husband, and has elected to take her dower.

She also alleges that her husband, at the time of his death, was a resident of, and domiciled in, the State of Florida, and that by the laws of Florida, she, as such widow, is entitled *302to one-third of all the personal estate of which her husband died possessed, as her share thereof.

It appears to be conceded by all of the parties that the law of the domicil governs in the distribution of the assets in this matter. But the executors and the guardian of the infant children of Mr. Moore deny that Mr. Moore was, at the time of his death, domiciled in the State of Florida, and allege that his domicil was in this State.

Upon these allegations a large amount of testimony has been taken, from which it appears that Mr. Moore was born in the State of Massachusetts, where he resided until about the time he became of age. Then he afterwards resided in several places, until about the year 1816, when he came to this State and engaged in business in the city of ¡New York. He soon after took up his residence in the city of Williamsbni'gh, at which place he purchased and kept a house, accumulated property, paid taxes, and assumed the privileges of citizenship.

All of counsel on both sides appear to take it for granted that Mr. Moore had lost his domicil of origin, and that he was, from the time he settled in Williamsburgh, up to the year 1855, domiciled in this State. During that year (1855) he sold his house and furniture, closed up his business, and started (Oct. 20th, 1855) for the South. In the early part of the year 1856 he purchased a farm or plantation near Jacksonville, in the State of Florida. He also purchased negroes, made some attempts to stock the farm and to improve it. He also induced a brother, then residing in Ohio, to move with his family to Florida, to act as overseer of the plantation. He continued to reside upon this farm until his death, on or about February 10, 1857.

It also appears that Mr. Moore had, for some time previous to his leaving Williamsburgh for the South, been in poor health; that the reason for his going South was, that he could not stand the climate of the ¡North ; that he could not live here; and hoped to prolong his life by living in a warmer climate.

*303The question in this case is, not whether Mr. Moore was compelled by ill health to remove to the South, about which there cannot be a doubt, but whether or not, when he was convinced that he could not live here, but could live at the South, he determined to relinquish his domicil here and to become a permanent resident of some place at the South. Upon this point the testimony of Mr. Demill and Mr. Field is clear, that he broke up his family residence in Williams-burgh and departed for the South ; and that he declared at the time of his departure “ that he never expected to return,” “ that he expected to make the South his home.”

If these witnesses are to be believed (and they appear to have occupied confidential relations with Mr. Moore, and to be in no way interested in the result of this matter, and to have no motives to conceal or misstate facts), Mr. Moore left with no intention of ever returning to reside here, but, on the contrary, with a fixed intention of residing at the South for the balance of his life. The letters of Mr. Moore, written aftei he arrived in Florida, are to the same effect. In one of them he states that he is now fully settled in his new home; and in another, that he is not liable to personal taxation in Kings county, because he did not reside there. His acts while in Florida go to show that he intended to make his domicil in that State. He purchased a plantation, sent for his children, and took means to educate them there. He commenced a suit in one of the courts of Florida, and put himself upon the record as a citizen of that State.

In my opinion, it is no matter what were the inducements for his leaving here and going South, provided he left with the intention of residing permanently at the South. Many persons have left a domicil in other States, as Mr. Moore did, and come to Hew York for the purpose of bettering their circumstances, and not because they preferred Hew York to the place of their birth as a residence, other things being equal. They came here from choice, and with the intention of residing permanently ; but they left their domicil of origin upon a degree of compulsion, being satisfied that it *304was not for their interest to remain there. Thus 'Mr. Moore, in 1855, when he believed his health would be improved or his life prolonged by living in a warmer climate, determined to relinquish his domicil here, and to .fix a new one at the South. t

It is true, that some testimony has been given to show that he left this State with an intention of returning whenever the condition of his health should permit it. This testimony is not, however, of a satisfactory character. The witnesses do not appear to have occupied any confidential relations with Mr. Moore, and his declaration as given by them may have been made more for the purpose of answering questions put to him, than for disclosing his real purposes. Other testimony has been introduced to show that Mr. Moore, while at the South, and after he had purchased his plantation, expressed an intention of returning to the North. It does not show, however, that when he left his domicil in Williamsburgh it was with the intention of ever returning to it or to this State, and cannot therefore be considered as affecting the testimony of the witnesses Demill and Field, or as rebutting any of the testimony which goes to prove that he left Williamsburgh with the intention of residing permanently at the South.

I feel compelled, therefore, to decide that Mr. A. D. Moore was, at the time of his death, domiciled in Florida. And a decree must be entered, giving to his widow the portion of the estate allowed to her by the laws of Florida, as her distributive share.